Appeal from the Decree of the 4th Judicial District Court for Utah County, Honorable Boyd L. Park, Presiding

Utah Supreme Court

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APPELLEE\u27S REPLY BRIEF ON PETITION FOR WRIT OF CERTIORARI APPEAL FROM THE DECREE OF DIVORCE OF THE FOURTH JUDICIAL DISTRICT COURT OF UTAH COUNTY, THE HON. BOYD L. PARK, PRESIDING

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Bruno D\u27Aston v. Dorothy D\u27Aston : Reply to Brief in Opposition

Bruno D\u27Aston v. Dorothy D\u27Aston : Brief in Opposition to Certiorari

Brigham Young University Law School

Brigham Young University Law SchoolBYU Law Digital CommonsUtah Supreme Court Briefs1990Bruno D'Aston v. Dorothy D'Aston : Reply to Briefin OppositionUtah Supreme CourtFollow this and additional works at: https://digitalcommons.law.byu.edu/byu_sc1Part of the Law CommonsOriginal Brief Submitted to the Utah Supreme Court; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.Brian C. Harrison; Harris, Carter & Harrison; attorney for appellant.S. Rex Lewis, Leslie W. Slaugh; Howard, Lewis & Petersen; attorneys for appellee.This Legal Brief is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme CourtBriefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available athttp://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at hunterlawlibrary@byu.edu withquestions or feedback.Recommended CitationLegal Brief, D'Aston v. D'Aston, No. 900452.00 (Utah Supreme Court, 1990).https://digitalcommons.law.byu.edu/byu_sc1/3211CUMCNT U .9 ) )CKET NO. UTAH SUPKtMt uuurxis BRIEF - ^ V ^ L -IN THE SUPREME COURT OF THE STATE OF UTAH BRUNO D'ASTON, Plaintiff-Appellee, vs. DOROTHY D'ASTON, et al., Defendant-Appellant. Case No. 900452 APPELLEE'S REPLY BRIEF ON PETITION FOR WRIT OF CERTIORARI APPEAL FROM THE DECREE OF DIVORCE OF THE FOURTH JUDICIAL DISTRICT COURT OF UTAH COUNTY, THE HON. BOYD L. PARK, PRESIDING. S. REX LEWIS and LESLIE W. SLAUGH, for: HOWARD, LEWIS & PETERSEN 120 East 3 00 North Provo, Utah 84601 ATTORNEYS FOR PLAINTIFF-APPELLEE BRIAN C. HARRISON, for: HARRIS, CARTER & HARRISON 3 325 No. University Avenue Suite 200 Provo, Utah 84604 ATTORNEYS FOR DEFENDANT-APPELLANT FiLEO DEU 3 1 1990 Clerk, Supreme Court, Utah IN THE SUPREME COURT OF THE STATE OF UTAH BRUNO D'ASTON, Plaintiff-Appellee, vs. DOROTHY D'ASTON, et al., Defendant-Appellant, Case No. 900452 APPELLEE'S REPLY BRIEF ON PETITION FOR WRIT OF CERTIORARI APPEAL FROM THE DECREE OF DIVORCE OF THE FOURTH JUDICIAL DISTRICT COURT OF UTAH COUNTY, THE HON. BOYD L. PARK, PRESIDING. S. REX LEWIS and LESLIE W. SLAUGH, for: HOWARD, LEWIS & PETERSEN 120 East 3 00 North Provo, Utah 84601 ATTORNEYS FOR PLAINTIFF-APPELLEE BRIAN C. HARRISON, for: HARRIS, CARTER & HARRISON 3 325 No. University Avenue Suite 200 Provo, Utah 84604 ATTORNEYS FOR DEFENDANT-APPELLANT TABLE OP CONTENTS TABLE OF AUTHORITIES ii OBJECTION TO WIFE'S FACTUAL STATEMENTS 1 HUSBAND DOES NOT RELY ON A "BARE ALLEGATION" OF THEFT. . . . 2 i TABLE OF AUTHORITIES Case Cited; Bradshaw v. Kershaw. 627 P.2d 528 (Utah 1981) 1 ii IN THE SUPREME COURT OF THE STATE OF UTAH BRUNO D/ASTON, Plaintiff-Appellee, vs. DOROTHY D'ASTON, et al., Defendant-Appellant. Case No. 900452 APPELLEE'S REPLY BRIEF ON PETITION FOR WRIT OF CERTIORARI OBJECTION TO WIFE'S FACTUAL STATEMENTS Bruno D'Aston ("Husband") objects to the statements made by Dorothy D'Aston ("Wife") in the "Course of Proceedings and Disposi-tion" section of Appellant's Brief in Opposition, concerning the trial court rulings subsequent to the filing of Husband's petition for writ of certiorari. The rulings referred to by Wife occurred after the Court of Appeals issued its opinion, and should not be considered by this Court in reviewing the correctness of that opinion. In any event, the rulings confirm the fact that Wife was in contempt of the trial court during the entire time the appeal was pending before the Court of Appeals.1 Wife should not have been granted relief through the judicial system while she remained in contempt of that system. 1The fact that Wife allegedly did not have the ability to comply with the trial court's order in November, 1990, has no bearing on the question of whether she was in contempt of court. Her ability to comply was only relevant to the issue of whether coercive imprisonment should be ordered. Bradshaw v. Kershaw, 627 P.2d 528, 531 (Utah 1981). Husband further objects to many of the statements set forth in "Statement of the Case" section of Wife's Brief on the grounds that they are unsupported by citation to the record, and in fact contrary to the record, and appear calculated to inflame and prejudice this Court. HUSBAND DOES NOT RELY ON A "BARE ALLEGATION" OF THEFT. In Point III of Appellant's Brief in Opposition, Wife states that "Bruno argues that his allegation of theft against Dorothy constitutes a unique and compelling circumstance which would justify the court in dividing Dorothy's separate property with him." (Wife's Brief, page 15.) Husband has never made such an argument, and objects to Wife's characterization of the arguments. The issue of who stole from whom in this case has never been resolved by the trial court. Contrary to Wife's claim, the lack of a finding on the issue is not because of any failure of proof. Husband presented evidence which would support a finding of theft by Wife. Rather, the trial court did not decide the issue because it was not necessary in light of the trial court's decision on other issues. Husband does not ask that this Court assume that Wife was guilty of theft. Husband asks only that the trial court be allowed to consider the evidence, and make a ruling based on the evidence. If the trial court determines that Wife stole Husband's property, the trial court should be permitted to consider that as a compel-ling circumstance justifying division of Wife's separate property. 2 Again, Husband does not claim at this point that a finding of theft will compel the trial court to divide the separate property, only that the trial court should be permitted to consider the issue. The opinion of the Court of Appeals can be read as improperly restricting the discretion of the trial court. The opinion should be vacated. The new trial of this case ordered by the Court of Appeals should be a complete new trial, on all issues. DATED this 27th day of December, 1990. S. REX LEWIS and LESLIE W. SLAUGH, for: HOWARD, LEWIS & PETERSEN Attorneys for Respondent MAILING CERTIFICATE I hereby certify that four true and correct copies of the foregoing were mailed to the following, postage prepaid, this 27th day of December, 1990. Brian C. Harrison, for: HARRIS, CARTER & HARRISON 3 32 5 No. University Avenue Suite 200 Provo, Utah 84 604 Attorneys for Appellant 

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Bruno D\u27Aston v. Dorothy D\u27Aston : Brief in Opposition to Certiorari

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