Bruno D'Aston v. Dorothy D'Aston, et al : Brief of Appellant

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1989

Bruno D'Aston v. Dorothy D'Aston, et al : Brief ofAppellantUtah Court of Appeals

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Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.S. Rex Lewis; Attorney for Plaintiff and Respondent.Brian C. Harrison; Attorney for Defendant and Appellant.

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TAH DCUMENT P U IN THE COURT OF APPEALS OF THE STATE OF UTAH I 10 OCKET NO.

BRUNO D'ASTON,

Plaintiff and Respondent,

-vs-

DOROTHY D'ASTON,etal,

Defendant and Appellant.

Court of Appeals No. 89-0050 CA

Priority Classification 14-B

BRIEF OF THE APPELLANT

Appeal from the Decree of the 4th Judicial District Court for Utah County,

Honorable Boyd L. Park, Presiding.

Brian C. Harrison Suite 200 3325 N. University Avenue Provo, UT 84604

Attorney for Defendant and Appellant

S. Rex Lewis 120 East 300 North P0 O. Box 778 Provo, UT 84603

Attorney for Plaintiff and Respondent.

• : : )

r^r r^jj, CQUR'l in AIM'KAI.N ul1 I lli< SI \l'h i)l- iUAH

BRUNO D'ASTON,


•vs-

DOROTHY IY ASTON,

Defendant and Appellant,

LISA \STO\T and ERIC ASTON,

Couri of Appeals No tf*> DON) CA

l""i i111 ii v Liassuication I i III

BRIEF OF "THE APPELLANT

Appeal from the L . V K ^ , District Court for Ltah Count.

Honorable Boyd L, Park, Presiding,

S. Rex Lewis 120 East 300 v ^ ^ P. O. Box 778 Provo, UT 8-' =

Attornex ."la mil I and Respondent

Brian C. I larrison Suite 200 3325 N, 11oivci *ov A L i min Provo, Ul 84WM

AXttorney for Defendant and Appellant

TABLE OF CONTENTS

NATURE OF THE PROCEEDINGS 1

STATEMENT OF ISSUES 1

STATEMENT OF THE CASE 2

DISPOSITION IN THE LOWER COURT . 4

RELIEF SOUGHT ON APPEAL 5

STATEMENT OF FACTS 5

SUMMARY OF ARGUMENT 11

ARGUMENT

POINT I: THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT FINDING OF FACT #6, BUT RATHER, THE 1973 PROPERTY SETTLEMENT AGREEMENT IS VALID AND BINDING BETWEEN THE PARTIES 11

POINT II: THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT FINDING OF FACT #16 AND #21, BUT RATHER, ALIMONY SHOULD BE AWARDED APPELLANT 18

POINT III: THE CONDUCT OF THE TRIAL

JUDGE CONSTITUTES JUDICIAL BIAS 23

CONCLUSION 2 5

ADDENDUM 27

TABLE OF AUTHORITIES

Statutes and Rules

Rule 59 of the Utah Rules of Civil Procedure 4

Calif. Civil Code Section 5103 (West) (1983 as amended)) . . . . 17

Cases

In re marriage of Young. 682 P.2d 1233. 1236 (Colo. Ct. App. 1984) 14

O'Dell v. O'Dell. 238 Iowa. 434. 26 N. W. P.2d 401. 412 (1947) . . 14

Mark Steel Corporation v. EIMCO Corporation. 548 P.2d 892. 894

(Utahl976) 15

Pugh v. Stockdale and Company. 570 P.2d 1027. 1029

(Utah 1977) 15

Minshewv Chevron Oil Company 575 P.2d 192. 194

(Utah 1978) 15

Berman v. Berman 749 P.2d 1271 (Utah App. 1988) 15

Huck v. Huck 734 P.2d 417 (Utah 1986) 15

Unander v. Unander. 264 or. 102. 506 P.2d 719. 722 (1973) . . . 15

Perkins v. Sunset Tel, and Tel. Company. 155 Cal. 712. 103

P. 190 (1909) 16

Sande 83 Idaho 233. 360 P. 2d 998 (1961) 16

Trujillo v. Padilla. 79 N. M. 245. 442 P. 2d 203 (1968) 16

In re Estate of Harver 449 P. 2d7 16

18 ALR 2d 767. Section 5 16

Dawlev 551 P. 2d 323 (1976) 17

Espy v. Espv 236 Cal. Rptr. 755 (Cal. App. 1 Dist. 1987) . . . . 17

ii

In re marriage of Moore (1980) 113 Cal. App. 3d 22. 27. 169

Cal. Rptr. 619 17

Esserman v. Esserman (1982) 136 Cal. App. 3d 572. 578. 186

Cal. Rptr.329 17

Bradley v. Superior Court (1957) 48 Cal. 2d 509. 519. 310

P.2d 634 18

Gardner v. Gardner 748 P.2d 1076. 1081 (Utah 1988) 19

Paffel v. Paffel 732 P.2d 96. 100 (Utah 1986) 19

Rasband v. Rasband 752 P.2d 1331 (Utah App. 1988) 19

Smith v. Smith 726 P.2d 423. 426 (Utah 1986) 19

Naranio v. Naranio 751 P.2d 1144 (Utah App. 1988) 22

Jones v. Jones 700 P.2d 1075 (Utah 1985) 23

Savage v. Savage 658 P.2d 1205 (Utah 1983) 23

Haslam v. Morrison. 113 Utah 14. 190 P.2d 520. 523 (1948) . . . 23

Marchant v. Marchant 743 P.2d 199 (Utah App. 1987) 24

STATEMENT OF JURISDICTION

Jurisdiction in the Court of Appeals is conferred by virtue of

Section 78-2a-3-(2)-(h), Utah Code Annotated 1953, as amended and

Rule 3 of the Rules of the Utah Court of Appeals.

iv

IN THE COURT OF APPEALS OF THE STATE OF UTAH

BRUNO UASTON,


•vs-

DOROTHY D'ASTON, et al,

Defendant and Appellant.

Court of Appeals No. 89-0050 CA

Priority Classification 14-B

BRIEF OF THE APPELLANT

NATURE OF THE PROCEEDINGS

This appeal is from a final Decree of Divorce of the Fourth Judicial

District Court entered on January 12, 1989.

STATEMENT OF ISSUES

The issues presented by the appeal are:

1. Is the evidence sufficient to support Findings of Fact #6, #16

and #21 made by the District Court.

2. Was the ruling by the District Court holding that the 1973

property settlement agreement was invalid an error in law.

3. Was the denial of alimony after a thirty-five (35) year

marriage an error in law.

4. Did the conduct of the trial court constitute judicial bias.

STATEMENT OF THE CASE

In this case, Appellant, Dorothy D'Aston, and Respondent, Bruno

DfAston, were married in September 1953 and continued their state of

matrimony for over thirty-five (35) years.

In 1973, Bruno proposed a written property settlement

agreement to Dorothy which was executed by both parties, notarized

and duly recorded in the State of California.

Under the 1973 agreement, Dorothy received two parcels of real

estate and cash. Bruno received all real property outside the United

States, all personal property in his possession and all patents and patent

rights, both foreign and domestic.

In addition, the agreement provided that property acquired by

either party in their own name would be the separate property of that

person.

Finally, the agreement provided that the parties would execute

documents to implement the agreement, and that they had each read

the agreement, been advised by counsel and were not under duress,

fraud or undue influence.

On May 2, 1986, Bruno filed this action for divorce and asserted

that Dorothy's property should be divided with him and further

asserted that his property had been stolen.

On July 21, 1986, Sidney Troxell, Bruno's California attorney, who

had actually prepared the 1973 agreement, sent a letter to coin dealers

advising that Bruno's coins, with a value in excess of $1 million had

been stolen.

2

On July 31, 1986, Sidney Troxell sent a letter to Dorothy's Utah

attorney which stated that the 1973 agreement was in full force and

effect.

On August 21, 1986, Bruno assigned his rights under the 1973

agreement to his California attorney, Sidney Troxell.

On August 25, 1986, Sidney Troxell sent a letter to Dorothy

asserting his claim to all property awarded to Bruno under the 1973

agreement.

On September 5, 1986, Sidney Troxell filed a California lawsuit

against Dorothy in his own behalf and asserted that she had stolen

$1.5 million in coins, gold and silver from Bruno which was his separate

property under the 1973 agreement.

At trial however, Bruno claimed that the 1973 agreement was

invalid, that he had virtually no assets, that Dorothy or their son, Eric,

had stolen his property and records, and that he should be awarded

one-half of Dorothy's property.

Dorothy testified that all property had been transferred in 1973

according to the property settlement agreement. She produced detailed

original documents and original checks for each asset owned by her

after 1973.

Bruno produced virtually no original documents, claiming that

they had been stolen, but instead produced hand-written list after list

of highly detailed inventories of coins, gold and silver that he claimed

were owned by him over a period of thirty-five (35) years.

Bruno engaged in highly profitable buying, selling and trading of

coins, gold, silver and exotic cars during the period of 1974 thru 1986.

He admitted that he filed no income tax returns after 1974. He was

convicted of a felony in 1973. He did not produce a financial

declaration as required by the Rules of Practice in the Fourth District

Court setting forth his assets, income and debts.

After the trial, the Court denied Dorothy's Motion for Oral

Argument, denied her Motion to Reopen under Rule 59 of the Utah

Rules of Civil Procedure, denied her Motion to Review Trial Transcript

and denied her Motion to Amend or Grant a New Trial.

In the course of these denials, the Court stated, in camera, that it

did not believe in marital agreements and that if Dorothy would not

submit to a polygraph examination, the Court would divide her property

with Bruno. At no time after the conclusion of the presentation of

evidence did the Court allow oral argument by Dorothy's counsel.

The Court ruled that the 1973 property settlement agreement was

invalid, that Dorothy's property should be divided with Bruno and that

Dorothy should receive no alimony.

All requests for oral argument after trial and after each of four (4)

post-trial motions were denied.

DISPOSITION IN THE LOWER COURT

Trial was held on April 18, 19, 20 and 21, 1988, before the District

Court, sitting without a jury.

A Memorandum Decision was issued November 17, 1988.

Findings of Fact, Conclusions of Law and a Decree of Divorce were

entered on December 15, 1988 (See Addendum, Exhibits 2 and 3).

4

Appellant filed a Motion to Amend or Grant a New Trial on

December 23, 1988. Her Request for Hearing dated January 5, 1989,

and her Motion to Amend or Grant a New Trial were denied by the

District Court on January 12, 1989.

RELIEF SOUGHT ON APPEAL

Appellant seeks an order of this Court reversing the Decree

granted below, ruling that the 1973 property settlement agreement was

valid and binding between the parties, providing that alimony be paid

to appellant and finding that the conduct of the District Court

constituted judicial bias.

STATEMENT OF FACTS

1. Plaintiff, Bruno D'Aston, and Defendant, Dorothy D'Aston,

were married September 22, 1953, in New York City, New York (Page

1402 Line 9-12 - Record on Appeal).

2. Bruno was 29 years of age and Dorothy was 21 when they

were married (Page 1768 Line 2, Page 1622 Line 15 - Record on

Appeal).

3. At the time of the marriage, Dorothy testified that Bruno

had $5,000.00 cash and a 1952 Oldsmobile (Page 1402 Line 18-23 -

Record on Appeal).

4. At the time of the marriage, Bruno testified that he had

patents, stamps, coins, silver and gold worth $567,700.00 (Page 686

Line 21 thru Page 687 Line 14 - Record on Appeal and Exhibit 8).

5. During the marriage, Bruno became a multi-millionaire by

his work at Aston Laboratories and by buying, selling and trading coins,

silver, gold and exotic cars (Page 599 Line 17 thru Page 600 Line 8 -

Record on Appeal).

6. During the marriage, Bruno applied for and received many

patents, which he valued at not less than $100,000.00 (Page 825 Line

23 thru Page 826 Line 6, Page 830 Line 9-24 - Record on Appeal and

Exhibit 35).

7. On March 1, 1973, Bruno presented a property settlement

agreement to Dorothy for her consideration, which had been prepared

by Sidney Troxell, Bruno's attorney in California (Page 833 Line 21 thru

Page 834 Line 10, Page 1413 Line 8 thru Page 1414 Line 14 - Record on

Appeal and Exhibit 37).

8. At the time of executing the 1973 property settlement

agreement, the parties owned a home in Los Angeles and real estate in

the City of Industry, California (Page 838 Line 1-3, Page 1414

Line 15-19 - Record on Appeal and Exhibit 37).

9. At the time of executing the 1973 property settlement

agreement, Bruno owned over $1 million in coins (Page 796 Line 12

thru Page 797 Line 3 - Record on Appeal).

10. At the time of executing the 1973 agreement, Bruno owned

a valuable collection of cars (Page 797 Line 17 thru Page 801 Line 12 -

Record on Appeal and Exhibit 32a-32k).

11. The 1973 agreement was notarized on February 28, 1975,

by Connie Young in Los Angeles, California, and recorded on March 7,

1975, in Los Angeles County, California (Exhibit 37).

6

12. On March 12, 1973, twelve (12) days after the property

settlement agreement was originally signed by the parties, Bruno

deeded the Los Angeles house and the City of Industry property to

Dorothy (Exhibit 38 and 39).

13. Bruno also conveyed cash and bank accounts as per the

agreement (Page 1414 Line 20-21 - Record on Appeal).

14. Dorothy conveyed all her interest in foreign real estate,

coins, cars, patents, silver and gold to Bruno (Page 1415 Line 8 thru

Page 1416 Line 15 - Record on Appeal).

15. After 1973, Dorothy kept careful records containing

documents which showed each purchase and sale of real property and

checks evidencing her payments (Exhibits 37, 38, 39, 91, 92, 106, 107,

108, 108a, 109, 109a, 110, 111, 112, 113, 114, 115, 129, 129a, 130,

130a, 131, 132, 133, 134, 135, 136, 137, 138, 139, 143, 144, 145, 146,

148, 149 and 149a).

16. After moving to Provo, Utah, and purchasing a home,

Dorothy kept careful records of each check paid for remodeling and

improvements (Exhibits 147 and 147a).

17. By contrast, Bruno claimed to have retired in 1974, that he

earned no income from 1974 thru 1986 and that he had filed no tax

returns (Page 831 Line 22 thru Page 832 Line 15, Page 600 Line 9-18 -

Record on Appeal).

18. Furthermore, Bruno claimed to have no records because

they were stolen. He initially claimed that one four-drawer file cabinet

contained all of his records but later claimed that he had twelve filing

cabinets containing his records (Page 1809 Line 6 thru Page 1810

Line 20 - Record on Appeal).

19. On April 30, 1986, Dorothy told Bruno to leave, that she

could not put up with his lies anymore and that the marriage was

finished (Page 1667 Line 7 thru Page 1668 Line 6 - Record on Appeal).

20. After April 30, 1986, Bruno went to stay with his friend Ray

Coleman, a retired Provo policeman (Page 1181 Line 14-23 and

Page 1887 Line 22-25 - Record on Appeal).

21 . On May 2, 1986, Bruno filed a Complaint for divorce (Page

1-4 - Record on Appeal).

22. On May 20 and 21, 1986, some twenty (20) days after the

alleged incident of April 30, 1986, Bruno had Officer Phillips and Officer

Scott prepare police incident reports (Page 1230 Line 21-23, Page 1568

Line 25 thru Page 1569 Line 1-5 - Record on Appeal).

23. On July 21, 1986, Sidney Troxell, Bruno's California attorney,

who had actually prepared the 1973 property settlement agreement,

sent a letter to coin dealers advising that Bruno's coins, with a value in

excess of $1 million, had been stolen (Page 1914 - Record on Appeal).

24. On July 31, 1986, Sidney Troxell sent a letter to Dorothy

which stated that the 1973 agreement was in full force and effect

(Exhibit 41).

25. On August 21, 1986, Bruno assigned his rights under the

1973 agreement to his attorney, Sidney Troxell, and Troxell filed a

lawsuit in California against Dorothy (Exhibit 101).

26. At trial, Bruno claimed that the 1973 agreement was invalid

(Page 600 Line 23 thru Page 602 Line 11, Page 754 Line 2 thru


8

27. Bruno claimed that the agreement was invalid because there

were pending lawsuits at the time (Page 962 Line 13 thru Page 964


28. Bruno admitted that his alleged lawsuits were resolved in

any event before the agreement was notarized and recorded in 1975

(Page 964 Line 1-3 - Record on Appeal).

29. Dorothy had no knowledge of any pending lawsuits relating

to the 1973 agreement until the divorce action was filed and claimed no

duress, fraud or undue influence in the execution of the agreement

(Page 1413 Line 8 thru Page 1414 Line 21, Page 1424 Line 15 thru


30. Bruno admitted that he did not execute the agreement

under duress, fraud or undue influence (Page 833 Line 21 thru


31 . The parties acknowledged that Dorothy had worked briefly

in the 1950's, that she was fifty-six (56) years old and that she had no

income and no educational degree (Page 687 Line 24 thru Page 688

Line 8, Page 1412 Line 17-18 - Record on Appeal).

32. On January 15, 1988, the District Court ruled that a

polygraph test was not admissible (Page 628 Line 17-22 - Record on

Appeal).

33. However, on April 19, 1988, the District Court allowed

references to polygraph test results (Page 1074 Line 15 thru Page 1079


34. At trial, the District Court indicated that Bruno's income

producing activities were not material to the case (Page 1199 Line 21

thru Page 1203 Line 15 - Record on Appeal).

9

35. At trial, the District Court refused to allow Exhibit 101 to be

admitted, stating that Dorothy had "plenty of exhibits" (Page 1421 Line

4 thru Page 1424 Line 13 - Record on Appeal).

36. At the end of trial, the District Court allowed Bruno's lawyer

to reopen and amend his Complaint to claim attorney's fees (Page 1493

Line 11 thru Page 1494 Line 13 - Record on Appeal).

37. At the end of trial, the District Court ordered that written

Findings of Fact and Conclusions of Law be submitted without closing

oral argument (Page 1619 Line 5 thru Page 1616 Line 3 - Record on

Appeal).

38. After trial, the District Court refused Dorothy's request for

oral arguments, denied her Motion to Reopen, denied her Motion to

Review Trial Transcript and denied her Motion to Amend or Grant a

New Trial all without any opportunity of oral argument (Page 392 thru

Page 409, Page 435, Page 439, Page 556 - Record on Appeal).

39. On August 24, 1988, in camera, the District Court stated,

among other things, that it did not believe in marital agreements, that

Dorothy should take a polygraph, and if she did not, the Court would

divide her property (Page 435 thru Page 438, Page 541 thru Page 547 -

Record on Appeal).

40. On November 17, 1988, the District Court ruled the 1973

agreement invalid, ordered no alimony and divided Dorothy's property

with Bruno (Page 440 thru Page 453 - Record on Appeal).

10

SUMMARY OF ARGUMENT

Even by marshalling all of the evidence in support of the trial

court's Findings of Fact, and viewing the evidence in a light most

favorable to the trial court, the evidence does not support Finding of

Fact #6, #16 and #21.

The 1973 property settlement agreement was a valid binding

contract between the parties, and the trial court's ruling was an error in

law.

The denial of alimony to Dorothy D'Aston was an error in law.

The conduct of the trial judge constituted judicial bias.

ARGUMENT

I. THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO

SUPPORT FINDING OF FACT #6, BUT RATHER, THE 1973 PROPERTY

SETTLEMENT AGREEMENT IS VALID AND BINDING BETWEEN THE

PARTIES.

The subject agreement was prepared by Bruno's attorney,

presented to Dorothy and signed by both parties without duress, fraud

or undue influence being claimed or asserted (See Addendum,

Exhibit 1). Said agreement was notarized and recorded two (2) years

later in Los Angeles, California. All properties were transferred

according to the agreement, and no claim was made by either party that

the agreement was invalid until Bruno filed for divorce in 1986.

Even after filing for divorce, Bruno's California attorney asserted

the validity of the agreement on Bruno's behalf, obtained an assignment

11

from Bruno and filed a lawsuit against Dorothy seeking to recover assets

on the basis of the agreement,

Bruno's only claim to nullify the agreement was that he. knew of

pending litigation. He could not identify the threatened litigation but

admitted that it was resolved before the agreement was notarized and

recorded in 1975. Dorothy denied any discussion with Bruno regarding

pending litigation.

Dorothy acted consistently with the 1973 agreement and

maintained careful records of her property.

Bruno deliberately avoided record keeping, did not file tax returns

but admitted that he bought, sold and traded extensively after 1974

(Page 1803 Line 5-12, Page 904 Line 5-16, Page 1110 Line 24-111,

Page 1012 Line 3-12, Page 1047 Line 20 thru Page 1048 Line 17,

Page 1094 Line 10 thru Page 1097 Line 22, page 1165 Line 8 thru

Page 1170 Line 17).

Bruno testified as follows:

Q. Can you tell the court who prepared this agreement?

A. Sidney Troxell.

Q And he was also your attorney?

A. Yes. (Page 843 Line 2-4, 7-8 - Record on Appeal).

Q. Paragraph 7 says that both parties have read and understood this agreement, have been advised by counsel and stated that it was not made under duress or fraud or undue influence?

12

A. Oh yes.

Q. And is that a true statement?

A. Yes (Page 841 Line 16-22 - Record on Appeal).

Bruno further testified that he discussed the agreement with his

attorney, that he was not sure if he discussed pending lawsuits with

Dorothy, that he went along with the terminology of the agreement, that

he had substantial assets at the time, that she had never claimed

ownership of his separate property, that he had conveyed the real

property to her, and that any modification must be in writing (See

Addendum, Exhibit 4 (Page 834 - 844 - Record on Appeal)).

Dorothy testified as follows:

Q. Would you tell the court what Mr. D'Aston said to you when he handed you the agreement?

A. He wanted me to sign this so that he would end up with our assets divided. I would have certain assets, and he would have certain assets.

Q. Did he tell you why he wanted you to do that?

A. That is the way he wanted it.

Q. Did he say anything about pending lawsuits?

A. No.

i ^

Q. Or the threat of lawsuits?

A. No, not to my knowledge.

Q. When was the first time you heard that?

A. In the court since the divorce.

Q. Since the divorce was filed?

A. Yes (Page 1413 Line 13 thru Page 1414 Line 2 - Record on Appeal).

Dorothy further testified that both parties had read the

agreement, signed it, the property was transferred as required in

agreement and the agreement was notarized and recorded (See

Addendum, Exhibit 5 (Page 1413 thru Page 1417 and Exhibit 37)).

Finally, Bruno testified:

Q. Is it fair to say these lawsuits had been resolved before 1975?

A. Oh yes (Page 964 Line 1-3 - Record on Appeal).

The Utah Court of Appeals has stated:

"Antenuptial agreements are to be construed and treated as are contracts in general." In re marriage of Young. 682 P.2d 1233. 1236 (Colo. Ct. App. 1984). "They are in no way different from any other ordinary contract." O'Dell v. O'DelL 238 Iowa. 434. 26 N. W. P.2d 40L 412 (1947),

14

The Court further stated:

"In interpreting contracts, the principal concern is to determine what the parties intended by what they said. We do not add, ignore or discard words in this process; but attempt to render certain the meaning of the provision in dispute, by an objective and reasonable construction of the whole contract." Mark Steel Corporation v. EIMCO Corporation. 548 P.2d 892, 894 (Utah 1976). "The ordinary and usual meaning of the words used is given effect." Pugh v. Stockdale and Company. 570 P.2d 1027. 1029 (Utah 19771 "and effect is to be given the entire agreement without ignoring any part thereof" Minshewv Chevron Oil Company 575 P.2d 192. 194 (Utah 1978). Berman v. Berman 749 P.2d 1271 (Utah App. 1988).

The Utah Supreme Court has stated:

". c . in general, prenuptial agreements concerning the disposition of property owned by the parties at the time of their marriage are valid so long as there is no fraud, coercion, or material non-disclosure. However, provisions eliminating the payment of child support or alimony in prenuptial agreements are not binding on the Court. This judicial discretion allows the parties freedom of contract while preserving the right of the state to insure adequate support for its citizens." Huck v. Huck 734 P.2d 417 (Utah 1986). and Unander v. Unander. 264 or. 102. 506 P.2d 719. 722 (1973).

The Supreme Court of Arizona has adopted the same view:

"We feel that in view of the relatively equal status of women to men under the law, that married couples should not be deprived of the right by contract to divide their property as they please, both presently and prospectively, assuming the contract is voluntary, free from fraud and is fair and equitable."

i *

California, a community property state, similar in its views in many respects, has adopted this view. In the leading case of Perkins v. Sunset Tel, and Tel. Company. 155 Cal. 712. 103 P. 190 (1909) the Court after finding as a fact that an agreement existed for more than ten (10) years between husband and wife, whereby it was mutually consented that all of the community property on hand or to be acquired by either should be the separate property of the wife, held: "Under our law there can be no doubt that a husband and wife may enter into a contract with respect to their property whereby one may release to the other all interest, both present and in expectancy" 103 P. at 193.

We adopt the proposition that marital partners may in Arizona validly divide their property presently and prospectively by a postnuptial agreement, even without its being incident to a contemplated separation or divorce. We also feel that this rule should include the built-in safeguards that the agreement must be free from any taint of fraud, coercion or undue influence; that the wife acted with full knowledge of the property involved, and her rights therein, and that the settlement was fair and equitable. Such is the rule which prevails in New Mexico as set forth in Sande 83 Idaho 233. 360 P. 2d 998 (1961) followed as recently as June 3, 1968 in the New Mexico case of Trujillo v. Padilla. 79 N. M. 245. 442 P. 2d 203 (1968). In re Estate of Harver 449 P. 2d7.

The general rule is that the construction, validity and the effect of

a postnuptial contract is governed by the law of the place where the

contract was made. (18 ALR 2d 767. Section 5)

Under California law, married persons are allowed to enter into

contracts concerning the manner in which the parties will hold title to

property regardless of when or how such property was acquired.

16

Statutory law in the State of California provides for postnuptial

contracts between a husband and wife (Cal. Civil Code Section 5103)

West (1983 as amended)). This section states in part:

"Subject to subdivision (B) either husband or wife may enter into any transaction with the other, or with any person respecting property, which either might if unmarried."

The validity of postnuptial agreements is well settled in the State

of California and has been sustained by California state law since 1909.

In the recent case of the marriage of Dawley 551 P. 2d 323

(1976), the California court stated:

"Apart from Higgason no case has distinguished, in terms of the policy favoring marriage, between antenuptial agreements and those executed during a viable marriage, and none have asserted that only agreements made in contemplation of a life-long marriage are valid."

The law of the State of California is explained further in the case

of Espy v. Espy 236 Cal. Rptr. 755 (Cal. App. 1 Dist. 1987), which states:

"It is well settled that the division of the community property is trusted primarily to the parties and that the courts assume this task only if the spouses fail to make the necessary arrangement between themselves . . . private settlements dividing marital property are favored as a matter of public policy." In re marriage of Moore (1980) 113 Cal. App. 3d 22, 27, 169 Cal. Rptr. 619 , , , "In the absence of fraud or mistake, the intention of the parties expressed in the parties1 settlement agreement is controlling." Esserman v. Esserman (1982) 136 Cal. App. 3d 572, 578. 186 Cal. Rptr. 329 . . . Property settlement agreements occupy a favored position in the law of this state and are sanctioned by the Civil Code. Such agreements are usually made with the advice of counsel

1 7

after careful negotiations, and the courts, in accord with legislative sanction, prefer agreement rather than litigation. A property settlement agreement, therefore, that is not tainted by fraud or compulsion or is not in violation of the confidential relationship of the parties is valid and binding on the court . . . this follows from the sanctity and constitutional protection of contracts. The United States Constitution, Article L Section 10, provides that no state shall pass any law impairing the obligation of contracts. The California Constitution likewise provides that no law impairing the obligation of contracts may be passed (Art. L Section 9 . The cases construing the contract clauses explain that the prohibition against impairment of contractual obligations is almost absolute and that unless there are overriding considerations of public policy, the courts cannot lawfully disregard the provisions of valid contracts or deny to either party his or her rights thereunder. Bradley v. Superior Court (1957^ 48 Cal. 2d 509. 519. 310 P.2d 634.

The California court further stated:

"It is of course elementary that where, as here, the language of the contract is clear and explicit, the trial court must give effect to the mutual intention of the parties expressed in their agreement and may not undertake to re-write the contract under the guise of judicial interpretation."

The 1973 property settlement agreement is valid under California

law, Utah law and the laws of our sister states of Arizona and New

Mexico. It should be upheld in this case.

II . THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO

SUPPORT FINDING OF FACT #16 AND #21, BUT RATHER, ALIMONY

SHOULD BE AWARDED APPELLANT.

18

The record is completely void of evidence showing the court's

consideration of the factors articulated by the Utah Supreme Court and

Utah Court of Appeals relating to alimony awards.

The court has stated:

"An alimony award should, to the extent possible, equalize the parties' respective post-divorce living standards and maintain them at a level as close as possible to that standard of living enjoyed during the marriage." Gardner v. Gardner 748 P.2d 1076. 1081 (Utah 1988). The Utah Supreme Court has articulated three factors that must be considered by the trial court in determining a reasonable alimony award: (1) The financial conditions and needs of the requesting spouse; (2) the ability of the requesting spouse to produce a sufficient income for himself or herself; and (3) the ability of the other spouse to provide support. . . Failure to consider these factors constitutes an abuse of the trial court discretion. Paffel v. Paffel 732 P.2d 96. 100 (Utah 19861

In the case of Rasband v. Rasband 752 P.2d 1331 (Utah App. 1988).

the court stated:

"The trial court made only one vague, conclusive finding regarding Mrs. Rasband1 s present and future ability to produce a sufficient income to meet her needs . . . the Findings of Fact must show that the court's judgment or decree 'follows logically from and is supported by the evidence1." Smith v. Smith 726 P.2d 423. 426 (Utah 1986V The findings "should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached".

The trial court volunteered its own knowledge that Dorothy could

probably draw Social Security in 1993.

19

The record shows that the parties have been married over thirty-

five (35) years, that Dorothy has no monthly income or educational

degree and that she has not worked since the 1950's.

By contrast, the record shows that Bruno has earned significant,

though unreported, income through his skills of buying, selling and

trading coins, silver, gold and exotic cars.

Bruno testified as follows:

Q. Was all the property you acquired during the marriage acquired as a result of your efforts?

A. That is correct.

Q. Did Dorothy ever have any gainful employment outside of the house?

A. She was gainful, she would help me when I first started in the business.

Q. Did Dorothy own any separate property when you married her?

A. None (Page 688 Line 2-11 - Record on Appeal).

Dorothy testified as follows:

Q What is your educational background?

A, I attended two years of art school before I was married. I did not complete my education, did not get a degree (Page 1412 Line 16-18 - Record on Appeal).

20

Q. Given your expenses and your present situation, do you think that the court should required Mr. D'Aston to pay alimony to you?

A. I do. I know he has assets.

Q. And what amount of alimony do you think he should pay you?

A. About $3,500.00 a month.

Q. And do you think alimony should be permanent?

A. Yes (Page 1490 Line 7-15 - Record on Appeal).

Bruno further testified:

Q. And did there come a time when you retired from being an engineer?

A. Well actually I didn't retire. I still have not retired.

Q And can you explain what you income producing activities have been during the marriage?

A. Yes, I was a multi-millionaire and I am a self-made multi-millionaire.

Q. What was the source of your wealth?

A. Manufacturing and my business.

21

Q. And would you explain to the court the businesses that you have been involved in?

A. Primarily Aston Laboratories in California for eighteen years.

Q. And after you completed your work at Aston Laboratories, did you then go into the coin business?

A. More or less from collecting some coins not business per se.

Q. And during the course of your career have your earned money from the coin business?

A. I have been a collector for close to fifty years, and I earned a great deal of money because of the accelerated wealth and worth of the material of course (Page 599 Line 11 thru Page 600 Line 8 - Record on Appeal).

Dorothy submitted a financial declaration setting forth her assets

and expenses, but Bruno did not.

The record shows no consideration of the standard of living as set

forth in the foregoing Utah cases.

In the recent case of Naranjo v. Naranjo 751 P.2d 1144 (Utah App.

1988) the court stated:

"Failure to analyze the parties' circumstances in the light of these three factors constitutes an abuse of discretion . . . " The Utah Supreme Court has noted that, "it is unrealistic to assume that a woman in her mid-fifties with no substantial work experience or training will be able to enter the job market and support herself in anything even resembling the style in which the couple

2 2

had been living." Jones v. Jones 700 P.2d 1075 (TJtah 1985) " . . . where marriage is of long duration and the earning capacity of one spouse greatly exceeds that of the other . . . it is appropriate to order alimony . . . at a level which will insure that the supported spouse . . . may maintain a standard of living not unduly disproportioned to that which [she] would have enjoyed had the marriage continued." Savage v. Savage 658 P.2d 1205 (Utah 1983).

Finding of Fact #16 and #21 are not supported by evidence in the

record and should be reversed as an error in law.

III . THE CONDUCT OF THE TRIAL JUDGE CONSTITUTES JUDICIAL

BIAS.

The trial court became angry when the polygraph issue was

presented. Despite briefing on the applicable state law, the court

allowed reference to polygraph results and finally presented an unfair

dilemma to the appellant, either submit to a polygraph or your separate

property will be divided.

In a similar case, the Utah Supreme Court stated:

"We offer the general philosophy expressed in Haslam v. Morrison, 113 Utah 14, 190 P.2d 520. 523 (1948) . . . Justice Wolfe, writing for the court, stated: The purity and integrity of the judicial process ought to be protected against any taint of suspicion to the end that the public and litigants may have the highest confidence in the integrity and fairness of the courts.1 Justice Wade in a concurring opinion stressed this point when he wrote: 'One of the most important things in government is that all persons subject to its jurisdiction shall always be able to maintain a fair and impartial trial in all matters of litigation in its courts. It is nearly as

23

important that the people have absolute confidence in the integrity of the courts. I can think of nothing that would as surely bring the courts into disrepute as for a judge to insist on trying a case when one of the litigants believes that such judge is biased and prejudiced against him'." Marchant v. Marchant 743 P.2d 199 (Utah App. 1987\

In the instant case, the court declared, in camera, that it did not

believe in marital agreements and that appellant should either submit

to a polygraph or have her property divided. There is no record to

support these statements because the court reporter was not present.

The only record is a Minute Entry of August 24, 1988, which states in

part:

"Counsel met with the court in chambers regarding Defendant's Motion to Reopen this case which was submitted by the Defendants. The court will consent to said motion provided that the parties and witnesses who have submitted affidavits in this matter will consent to taking a polygraph test . . . Mr. Harrison is to contact the Defendants immediately to see whether or not the Defendants will take the lie detector test, if not, the court will deny Defendants1 Motion to Reopen." (Page 435 - Record on Appeal)

On September 12, 1988, Appellant's attorney filed a Motion to

Review Trial Transcript and stated in part as follows:

"This motion is based upon the files and records herein which that Plaintiff and Defendant testified extensively and contradicted each other's version of the facts. Furthermore, Defendant produced extensive written documentation to support her position and has offered, in Affidavit form, to produce additional witnesses which will specifically controvert the statements and representations made by Plaintiff.

24

Plaintiff respectfully urges that the above-entitled Court has previously ruled that absent a stipulation of the parties, polygraph examination results are inadmissible in a civil action. It would inequitable and an error in law for the court to require the Defendant and the Defendant's witnesses to undergo polygraph examinations as a condition precedent to receiving evidence which specifically rebuts statements made by Plaintiff.

Furthermore, it would be inequitable and an error in law for the Court to divide the assets in the possession of Defendant because of her unwillingness to undergo a polygraph examination." (Page 436-438 - Record on Appeal)

It is respectfully urged that the foregoing conduct constitutes

judicial bias and an error in law and should not be condoned by this

Court.

CONCLUSION

Appellant respectfully urges the court to reverse the decree

granted below and find that the 1973 property settlement agreement is

valid and binding between the parties, that alimony should be awarded

appellant and that the Findings of Fact, Conclusions of Law and Decree

of Divorce should be modified consistent with the evidence and the law.

DATED this 24th day of April, 1989.

Respectfully submitted,

Brian C. Harrison Attorney for Defendant-Appellant

25

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I mailed four copies of the foregoing

Brief to S. Rex Lewis, 120 East 300 North, P. O. Box 778, Provo, UT

84603, postage prepaid, this zl day April, 1989.

)-J*~— C. Brian C. Harrison

ADDENDUM

27

EXHIBIT 1

1973 Property Settlement Agreement

TtLf

A G R E E M E N T

RECORDED IN OFFICIAL RECORDS OF LOS ANGELES COUNTY, CA

MAR 7 1975 AT 8 A.M.

Recorder's Office

This agreement is made by and between BRUNO DfASTON,

husband, and DOROTHY D'ASTON, wife, at Hacienda Heights, Cali

fornia, on the first day of March, 1973, with respect to the

following facts:

1. The parties own property which is held in joint

tenancy, community property or in their separate names; and

2. They wish to make this agreement to state their

actual intention with respect to said property and the status

thereof and with respect to property to be acquired hereafter*

Now, therefore, in consideration of mutual covenants

herein it is agreed as follows:

1. The husband does transfer, bargain, convey and

quitclaim to the wife all of his right, title and interest, if

any there be, in and to the following:

(a) The real property at 14211 Skyline Drive,

Hacienda Heights, California and in and to all build

ings, appurtenances and fixtures thereon.

(b) The real property at 230 South Ninth Avenue,

City of Industry, California, including all buildings,

appurtenances and fixtures thereon, and any and all oil

and mineral rights thereto*

(c) Any and all cash in bank accounts located in

the State of California*

2. The wife transfers, bargains, conveys and quit

claims to the husband all of her right, title and interest in and

to real property located outside of the United States of America,

and in and to all personal property in the possession of the

husband, or subject to his control in the United States, Europe

or elsewhere in the world, and in and to all patents or patent

rights under the laws of the United States, United Kingdom or

I if 2 U '4fa&~*&'l. , I M TAX STATEMENTS TO ^ ^ ^ ^ | .

DOCUMEltTAnt TftAN rPR TAX f. coMnrr'} CN FULL VMUE C pr^F'TY coNvrYED,

J 2 . *)>u: f<^^^y T j: t

Vr

8*065^894

any commonwealth thereof, Switzerland, Japan or other countries*

The provisions of this paragraph apply to all property described

herein, whether presently owned or in existence or to be acquired

or created in the future*

3* Hereafter, and until this agreement is modified in

writing attached hereto, all property, real, personal and mixed,

acquired by either party in his or her sole name, from whatever

source derived and wherever situated, shall be the sole and sepa

rate property of such person, notwithstanding any law, statute or

court decision giving presumptive effect to the status of marriage;

and such property shall be free of all claims, demand or liens of

the other, direct or indirect, and however derived*

4* Nothing herein applies to the earnings, from what

ever source derived, of either party, which shall be community

property under the laws of the state of California* Nor shall

anything herein be construed to derogate from the rights and

privileges of either party or both of them, under the tax laws

of any state or nation of the world*

5. Each party agrees to execute documents necessary

to implement this agreement*

6. This agreement may be, but need not be, recorded

in any office for recording documents in California or elsewhere.

7* Both parties have read and understood this agree

ment, have been advised by counsel, and do state that it has not

been made under duress, fraud or undue influence*

Executed in triplicate on the date

Dorotljy D'Aston

-2-

TO 447 CA (4.73) (Individual)

STATE OF CALIFORNIA

COUNTY n r Los A n g e l e s

TITLE INSURANCE ANDTRUST

ss. A TICOft COMPANY

On February 2 8 t 1975

BKD6578PC895 before me, the undersigned, a Notary Public in and for said

State, personally appeared . Bruno D1Aston and Dorothy D1Aston

to be the person S whose name S a r e subscribed to the within instrument and acknowledged that t h e y executed the same. ^—^

WITNESS my hamj/>nd official seal.^

_ known to me

Name (Typed or Printed)

OFFICIAL SEAL

CORINNE H. YOUNG NOTARY PUBUC • CALIFORNIA

PRINCIPAL OFFICE IN _^_ LOS ANGELES COUNTY

My Commission Expires December 14, 1977 ujijLT.r r j -i i m\\f* I i • - - - ' * • " '

<TMt a m tar •WMti Mtartal m l )

EXHIBIT 2

Findings of Fact and Conclusions of Law

-/«5* - — - -S. REX LEWIS (1953), for:

HOWARD, LEWIS & PETERSEN ATTORNEYS AND COUNSELORS AT LAW

120 East 300 North Street P.O. Box 778

Provo, Utah 84603 Telephone: (801) 373-6345

Attorneys for Plaintiff

J

Our File No. 17,603

IN THE FOURTH JUDICIAL DISTRICT COURT OF UTAH COUNTY

STATE OF UTAH

BRUNO D'ASTON,

Plaintiff,

vs.

DOROTHY D'ASTON,

Defendant.

LISA ASTON and ERIC ASTON,

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Civil No. CV 86 1124

Judge Boyd L. Park

Co-defendants.

This matter came on duly and regularly for trial before the above-entitled Court

sitting without a jury, on April 18, 1988, through April 21, 1988. The plaintiff

appeared in person and was represented by his counsel, S. Rex Lewis of Howard, Lewis

& Petersen. The defendant and the co-defendants appeared in person and were

represented by their counsel, Brian C. Harrison and Don Mullen. The parties were

sworn and testified, other witnesses for the parties were sworn and testified, and the

Court received in evidence Exhibit Nos. 1 through 31, 32b-k, 35 to 41, 43 to 45, 47 to

51, 53, 55 to 83, 85 to 88, 91, 92, 94 to 98, 101 to 108a, 109a, 109b, 110 to 128, 129,

4!

129a, 130, 130a, 131 to 146, 147, 147a, 148 to 149a, 150 to 159, 161 to 163, 165 to 177.

The Court having heard the evidence, examined the exhibits, having subsequently met

with counsel, and having ruled on subsequent motions and being fully advised in the

premises, now makes the following:

FINDINGS OF FACT

1. The plaintiff and defendant, Dorothy D'Aston, were both residents of

Utah County, State of Utah, for more than three months prior to the filing of the

action for divorce herein.

2. The plaintiff and defendant, Dorothy D'Aston, were married September

22, 1953 in New York City, New York, and have since that time been husband and

wife. There have been two children born as issue of that marriage, to-wit: Lisa

Aston and Eric Aston, both of whom are adults.

3. On April 30, 1986, the defendant, Dorothy D'Aston, directed the plaintiff

to leave the home of the parties from which home the plaintiff has been excluded

since that date, all of which treatment was cruel to the plaintiff causing him great

mental distress. The plaintiff is entitled to a decree of divorce from defendant,

Dorothy D'Aston, on the grounds of mental cruelty, the divorce to become final on the

signing and entry of the decree.

4. The plaintiff has treated the defendant, Dorothy D'Aston, cruelly during

the course of the marriage by continued physical and mental abuse, all of which caused

said defendant great mental distress. The defendant is entitled to a decree of divorce

from the plaintiff on the grounds of mental cruelty, the divorce to become final on the

signing and entry of the decree.

2

A\

5. The plaintiff and defendant, Dorothy D'Aston, have acquired substantial

property during the course of their marriage from the efforts of both parties. The

plaintiff having worked for others and also established his own businesses, and the

defendant working in the businesses of the plaintiff's from time to time. The plaintiff

brought into the marriage coin and stamp collections and other miscellaneous items

which he has listed in Exhibit No. 8 as having a current fair market value of

$567,700.00. The defendant contends the plaintiff brought into the marriage items

having an approximate value of $5,000.00. Because this is a thirty-five year marriage,

and because there is substantial conflicting testimony as to the whereabouts, value and

current existence of this property, the Court will not consider this property separate

and apart from the marital assets.

6. In March of 1973, the plaintiff and defendant, Dorothy D'Aston, entered

into a Property Settlement Agreement in the State of California. There is substantial

conflicting testimony and evidence regarding the purpose of said agreement. Subse

quent to the date of the agreement, the parties continued their married lives together,

and bought and sold property as though the agreement did not really exist, except that

certain real properties were changed to the name of defendant, Dorothy D'Aston. The

Court finds the said agreement was entered into for the purpose of avoiding possible

creditors claims due to threatened litigation, and was not intended to be a binding

agreement for estate distribution between the married parties.

7. The defendant, Dorothy D'Aston, transferred title to the residence and

one adjoining lot of the parties to defendant Lisa Aston (daughter of the married

parties) (exhibit no. 148). The plaintiff had not concurred in the gift of said premises

3

to Lisa Aston, and Lisa Aston should be ordered to transfer the property back to

Dorothy D'Aston to be dealt with by the Court as marital property.

8. The plaintiff alleges that he owned a collection of coins, silver and gold

bullion and other valuable items located in his brief cases in his automobile, which

were secured to the automobile by chains and locks, on the morning of April 30, 1986

(exhibit no. 22). The plaintiff also alleges he owned and stored in his motor home

parked at the residence of the married parties in Provo, Utah an inventory of coins,

stamps, gold and silver bullion, and other valuable items (exhibit no. 23). Plaintiff

alleges that he further had a consignment from other coin dealers certain coin

collections and gold and silver bullion valued at $324,238.00 (Exhibit no. 24), which was

located in his motor home and in his automobile.

Plaintiff alleges that defendants, Dorothy D'Aston and his son Eric Aston,

acting conccrtedly, broke into the motor home on or before April 30, 1986 and took

possession of all the coins, stamps, gold and silver bullion, and other valuable items

(exhibit nos. 23, 24). Plaintiff alleges that Eric Aston, acting in concert with Dorothy

D'Aston, cut the chains and locks on the brief cases in his automobile on April 30,

1986 and took the coin collection and other valuable items from the brief cases

(exhibit nos. 22, 24). Plaintiff further alleges that Dorothy D'Aston and Eric Aston

still have in their possession the contents allegedly taken from the motor home break-

in and the contents from the automobile and brief case break-in. Plaintiff reported

the alleged theft to the Provo City Police but refused to follow through with the

complaint testifying he could not do this because it was his family.

4

9. Defendants, Dorothy D'Aston and Eric Aston, admit that plaintiff had a

collection of coins, stamps, silver and gold bullion, and other valuable items, the total

value of which they do not know. Defendants, Dorothy D'Aston and Eric Aston, deny

any knowledge of any consigned merchandise to the plaintiff. Defendants, Dorothy

D'Aston and Eric Aston, deny they broke into the motor home or the automobile at

any time, and deny they are in possession of the coins, stamps, silver and gold bullion

and other valuable items that plaintiff alleges were stolen. Said defendants further

allege that the plaintiff is still in possession of these items.

10. Witnesses for the plaintiff testify that they have seen some of the coins

alleged to have been stolen on or about April 30, 1986 in possession of defendants,

Dorothy D'Aston and Eric Aston, and offered for sale by them at coin shows subse

quent to April 30, 1986.

11. Witnesses for defendants testify they have seen some of the coins

alleged to have been stolen on or about April 30, 1986 in possession of the plaintiff

and offered by him for sale at coin shows subsequent to April 30, 1986.

12. The plaintiff and defendant, Dorothy D'Aston, allege they have acquired

during the course of their marriage the following assets, to-wit: (Dollar amounts

rounded off)

Pltf's Defs' Ex. # Property Value Value Possession

22 (1) Coins stolen from auto 4/30/86 Don't Unknown to (alleged by pltf) $1,009,978 know the Court

23 (2) Coins stolen from motor home on

5

A C

24

or before 4/30/86 (alleged by pltf) $448,398

(3) Coin consignment stolen from auto and motor home on or about 4/30/86 (alleged by pltf) $324,238

(4) List of property prior to marriage owned by pltf $565,700

Don't know

Unknown to the Court

Don't know

$5,000 at time of marriage

Unknown to the Court

Pltf contends this property was left in the home occupied by D. D'Aston. D. D'Aston contends the property is not in the home and does not know where the property is.

12 13

11

17

14

(5) Optical equipment

(6) Household furnishings, furniture and appliances

(7) Property purchased from payment of $300,000 on sale of Calif.

$27,918.87

$165,060

home (payment of 3rd trust deed note) and interest checks of $2,750 and $6,304 to-wit: 250 - $20.00 gold St. Gaudens @ $729 each Jewelry Cash Total

(8) Jewelry, stamps, books

$182,250 2,606

124.198 $309,054

$214,200

Don't know

$5,000

$182,250 2,606

124.198 $309,054

Does not know

Same as above

Dorothy D'Aston

Pltf contends def D. D'Aston has this property - Def D. D'Aston contends pltf has this property, except for jewelry given to her. The Court does not know where this property is located.

Pltf contends this property is

6

A

silver, paintings, ($10,000 of paintings included in exhibit 11)

(9) 2nd trust deed from sale of Calif home in the amount of $687,788.42 was discounted by def and she received $633,000; from that amount she has the following property: Cash - safe deposit

box Cash - put aside for

judgment taken against defendant

Savings account Checking account Diamonds Silver Bullion

(10) Vehicles Motor home VW GTI 1985 Mercury

(11) Patents

(12) Provo home 1171 N. Oakmont lots 40 & 41 -Plat "C Evening Glow Subdivision Purchased 3/80 -Cost Remodeling (1980

cost) Remodeling (1982

cost)

$20,000 6,000

No value

$184,722

37,596

40.284 $262,602

Does not believe they exist except for some paintings.

$300,000

75,000 34,000 26,000 86,000 7,600

$ 8,500

No value

in the home occupied by def. Def contends not in home except for some paintings.

D. D'Aston

D. D'Aston D. D'Aston D. D'Aston D. D'Aston D. D'Aston

Plaintiff Plaintiff D. D'Aston

Plaintiff

D. D'Aston

D. D'Aston

D. D'Aston

7

98 Did not value

10 (13) Vacant lot #17 - Sec A. Oak Cliff Planned Dwelling Group -Cost $ 18,000 D. D'Aston

13. The plaintiff alleges that there were certain automobiles at the residence

of the parties when he left the residence on or about April 30, 1986 (see exhibit no.

19). Defendants contend the only automobile at the residence of the parties consisted

of the motor home, Volkswagen and Mercury. That the Cadillac belonged to defendant

Eric Aston. Plaintiff further contends that the vehicles as listed in defendants' Exhibit

No. 31 and Defendants' Exhibit No. 32(a-k) were sold and the money spent prior to the

divorce action. The Court finds the only vehicles which it can order distributed are

the motor home, Volkswagen and Mercury.

14. Plaintiff and defendant, Eric Aston, testified regarding a purported gun

collection and the sale of guns. The Court finds there was no gun collection of any

significance at the time of the divorce proceedings and the only gun that the Court

knows the whereabouts of is the gun held by the Provo Police Department, which

belongs to defendant Eric Aston. The Court makes no award between the married

parties or to the purported gun collection.

15. The parties had no outstanding debts as of the time of the filing of the

complaint herein, except the alleged obligation of the plaintiff as to consigned mer

chandise as hereinabove mentioned.

8

I16v The plaintiff's income at the present time is social security in the sum

of $438.00 per month. The defendant, Dorothy D'Aston, has no monthly earned or

retirement income.

17. The property of the parties should be awarded as follows:

a. To the defendant, Dorothy D'Aston:

(1) Residence of the parties: Lots 40 and 41, Evening Glow

Subdivision, together with the improvements thereon and all built-in appliances.

(2) One-half of the furniture, furnishings, appliances (not

built-in) and one-half of all art objects, silverware, bedding, etc., to be agreed upon by

the parties or in the event of no agreement, then two lists be made of equal value by

the plaintiff and the defendant, Dorothy D'Aston, having the right to chose which list

of property she wants.

(3) Jewelry listed in paragraph no. 12, item 7.

(4) Cash as follows:

Cash put aside for payment of judgment $ 75,000.00

Savings account 34,000.00

Checking account 26,000.00

Diamonds 86,000.00

Silver bullion 7,600.00

Cash from the $300,000 in savings box in the sum of 63.200.00

Total cash, diamonds and silver bullion, excluding $75,000.00 for payment of judgment $236,800.00

(5) 1985 Mercury automobile.

9

(6) One-half of all jewelry, stamps, books, silver and paint

ings (which are not a part of the household art objects) described in exhibit no. 14.

(7) 125 - $20.00 gold St. Gaudens and $62,099.00 of the cash

from exhibit no. 17, when this property is located.

(8) 30% of value of all coins alleged to have been stolen as

listed in ex. nos. 22 and 23.

b. To the plaintiff, Bruno D'Aston:

(1) Vacant lot - 17, Sec. A, Oak Cliff Planned Dwelling

Group.

(2) One-half of all furniture, furnishings and appliances (not

built-in) and one-half of all art objects, silverware, utensils, bedding, etc. to be

divided as provided in paragraph 17a(2).

(3) Cash in the sum of $236,800.00 from the $300,000.00 in

the safe deposit box.

(4) Motor home and Volkswagen automobile.

(5) Property acquired by the plaintiff prior to the marriage

(exhibit no. 8).

(6) Optical equipment (exhibit nos. 12 and 13).

(7) One-half of all jewelry, stamps and books, silver and

paintings (which are not part of the household art objects) (described in exhibit no.

14).

(8) All of the consigned coins described in exhibit no. 24.

Plaintiff should be obligated for the debt of the consignment.

10

(9) 125 - $20.00 gold St. Gaudens and $62,099.00 of the cash

from exhibit no. 17, when this property is located.

(10) All patents and patent rights.

(11) 70% of value of all coins alleged to have been stolen as

listed in ex. nos. 22 and 23.

18. The Court is not convinced that the value attributable to the alleged

stolen coins by the plaintiff is a realistic value, and that the value is excessive; that

other values assigned by the plaintiff to other property were cost values or replace

ment values and not current fair market values. Therefore, the Court has not at

tempted to make the division of the marital property an absolute division of one-half

each based on values assigned by the plaintiff.

19. The Court believes that the above distribution of property is fair and

equitable under the totality of the existing circumstances and testimony.

20. In the event the alleged stolen coins (exhibit nos. 22, 23 and 24) are

found to be in the possession of the defendants, Dorothy D'Aston or Eric Aston, it

should be considered as contempt of court and punished as such.

In the event the alleged stolen coins (exhibit nos. 22, 23 and 24) are found to

be in the possession of the plaintiff, it should be considered as contempt of court and

punished as such.

(ly. The Court makes no award of alimony for either party as there should

be sufficient assets on which to live. The defendant, Dorothy D'Aston, should be able

to draw social security at age 62.

22. Each party should pay their own attorney fees.

11

From the foregoing Findings of Fact, the Court now makes the following:

CONCLUSIONS OF LAW

1. The plaintiff is entitled to a Decree of Divorce from the defendant,

which Decree should become final upon the signing and entry of the Decree.

2. The defendant, Dorothy D'Aston, is entitled to a Decree of Divorce from

the plaintiff, which Decree should become final upon the signing and entry of the

Decree.

I3y The agreement entered into between the plaintiff, Bruno D'Aston, and

the defendant, Dorothy D'Aston, in March of 1973, should not be a binding agreement

for estate distribution between the parties.

4. The plaintiff, Bruno D'Aston, and the defendant, Dorothy D'Aston, should

each be awarded the property together with other conditions concerning the property

as more particularly set forth in the Findings of Fact.

The defendant, Dorothy D'Aston, should be entitled to no sum of money

as alimony.

6. The plaintiff, Bruno D'Aston, should be entitled to no sum of money as

alimony.

7. Each party should pay their own attorney's fees incurred herein and

each should pay their own costs.

Let a Decree be entered accordingly.

12

DATED this /-> dav of llOteZ^&^l

APPROVED AS TO FORM:

Sf REX LEWIS; ESQ. Attorney for Plaintiff

<3, <r

)YD £ PARlC DISTRICT COURT JUDGE

BRIAN C. HARRISON, ESQ. Attorney for Defendant, Dorothy D'Aston, and Co-defendants, Eric Aston and Lisa Aston

CERTIFICATE OF HAND DELIVERY

I hereby certify that a true and correct copy of the foregoing was hand

delivered to the following this , day of , 1988.

Brian C. Harrison, Esq. Attorney for Defendant 3325 North University Avenue Suite 200, Jamestown Square Provo, Utah 84604

13

EXHIBIT 3

Decree of Divorce

1SZS DEC 15 n » : 2 5

S. REX LEWIS (1953), for: HOWARD, LEWIS & PETERSEN ATTORNEYS AND COUNSELORS AT LAW

120 East 300 North Street P.O. Box 778

Provo, Utah 84603 Telephone: (801) 373-6345

Attorneys for Plaintiff

*J&— 'fr \J

Our File No. 17,603

IN THE FOURTH JUDICIAL DISTRICT COURT OF UTAH COUNTY

STATE OF UTAH

BRUNO D'ASTON,

Plaintiff,

vs.

DOROTHY D'ASTON,

Defendant.

LISA ASTON and ERIC ASTON,

DECREE OF DIVORCE

Civil No. CV 86 1124

Judge Boyd L. Park

Co-defendants.

This matter came on duly and regularly for trial before the above-entitled Court

sitting without a jury, on April 18, 1988, through April 21, 1988. The plaintiff

appeared in person and was represented by his counsel, S. Rex Lewis of Howard, Lewis

& Petersen. The defendant and the co-defendants appeared in person and were

represented by their counsel, Brian C. Harrison and Don Mullen. The parties were

sworn and testified, other witnesses for the parties were sworn and testified, and the

Court received in evidence Exhibit Nos. 1 through 31, 32b-k, 35 to 41, 43 to 45, 47 to

51, 53, 55 to 83, 85 to 88, 91, 92, 94 to 98, 101 to 108a, 109a, 109b, 110 to 128, 129,

129a, 130, 130a, 131 to 146, 147, 147a, 148 to 149a, 150 to 159, 161 to 163, 165 to 177.

The Court having heard the evidence, examined the exhibits, having subsequently met

with counsel, and having ruled on subsequent motions and having made its Findings of

Fact and Conclusions of Law herein,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

1. The plaintiff, Bruno D'Aston, is awarded a Decree of Divorce from the

defendant, Dorothy D'Aston, to become final on the signing and entry of the Decree.

2. The defendant, Dorothy D'Aston, is awarded a Decree of Divorce from

the plaintiff, Bruno D'Aston, to become final on the signing and entry of the Decree.

3. The agreement entered into between Bruno D'Aston and Dorothy D'Aston

in March of 1973 is null and void and is not a binding agreement for estate distribu

tion between the parties.

4. The defendant, Dorothy D'Aston, is awarded as her sole and separate

property the following:

a. The residence of the parties situated in Provo, Utah County,

State of Utah, and described as follows:

All of Lots 40 and 41, Plat "C" Evening Glow Subdivision, Provo, Utah County, Utah according to the official plat on file in the office of the Recorder, Utah County, Utah.

Together with the improvements thereon and all built-in appliances.

b. One-half of the furniture, furnishings, appliances (not built-in)

and one-half of all art objects, silverware, bedding, etc. to be agreed upon by the

parties or in the event of no agreement, then two lists will be made of equal value by

the plaintiff and the defendant, Dorothy D'Aston, will have the right to choose which

2

list of property she wants. (A copy of exhibit 11 is attached hereto and make a part

hereof by reference as though it were fully herein set forth).

c. Jewelry as listed on exhibit no. 17.

d. Cash as follows:

Cash put aside for payment of judgment $ 75,000.00

Savings account 34,000.00

Checking account 26,000.00

Diamonds 86,000.00

Silver bullion 7,600.00

Cash from the $300,000 in savings box in the sum of 63.200.00

Total cash, diamonds and silver bullion, excluding $75,000.00 for payment of judgment $236,800.00

e. 1985 Mercury automobile.

f. One-half of all jewelry, stamps, books, silver and paintings

(which are not a part of the household art objects described in exhibit no. 14. A copy

of exhibit 14 is attached hereto and made a part hereof by reference as though it were

fully herein set forth).

g. 125 - $20.00 gold St. Gaudens and $62,099.00 of the cash from

exhibit 17 when this property is located. A copy of exhibit 17 is attached hereto and

by reference made a part hereof as though it were fully herein set forth.

h. 30% of value of all coins alleged to have been stolen and listed

in exhibit nos. 22 and 23. Copies of exhibit nos. 22 and 23 are attached hereto and by

reference made a part hereof as though they were fully herein set forth.

3

5. The plaintiff, Bruno D'Aston, is awarded the following described

property:

a. Vacant lot situated in Provo, Utah County, State of Utah,

described as follows:

Lot 17, Sec. A, Oak Cliff Planned Dwelling Group Subdivision, Provo, Utah County, Utah, according to the official plat recorded in the office of the Utah County Recorder, Utah County, Utah.

b. One-half of all the furniture, furnishings and appliances (not

built-in) and one-half of all art objects, silverware, utensils, bedding, etc. to be

divided as provided in the above paragraph 4b.

c. Cash in the sum of $236,800.00 from the $300,000.00 in the safe

deposit box which the defendant Dorothy D'Aston is ordered to forthwith deliver to

the Clerk of the Court for delivery to the plaintiff or the plaintiff's attorney.

d. Motor home and Volkswagen automobile.

e. All of the property acquired by the plaintiff prior to the

marriage as described in exhibit no. 8. A copy of exhibit no. 8 is attached hereto and

made a part hereof by reference as though it were fully herein set forth.

f. All optical equipment as described on exhibit nos. 12 and 13.

Copies of exhibit nos. 12 and 13 are attached hereto and made a part hereof by

reference as though they were fully herein set forth.

g. One-half of all jewelry, stamps, books, silver and paintings

(which are not part of the household art objects), all of which are described in exhibit

no. 14.

4

h. All the consigned coins described in exhibit no. 24. Plaintiff is

obligated for the debt of the consignment. A copy of exhibit no. 24 is attached hereto

and made a part hereof by reference as though it were fully herein set forth.

i. 125 - $20.00 gold St. Gaudens and $62,099.00 of the cash from

exhibit no. 17, when this property is located.

j . All patents and patent rights.

k. 70% of value of all coins alleged to have been stolen as listed in

exhibit nos. 22 and 23.

6. In the event the alleged stolen coins (exhibit nos. 22, 23 and 24) are

found to be in the possession of the defendants, Dorothy D'Aston and/or Eric Aston, it

should be considered as a contempt of court and punished as such.

In the event the alleged stolen coins (exhibit nos. 22, 23 and 24) are found to

be in the possession of the plaintiff, it should be considered as a contempt of court

and punished as such.

7. The co-defendant Eric Aston is awarded the gun that is being held by

Utah County Constable, Anthony R. Fernlund.

8. The defendant, Dorothy D'Aston, is not awarded any alimony from the

plaintiff.

9. The plaintiff, Bruno D'Aston, is not awarded any alimony from the

defendant, Dorothy D'Aston.

10. Each party is ordered to pay their own attorney's fees and court costs.

5

DATED this X^^dav of )lwr0rr»Oeu. 1988.

sHEÊO

APPROVED j \ S f o V o R M :

/ /

•BOYETL. PARK" DISTRICT COURT JUDGE

'^S. REX LEWIS? ESQ. Attorney for Plaintiff

BRtAN C. HARRIS6N, ESQ. Attorney for Defendant, Dorothy D'Aston, and Co-defendants, Eric Aston and Lisa Aston

CERTIFICATE OF HAND DELIVERY

I hereby certify that a true and correct copy of the foregoing was hand

delivered to the following this day of , 1988.

Brian C. Harrison, Esq. Attorney for Defendant 3325 North University Avenue Suite 200, Jamestown Square Provo, Utah 84604

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T O

DATE SHIPPED

Aston Laboratories 230 9th Avenue

City of Industry, CA, 917^6

Date 5 - Z 5 - 7 Z s H I * P P E 0

T O

SHIPPED VIA TERMS F O B

5-25-72 UPS Net 3Q Rudy Runge

1 40223 Bellows Extension 50504 Shade for Bellows extension

Tax

UPS

191 50

12 an 1257

1.20 ,52 yn

09

V5T

idiform

S 730 I N V O I C E


AaSHICAS CASIERA EXCHANGE 615 Sou th S p r i n g S t r e e t L03 A n g e l e s , CA 90014 T a U 627-5678

nvoice B 32231 Customer's Order Dote 5 -30 -72

o I 0 T o

DATE SHIPPED

Aston Laboratories 230 So. 9th Ave. City of Industry, CA<

s H

P P E 0

T O

SHIPPED VIA TERMS FOB SALESMAN

-3Q-7? Net 30 Rudy Runqe

60mm Olstagon used #2679051 Ex 130 Leica M3 used #1155019 50mm Sumicron #1568527 Used Camera Case Leica M3 Used #8072^6 Used meter Used case

5% Tax

250) 1

2 91 135 i 20)

262 2k\ 12j

oo 07 50 50 00 00 00 00

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Exh ib i t 13 - Page 9 of 26

A r

AUCSrCAK CA3ERA EXCHANGE 615 South Spring Stree t Los Angeles, CA 90014 Te l . 627-5678

oic. B 32243 Customer's Order Dote 5 -30 -72 s

o I D 7 o

Aston Laboratories 230 9th Ave, C l t y o f Jndustry , CA.

DATE SHIPPED

5-30-72

1 1 1 20 20 2

1 1 1

20 20

2

SHIPPED VIA TERMS

Net 30

F O B

T O

SALESMAN

Rudy Runge

Tripod 14100 14x119 tfjlpod head 14x168 t r i p o d head K-I1 36 exp. EXHT6 exp / 39E f i l t e r s

2. 2 .

Tax

39 64

12 12 21 47 52 19

165 8

5173

.00

.20

.60

.80

.80

.20

.60

.28

.'B8'

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S 730 I N V O I C E

Exhibit 13 - Page 10 Of 26

AMERICAN CAMERA EXCHAHGE 615 South Spring Street Loa Angales* CA 90014 T s l . 627-5678

Invoice B 3 2 7 0 2 Customer's Order Date 6 - I 6-72 S

o L

0

T

O

Aston Laboratories Inc. 230 9th Ave. City of Industry, CA. 917**6

- v m f » ' DATE SHIPPED

6-1 6-72

SHIPPED VIA TERMS

Net 30

F O B

I O

SALESMAN

Rudv Runqe

Microscope adapter 250mm f . l Sonnar #589723 Knob ring FIlm cutter Film screen adapter Hasselblad lent f I l m adppter

Tax

295, 31 5

25 23

392, 19,

$411.

00 00 85 00 00 16 01 SO

6r

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A3ERICA.Y CA'AERA EXCHANGE 615 South Spring S t r e e t L03 Anga las t CA 90014 * • ! • 627-5673

Customer's Order voice B 3 3 1 1 6 s

? • Aston Laboratories Inc. o 230 9th Ave. T City of Industry, CA. 917^6

Dote 6-28-72 s H I P P E D

T O

DATE SHIPPED SHIPPED V I A TERMS FOB SALESMAN

6-28-72 Net 3Q Rudy Run,ge

teica M5 #1291385 M5 Case #1A5M Roll studio paper Mayflower skope Viewer

Tax

501 27 10 92 1

"55 7

60 60 00 00 160

m

R«difprm

7S730 I N V O I C E


sn

A3EHICAK CUEHA EXCHA80B ol5 South Spring Stree t L03 Angaies, CA 900Z4 Tel« -6^7-5673

lnvo.ce B 3 2 6 9 3 Customer's Order Date 6 -15 -72

L 'Aston Laboratories Inc. D 230 9th Ave* T City of Industry, CA. 917^0

s H I P P E 0 T O

DATE SHIPPED SHIPPED VIA TERMS F O B SALESMAN

6-H-72 _Lj?JS_ Net 30 Rudy Runge

1

1 3 2 2 I

1

3 2 2 1

Hasselblad 500 EL -M body # 16099 w/70mm magazine # 30 ^ 6 2 Magnifier hood Sets of film magazines Mask for SWC finder 59021 70mm negative files 35mm conversion kit for prints projector

Tax

UPS

69*» 72 2k \k 35

n/c

00 60 00

52

HOT kl

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7S 730 INVOICE


R(

http://lnvo.ce

ERICAN CAMERA EXCHANGE 615 South Spring S t r e e t Los A n g e l e s , CA 90014 T » l . 627 -5 t78

e B 32699 Customer's Order Date 6-16-72

L 'Aston Laboratories Inc. o 230 9th Ave. T City of Industry, CA. 917^6

lifprm

730

lATE SHIPPED

-1<

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> > 1

1

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1 1 6 J 6 6

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TERMS

Net 30

F O B

Ulnox tr ipod Flfah Dozenbbubes Mtnon B c n e r a used # 651117 MJnox color 36 exposures TX 135-2,6 exposures Hasselblad lOOf cairera # CT22836 mag, #CT31352 80mm Tessar # 1837962

Ser. 7 fI I t e r

T O

SALESMAN

Rudy Runge

azine 1

Tax

.10

26, 18, 5.

119. ]k. 6.

280. 5.

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00 00 9*» 95 58 60

00 4Pr T7 •Si io

INVOICE

Exhib i t 13 - Page 14 of 26

AMERICAN CAMERA EXCQAHGE 615 South Spr ing S t r e e t Los A n s e i e a , CA 90014 r i * l . 627-5678

nvoke B 32** 1 1 s o L 0


T

o

DATE SHIPPED

Aston Laboratories 230 Ninth Ave. City of Industry, CA.

s H I P P E D

T O

SHIPPED VIA F O B SALESMAN

6-5-72 UPS Net 30 Rudy Runge

Professional lens shade Exackta case (used) Hasselblad SWC complete with view finder

Camera #9997 Lens #^9583^5 magazine #1780^9

Tax Ups

61 9

832 "5CT

L20 LOO

loo 11 50

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7S 730 INVOICE


5C

AaEMCAN CAMERA EXCHANGE 615 South Spring Streat L03 Angelas, CA 90014 Tal . 627-5670

.ceB 33291 Customer's Order

O l 0 T O

Aston Laboratories Inc. 230 9th Ave. City of Industry, CA.

Date 7 - 5 - 7 2 s H I P P E 0

DATE SHIPPED

7-5-72

1 1

r o

SHIPPED VIA

UPS TERMS

Net 30 F O B SALESMAN

Rudy Runge

K31B SB Complete out f i t w/barn doors 215

Tax

Ups

.00 172, BJ

180, I j

$181.

00 60 5(3 00 60

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A: .ICAtf CAMERA EXCHANGE 615 South Spring S t r e e t Loa A n g e l e s , CA 90014 T a l # 627-5678

voice B kkOk& s


I 0 T O

Aston Laboratories inc . 230 So. 9th Ave. City of Industry, CA* 917^6

DATE SHIPPED

7-2-73

1 1 1 1 1 5 5 1 1

1 1 1 1 1 5 5 1 1

SHIPPED VIA

UPS

TERMS

Net 30

F O B

o SALESMAN

Rudy Runqe

Polaroid SX 70 SX 70 Case Close up attachment Acces. shoe Tripod mount Color f i lm Fteh bars Lens shade Shutter cord

6. 2 .

Less

Tax UPS

90 77

180. ]3. 7. 5. 6.

DO 35 55 95 95

3*4.50 13. 2 . 5v

272.. 5*4.

~"2T77 13. 2.!

B5 95 24 DT ko 55~ 06 50

S233.J21 •diform

7S 730 INVOICE


AasniCAM CAJ£HA EXCHANGE 615 South Spring S t ree t Los Angeles , CA 90014 Te l . 627-5678

nvoice B 3 3 8 9 1 s o L D

Customer's Order Date 7 -21 -72

T O

Aston Laboratories Inc* 230 9th Ave. C i t y of I n d u s t r y , CA.

s H I P P E 0

DATE SHIPPED

7-21-72

1 1

1 1

SHIPPED VIA

UPS

TERMS

Net 30

F O B

T O

SALESMAN

Rtidv Runne

Lelca Hk camera # 1267792 HRk Meter #28135

Tax

UPS

360. 55.

415. 20.

$435. 1.

$437.

00 20 2"0 Z£ 9B 50 %

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AMERICAN CA3ERA EXCHAaGE 615 South Spring Straet Los Angelas, CA 90014 Te l . 627*5678

•oice 13030 Customer's Order Date August k9 1975 s o I

D

T

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Dr. Brunna D. Aston 1*4211 Skyline Drive Hacienda Heights, Calif. 917^5 Aston Laboratory, Inc.

s H

P P E 0

I O

DATE SHIPPED

1 1 1

SHIPPED VIA TERMS

Net.30

50mm Elmar Lens #905301 F3. Lens Cap Case

F O B SALESMAN

Rudy

5

6% Sales Tax

69 *••

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95 ,60 ,50 .05

lh "79

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I N V O I C E


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AMERICAN CAUEKA EXCHAHG* 615 South Spring S t r sa t Los Ange les , CA 90014 TaL. 627-5678

InvoiceB 35383 Customer's Order Date 8 - 1 1 - 7 2 s o I D T O

Aston Laboratories 230 9th Ave. C i t y o f I n d u s t r y , CA.

DATE SHIPPED

8-11-72

1 1 1

1 1 1

SHIPPED VIA 'TERMS

Net 30

P OB

I o

SALESMAN

?udy Runge

Real cord for 500EL camera Haneblad 1000F combination case New York BSW pr int

Tax

# * . 53 hi.

»J»5. 7

$152.

50 50

!so i50" 28 78

Radiform



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AMERICAN CAMERA EXCHABG2 615 South Spring S tree t Los Angeles , CA 90014 TeU 627-5678

Invoica B 34646 s


° • Aston Laboratories Inc. o 230 9th Ave. T City of Industry, CA. o

OATE SHIPPED

8-16-72

2 1

2 1

SHIPPED VIA

14823 Cases AC Adapter

i o

TERMS

Net 30

FOB SALESMAN

Rudy Runge

Tax

86. 1 25.

i n . 5.

$116.

kO 00 "VO 11 $7

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Ejdiibit 13 - Page 21 of 26

AaZRICAN CAMERA EXCHAHGS 61!> South Spring S tree t Los Angeles , CA 90014 TeU 627-5678

Invoice B 3k6kS S


° • Aston Laboratories Inc. D 230 9th Ave. T City of Industry, CA*

s H I P P E 0 T O

DATE SHIPPED SHIPPED VIA

t TERMS F OB SALESMAN

8-15-72 et 30 Rudy Runge

T 1 1

1

I 1 1 2

U I c a 3G Camera #94825** Elmar 50mm f 2 .8 #1575322

Case Chains 2. 80

Tax

2£0j. l i

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12M

6G 0C 6C

3

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5;

FINE P H O T O G R ' 'C EQUIPMENT

ft m B 31096

M, aea3R;»:iD'J:

"LOOK FOR THE BIG " A " O N SPRING STREET"

615 SOUTH SPRING STREET

LOS ANGELES, CALIF. 90014

PHONE 627-5678 I i 1 i

NAME. /IfSv &**C £~ k *\ STREET.

CITY

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HOW SHIPPED

H I C.O.D I CHAR<$ I J O N ACCT Iw iLL C A L L I M I 1 au oi 1 CUST. ORDER §

Q U A N . D E S C R I P T I O N PRICE AMOUNT

A.

\ v i h Q r> rr f7^H ^ — ^ Vsr

Title to the above described Equipment shall not pass from American Camera Exchange to the Purchaser and American Camera Exchange retains a security interest therein until the entire indebtedness evidenced by this agreement is paid in full. NOTICE See r e v e r e side and accompanying stotement for important informal ion In consideration of the extension of credit for purchases made by me an<i in warranty (liar any goods described herein ore to be used primarily for personal, family and household purposes unless otherwise specified here, I agree to the terms above and on the reverse hereof.

CUSIOMER'S SIGNATURE

on


51

AMERICAN CAUSEA EXCHA20*. 615 South Spring Straat Los Angeles , CA 90014 T e l . 627-5678

Invoice B 3 5 7 9 7 s

Customer's Order Dot e 9-26-72

° .Aston Laboratories Inc. o 230 9th Ave. i City of industry, CA. 917^6

DATE SHIPPED

9-26-72

1 2 1 1

1 2 1 1

SHIPPED VIA TERMS

Net 30

F O B

T O

SALESMAN

Rudy Runqe

Studlomatlc 1 Stand #105-133 Camera Mt. Brkt. #105136 Med. C t r *g t . #105-138 Prec. T i l t t o p 11 #105357

Shipping charge from Germany

Tax 829.

k].

39. $910.

35 hi 3'2

27 D9

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bl'j > o i t h S p r i n g S i r s J t 1,09 A u ^ U s , CA 90014 T e l . 6a7-567tJ

Invoice g ^ 6 ^ 8 2 Customer's Order S O

i • Aston Laboratories Inc. 0 230 S. 9th Ave. 1 City of Industry, CA. 917^6

DATE SHIPPED SHIPPED VIA

Date 9-7-73 s H I P P E 0

T O

SALESMAN

9-7-73 Net 30 Rudy Runge

1 X 6

1 X 6

Used R o H e l f l e x 2.8 camera #1623515 Camera Case CX 120

Trade-in f I l m

tax

323

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INVOICE


AMERICAN CAMERA EXCHAMQ& 615 South Spring S t r e e t Los Angeles t CA 90014 T e l . 627-5678

Invoice B 3 5 2 6 0 s

Customer's Order Do»e9-7-72

o I D T o

Aston Laboratories Inc, 230 9 t h Ave. City of Indus try . CA.

s H I P P E D

T O

OATE SHIPPED

9-7-72

1 1

1 1

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TERMS

Net 30

F O B SALESMAN

Rudy Runge

Lelca 50n*n f i n d e r Leica 35«twi f i n d e r

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3 1 . *»5. 7b. 3 .

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May 7, 1986

Bruno Aston P.O. Box 1543 Provo* Utah 84603

Dear Bruno:

With the Long Beach Show coming up, I would like the return of some of my dollars you have on consignment - namely:

1876 1878 1878 1878 1879 1880 1881 1882 1883 1883 1892 1893 1896 1903

Trade 7 T-Fa

Pro«f ather Proof

8 T-Feather Metric Trade

Pattern Proof

Gem Proof Proof Proof Proof Proof Proof Proof Proof S-MSfe +

Proof

$ 7,500.00 7?500.00 4,200.00

12,500.00 5,500.00

12,000.00 5,100.00 5,600.00 3,250.00 4,500.00

20,000.00 20,000.00 12,000.00 25,000.00

Have several people interested, at other shows.

What doesn't move, I will give back to you to show

Thanks for the ones you moved for me in the past.

Sincerely,

Al Schafer 11043 Candof St. Cerritos, Cal. 90701

EXHIBIT 4

Bruno D'Aston Testimony

A Okay.

Q Can you first tell the court who prepared this

agreement?

A Sidney Troxell.

Q Is your attorney in California?

A He was Vice President of Aston Laboratories.

Q And he was also your attorney?

A Yes.

Q How long had he been your attorney?

A Oh over 30 years.

Q Did you read this agreement with him?

A We discussed it. I doubt it if I read the

agreement.

Q Mr. D1Aston I am telling you the truth and

stop Mickey Mousing and listen to what I am telling you.

Q Did you read this agreement?

A I doubt it if I read it at the time. I can't

say yes" or "no".

Q Earlier today you testified that you have discussed

with Mr. Troxell the pending lawsuits?

A Yes.

Q And Dorothy was not present during those

discussions?

A That is in the back of my mind yes.

Q Would you tell the court what pending lawsuits you

170

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4

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6

7

8

9

10

17

12

13

14

15

16

17

18

19

20

21

22

23

24

25

were concerned with?

A I had a patent infringement pending lawsuit

and a real estate something about a title company that

with the sale of the plant.

Q Anything else.

Q This is in the back of my mind see. She got

the records.

Q You had two pending lawsuits?

A Yes.

Q One was a patent action and one was a title

action?

A Something like that yes.

Q And I guess that you don't have any documents

that establish either one of those?

A She has files on them.

Q Your answer is "no" you do not have that?

A I do not have them.

Q But you acknowledge that she was not present

when you discussed these lawsuits with Mr. Troxell?

A It seems to me right now I came home and I

discussed the problem and then executed this without any 4-

Q You admit that she was not present at the time that

Mr. Troxell discussed that with you?

A It could be "yes" and it could no "no" I can't

give you a 100 per cent definite.

171

835

Q

| to her?

A

come to

which.

Q

A

Q

A

Q

A

Q

A

Q

A

I didn'

Q

A

Q

A

Q

Now but you do agree that you bought the agreement

I could have brought it to her or she could have

the office and reviewed it I do not remember

Did she read it?

I have no idea.

Were you there when she read it?

I have no idea.

Were you was she there when you signed it?

I have no idea.

Did you see her sign it?

No.

You did not see her sign it?

No it is her signature okay yes but

t see it.

Now would you like - -

If I did I don't remember.

Would you look at the first paragraph there?

Yes.

And would you tell the court the date of that

agreement?

A

Q

A

Well there is 1975 here.

Well in the first paragraph of the wrrtten agreemem

1973.

t ?

1 7 2

9

10

1 Q You say March 1, 1973?

2 A Yes.

3 Q And that was the date that this agreement was

4 prepared and signed was it not?

5 J A I suppose so yes.

Q Now in Paragraph 1 you indicated that you owned

7 certain property joint tenancy community property or

8 J in their separate names is that correct you see that?

A I see it but I don!t understand the terminology.

Q At the time you executed this agreement did you

11 I have certain property ?

12 A That she didnft know about, I didn't know what

13 J she had so make yourself clear.

Q Did you have certain separate property then?

15 I A No.

*6 Q Was all the property you had community property

17 I at that time?

A Yes.

Q Then in your next paragraph you say that the

parties wish to make an agreement to state their

actual intention with respect to the property was that

your intention?

A This Sidney Troxell terminology and I went along

24 I with it.

2 5 Q The next paragraph says that you the husband transfer

18

19

20

21

22

23

173

1 all of your title and interest to the Los Angeles House ,

2 the City of Industry property and cash in bank accounts

3 in California?

4 A Yes.

5 Q Do you remember that?

6 A Yes it says here. Young man I don't remember the

7 document and the next thing I remember the document was

8 a year ago.

9 Q And do you remember that you signed a Quit Claim

10 Deeds for the Los Angeles House and the City of

11 Industry property to Dorothy?

12 A I don't remember.

13 Q Do you deny that you did not?

14 A No I don't because I don't remember.

15 Q Now in Paragraph No. 2 says that your wife Dorothy

16 transferred to you all of her right, title and interest

17 outside of the United States what real estate did you own

18 at that time?

19 A None.

20 Q It also says that she transferred all personal

21 property to you that was in your possession?

22 A What was mine was hers was never yours or mine.

23 Q Did you have coins at the time?

24 A Oh yes.

25 Q And you earlier testified that they were worth a

million

1 A

Q

A

in the

Q

A

Q

A

Q

dollars?

Yes they probably were.

And you had those in your personal possession?

They were in our possession they were in the safe

house.

You also had patents?

Oh yes.

And we reviewed some of those patents today?

We have.

And you claim that you had 14 patents both domestic

and international?

A So for that I can claim records. I have

more but the files are not available to me.

Q

rights?

A

Q

outside

A

Q

After 1973 did she make any claim to your patent

No.

Has she made any claim to your any real property

of the United States?

She know there was none.

Has she made any claim to the coins in your

possesion at that time?

A

to her

Q

to your

Whatever she wanted or needed they were available

like they were to me.

Listen carefully Mr. Aston, has she made any claims

coins?

175

A

Q

A

Legal claim?

To you has she made any legal claim?

She made no claim whatever she did she got I don't

remember.

Q

1 A

Q

Let me ask the question again?

Yes.

Since 1973 has she made any claim to the coins

which you owned in 1973?

A

Q

A

No I don't remember.

Excuse me what is your answer?

I don't remember. Whatever she asked she got

she took without asking.

Q

A

Q

The next - -

I didn't keep them under lock and key.

Mr. D'Aston the next paragraph says that until

this agreement is modified in writing all property of

whatever kind will be the separate property of the

person

A

Q

A

Q

A

in whose name it is in?

I know what it says.

You want me - -

What do you want me to do memorize it.

Do you understand that?

Of course it is a legal terminology this was for

our benefit. This was not for any design.

Q After that time did the property that she acquired

176

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7

8

9

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11

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18

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22

23

24

25

or that

A

Q

A

Q

A

Q

A

Q

you acquired go into only one of your names?

Dorothy's name.

The real estate?

Yes.

And did you purchase coins in your name?

I also purchased them in her name.

Did you purchase them in your name?

Yes.

Paragraph 5 says that both parties agreed to

execute the documents necessary to implement this agreement

do you remember any documents that you signed to implement

this agreement?

A

A

A

Q

What do you mean?

Such as a Quit Claim Deeds?

I don't remember.

In Paragraph 7 says that both parties have read and

understood this agreement have been advised

by

or

counsel and stated it was not made under duress or fraud

undu

A

Q

A

Q

has a

that?

e influence?

Oh yes.

And is that a true statement?

Yes.

Now the next page of this document at the bottom

notarial seal from Los Angeles County do you see

Down at the bottom?

177

O A -i.

A Okay.

MR. LEWIS: Do you have the original of that?

BY MR. HARRISON:

Q I call your attention to the second page now didn!t|

there come a time some two years later on March 7, 1975 th^t

you wanted to have this document recorded?

A Not to my knowledge.

Q Do you see the Notarial Certificate on the

second page?

A I see it yes.

Q You see the statement which says you personally

appeared and Dorothy personally appeared before Loriane

Young a Notary Public?

A I am sure we did but I don't remember.

Q And did you ask that this document be recorded

in L.A. County?

A No I did not and I have no idea why it was and

what it was.

Q Do you have any memory of who had it recorded?

A No.

Q I hand you now Exhibit No. 38 let me see I will

offer Exhibit No. 37 Your Honor.

THE COURT: Any objections?

MR. LEWIS: No objections.

THE COURT: Exhibit No. 37 will be receiveo.

178

BY MR. HARRISON:

Q Can you tell the court what Exhibit No. 39 is?

A Grant Deed.

Q And that is dated March 12, 1973?

A That is correct.

Q This is a deed where you deeded property to Doroth

D1 Aston your wife as her sole and separate

property?

A Yes.

Q And that is dated 12 days after you executed

the 1973 agreement isn't it?

A Whatever it says yes.

Q And this was the City of Industry Property

where the factor was located?

A Yes turned that over to Dorothy because it was

going through the sale.

Q We would offer Exhibit No. 38, excuse me Mr. Lewis

it is Exhibit No. 38.


MR. LEWIS: No objection.

THE COURT: Exhibit No. 38 will be received.

BY MR. HARRISON:

Q Now I hand you Exhibit No. 39 and ask if you

can tell the court what that is?

A It is a Grant Deed to the Skyline Property.

179

Q

A

Q

A

Q

A

Q

as her

A

Q

A

Q

BY MR.

Q

This is the Los Angeles1 home isn't it?

Yes, the Hacienda Heights1 home. -

March 12, 1973?

Yes the same day.

Some 12 days after you signed the 1973 agreement?

Yes.

You deed your interest in the property to Dorothy

sole and separate property?

Whatever it says.

Is that what you did?

That is what it says.

We would offer Exhibit No. 39?


MR. LEWIS: No objections.

THE COURT: Exhibit No. 39 will be received.

HARRISON:

I am going to ask you a question now Mr. D1 Aston

to tell the court your opinion what the value was of

the City of Industry Property when you executed this Quit

Claim Deed?

A

Q

A

Q

You mean the plant?

Yes.

I believe I sold it for around $375,000.00.

Now you earlier testified that you sold it for

a million dollars which is it?

180

EXHIBIT 5

Dorothy D'Aston Testimony

first y

A

1 Q

A

1 Q

marked

A

Q

ears of the marriage?

Yes I did before my children were born.

And how many years did you work then?

Five years that was full time.

I will hand you a 1973 agreement that has been

as exhibit several times?

Yes.

Mrs. D1Aston would you tell the court when you

first saw this 1973 agreement?

A

Q

A

Q

to you

A

up with

When it was handed to me by my husband.

Did you ask Sidney Troxell to prepare this agreement?

No I did not.

Would you tell the court what Mr. D!Aston said

when he handed you the agreement?

He wanted me to sign this so that he would end

out assets divided. I would have certain assets and

he would have certain assets.

Q

A

Q

A

Q

A

Q

A

Did he tell you why he wanted you to do that?

That is the way he wanted it.

Did he say anything about pending lawsuits?

NO.

Or the threat of lawsuits?

No not to my knowledge.

When was the first time you heard that? j

In the court since the divorce.

749

Q

A

Q

A

Q

A

Q

A

Q

A

Q

A

Q

A

Q

propert

A

Q

A

Q

A

Q

of that

A

Q

Since the divorce was filed?

Yes.

Did you read this agreement?

Yes I did.

Did he read the agreement?

Yes.

Did you see him read it?

Yes.

Did he explain it to you?

Yes he did.

Did you see him sign it?

Yes.

Did you sign it?

Yes.

Under this agreement did you receive the L.A. house

Y ?

Yes I did.

And the City of Industry real property?

Yes.

And any cash in bank accounts in California?

Yes.

And do you have an opinion as to what the value

property was at the time?

At the time we bought it or at the time - -

When the 1973 , when this agreement was signed?

750

1 A Not really.

2 Q You have heard Mr. D1Aston testify that he had

3 over a milion dollars worth of coins at this time?

4 A I would have no idea what amount of coins he had

5 at that time.

6 Q You heard him testify to that?

7 A Yes I did.

8 Q Did he at the time have substantial coin collection

9 of great value?

10 A 1973?

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Q Yes.

A Yes he seemed to have coins. I had no idea their

value.

Q Did he have a car collection at that time?

A Yes.

Q You have heard Eric's testimony about his cars?

A Yes.

Q Is Eric's testimony accurate from your experience?

A From seeing the cars around yes.

Q You have also seen those cars at your home?

A Yes.

Q And did Mr. D1 Aston have patents at the time

of this execution of the document was executed?

A Yes.

Q You heard him testify about those patents?

751

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

A

Q

Yes.

When you signed this agreement did you understand

that you were giving away any right you had to real proeprty

outside

A

Q

A

Q

A

Q

A

Q

A

Q

A

Q

stated

would b

propert

A

Q

A

Q

party a

of the United States?

Yes.

And also to his patents?

Yes.

And to his coins?

Yes.

And other collections?

Yes.

And cars?

Yes.

Did you think that was a fair proposal?

Seemed all right to me.

There was also a paragraph in this agreement that

that any property acquired after the agreement

e the property of the person in whose name the

y was listed did you understand that?

Yes.

That is Paragraph 3.

Yes.

Also with respect to Paragraph 5 it stated each I

grees to execute documents necessary to implement this

agreement, did you read that?

752

A

Q

A

Q

A

Q

to you?

! A

! Q

Yes.

And after you signed this did you execute documents?

Yes we had it notarized in 1975.

This document?

Yes.

But did he execute documents far as quit claim deeds

Oh yes.

And Paragraph 7 indicated that both parties had

read and understood it and been advised by counsel did you

read that paragraph?

A

Q

A

Q

A

Q

A

Q

me what

A

Troxell

in evid

she is

Yes.

And you have read the agreement?

Yes I had.

And you saw him read it?

Yes.

And you saw him sign it?

Yes I did.

I hand you Exhibit 100 (indicating) can you tell

that is?

It was a letter written to Don Mullen by Sidney

July 31, 1986 stating that the - -

MR. LEWIS: I would object and that is already

ence and the court can see it. I don't really know ho

tied in.

753

Documents

Bruno D'Aston v. Dorothy D'Aston, et al : Brief of Appellant