author: ADAMS, Judge:

text:
    2002 OK CIV APP 127
    Johnny R. GRIGGS, Plaintiff/Appellant/Counter Appellee, v. Leyca K. McKINNEY, Defendant/Appellee/Counter Appellant.
    No. 95,748.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 19, 2002.
    As Corrected July 23, 2002.
    Rehearing Denied Sept. 6, 2002.
    Certiorari Denied Dec. 3, 2002.

      Barry K. Roberts, Norman, OK, for Plaintiff/Appellant/Counter Appellee.
    Gary L. Parrish, Oklahoma City, OK, for D efendani/Appellee/Counter Appellant.
   OPINION

ADAMS, Judge:

¶ 1 Johnny Griggs (Father) filed this paternity action seeking a judicial determination of his support obligation toward M, the child born to Leyca McKinney (Mother) and Father. After a hearing, the trial court determined the amount of child support to be paid by Father, determined Father’s ongoing obligation concerning childcare and medical expenses, and granted Mother a judgment based upon that child support amount from M’s birth less amounts Father had paid already (The Child Support Order). After another hearing, the trial court denied Mother’s request for attorney fees (The Attorney Fee Order).

¶ 2 Before the orders completely reflecting those rulings were filed, Mother relocated out of state, and a controversy developed concerning the appropriate childcare expense. After a hearing in response to a “Motion for Relief’ filed by Father, the trial court entered an order resolving that controversy (The Childcare Expense Order). Father’s appeal alleges error in the first and third orders. Mother’s counter appeal alleges error in the second order. We conclude the trial court did not abuse its discretion in either The Attorney Fee Order or The Childcare Expense Order and affirm those orders. However, we conclude the trial court did abuse its discretion in The Child Support Order and reverse. As a result, we remand the case for further proceedings.

The Child Support Order

¶ 3 The trial court ordered Father to pay Mother $2,361.63 per month for child support in addition to 91% of childcare, health insurance, and uncovered medical expenses. The trial court also awarded Mother a judgment against Father for $49,782.50 for child support covering the period between M’s birth and the date it announced its order.

¶ 4 In doing so, the trial court found Father’s monthly income for purposes of the Child Support Guidelines to be $29,200 monthly and Mother’s income to be $2,800. Relying upon its view of Mocnik v. Mocnik, 1992 OK 99, 838 P.2d 500, the trial court determined the total monthly parental support to be $2,595.20, with Father’s obligation being 91% of that amount, or $2,361.63. Father argues the trial court erred in using only a mathematical extrapolation and not considering either need or lifestyle factors. We agree.

¶ 5 Archer v. Archer, 1991 OK CIV APP 28, 813 P.2d 1059 (Approved for publication by the Supreme Court), is the definitive case in our state for setting child support when the parents’ total monthly income exceeds the highest amount for which the Guideline schedule provides a corresponding level of total parental support. Archer was a divorce case where the parents had been married almost 12 years and. had three minor children. The Court rejected the father’s argument that child support could exceed the highest amount reflected in the Guideline schedule only where the children had “exceptional needs.”

¶ 6 Instead, the Court recognized that the Guidelines adopted by the Legislature took into account both the presumed needs of the children and the parents’ ability to pay. As a result, the Court held “a trial court, when confronted with high total parental income, must determine an appropriate combined support level in excess of the table amount based on the circumstances of each case.” In doing so, “[t]he trial court should consider the childrens’ (sic) needs and the parents’ ability to pay and prior standard of living.” (Emphasis in original.) Archer, 1991 OK CIV APP 28, ¶¶ 10-11, 813 P.2d at 1061.

¶ 7 The trial court order we review here did not follow Archer, but focused completely on Father’s ability to pay. The record contains no evidence concerning the direct and indirect expenses involved in raising M, at least regarding any expenses relevant to determining the child support obligation. The trial court concluded that its mathematical extrapolation approach was authorized by Mocnik. We disagree.

¶ 8 The portion of Mocnik relevant here addressed an argument by the custodial parent who complained that the trial court abused its discretion in determining child support. As in Archer, the parents were married for a significant period and the children had experienced the lifestyle which could be provided by the non-custodial parent’s level of income. Moreover, the custodial parent presented evidence of the children’s direct and indirect expenses. As a tool in analysis, the Court used a mathematical extrapolation to determine what it concluded was a level of child support which “would be consistent with the Guides.” Mocnik, 1992 OK 99,¶ 38, 838 P.2d at 507. The trial court here performed similar calculations and based its order totally on the result.

¶ 9 Nothing in Mocnik suggests that this “one size fits all” mathematical extrapolation is a substitute for the “circumstances of each case” analysis required by Archer. The Mocnik Court merely used the mathematical extrapolation as a means of illustrating that the trial court’s award was not inequitable.

¶ 10 This trial court heard no evidence concerning the direct or indirect expenses for M. Moreover, the “prior standard of living” component of the Archer analysis requires careful consideration where, as here, the parents have never lived together and there is no “pre-divorce standard of living.” Although, as recognized in Archer, a trial court does not err when it allows children to benefit from the affluence of the noncustodial parent simply because the custodial parent receives an incidental benefit, the trial court must be careful to tailor that support to maximize the direct benefit to the child.

¶ 11 This trial court considered neither of these two essential factors in setting child support. As a result, its order setting child support and entering a judgment for back child support is an abuse of discretion and must be set aside. The case must be remanded for a new trial at which the trial court should receive evidence concerning both of these factors and determine an appropriate level of child support based upon the circumstances of this case. We do not consider Father’s additional argument asserting that the Guidelines deny him equal protection of the laws and are unconstitutional because that argument was not raised in the trial court. See Northwest Datsun v. Oklahoma Motor Vehicle Commission, 1987 OK 31, 736 P.2d 516.

The Childcare Expense Order

¶ 12 Approximately two months after the trial court announced its decision which is memorialized in The Child Support Order, Mother relocated to Oregon, and the childcare expense requested by Mother increased dramatically. In addition, Mother ceased to be employed and began work to start her own business. Father filed a “Motion for Relief’ in which he asked the trial court to determine the reasonableness of the amounts requested by Mother for childcare expense. He also contended “it would be more equitable given the circumstances of this particular case and the potential for abuse to set a cap on child care which is reasonable in keeping with the independent contractor status of [Mother].”

¶ 13 The trial court conducted a hearing and received evidence concerning the basis for Mother’s childcare expense claims, her activities related to earning an income, and the services provided to M in the facilities chosen by Mother. In addition, the trial court received evidence concerning the cost at other childcare facilities available to Mother. During that hearing, Father urged the trial court to deviate from the Guidelines by requiring Mother to bear 50% of the childcare cost. In The Childcare Expense Order, the trial court denied Father’s deviation request but did relieve Father of any obligation for his share of childcare expense for four months when the trial court concluded Mother was “coming to this decision” to pursue an opportunity to start her own business and had declined employment opportunities to pursue that business.

¶ 14 The trial court also concluded that Mother was then actively engaged in her business and that Father’s obligation to share proportionately in childcare expenses should resume. However, the trial court set a maximum level on which that obligation was to be based which was less than the amount claimed by Mother because the trial court found that her higher expense included an educational component which should not be included in the childcare expense allocation. The maximum level set by the trial court was based on the evidence presented concerning childcare cost in the area in which Mother now resides.

¶ 15 On appeal, Father contends that the trial court should have exercised its power under 43 O.S.Supp.1998 § 118(A) to deviate from the Guidelines on the allocation of the childcare expense in order to avoid an obligation by Father which was “unjust, inequitable, unreasonable, or inappropriate under the circumstances.” We review the trial court’s decision refusing to do so under an abuse of discretion standard.

¶ 16 The evidence in this record supports the conclusion that Father’s childcare expense obligation increased by approximately $215.00 monthly as a result of Mother’s decision to relocate to Oregon. If we understand Father’s argument, he believes it is inequitable for him to bear any increased costs associated with Mother’s decision to relocate. However, he has provided no authority suggesting that Mother’s exercise of her presumptive right to relocate with the child, see 10 O.S.1991 § 19, should lessen his obligation to contribute to the reasonable cost of childcare. Under the circumstances of this case, Abbott v. Abbott, 2001 OK 31, 25 P.3d 291, suggests otherwise.

¶ 17 The Childcare Expense Order is responsive to the evidence before the trial court and represents a reasoned attempt to balance the interests of Father and Mother. Father has shown no abuse of discretion, and The Childcare Expense Order will be affirmed.

The Attorney Fee Order

¶ 18 Citing Abbott v. Abbott, Mother argues the trial court abused its discretion in denying her attorney fee request because of the wide disparity in the parties’ incomes. The trial court based its order on the conclusion that Mother “has sufficient resources from which to pay her own attorney fees herein.”

¶ 19 In Abbott, the Court concluded the trial court should have made.a larger attorney fee award and abused its discretion in not doing so. Contrary to Mother’s argument, however, the Court did not base its decision only on the disparity in the parties’ incomes. Rather, the Court noted, “[tjhere is considerable disparity in the respective incomes and net worths of the parties.” 2001 OK 31,¶ 12, 25 P.3d at 294. (Emphasis added).

¶ 20 Unfortunately, we have no record of the hearing on attorney fees and are unable to determine whether the trial court’s conclusion that Mother had ample resources to pay her own attorney fees is clearly against the weight of the evidence. Mother had the obligation to secure that record, Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721, and we will not presume error from a silent record, Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496. The Attorney Fee Order must be affirmed.

Conclusion

¶ 21 On this record, we are unable to conclude the trial court abused its discretion in either The Childcare Expense Order or The Attorney Fee Order and those orders are affirmed. However, the trial court did abuse its discretion in basing Father’s child support obligation, exclusive of childcare and medical expense, solely on a mathematical extrapolation from the Guideline schedules rather than evidence concerning the direct and indirect expenses of the child consistent with a lifestyle which would be appropriate for the child under the circumstances, and The Child Support Order, including the judgment for back child support, is reversed. The case is remanded for new trial consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

HANSEN, P.J., and MITCHELL, J., concur.

      . The trial court used the Child Support Guideline Schedule in effect at the time this action was commenced on September 23, 1999, 43 O.S.1991 § 119. Effective November 1, 1999, the Legislature amended that schedule, see 43 O.S.2001 § 119. Neither party raises any appellate objection to this decision, and we express no opinion on whether that decision was correct.

      . The version of § 119 in effect at the time this case was filed provided that the total parental support for a total monthly income exceeding $10,000 should be the amount computed for $10,000 “and such additional amount as the court may determine.” The Schedule showed total parental support at $10,000 for one child was $811, which is 8.11% of monthly income. The trial court applied that same percentage to the remaining $22,000 to reach its result.

      . Opinions by the Court of Civil Appeals which bear this notation are accorded precedential value. See Okla.Sup.Ct.R. 1.200(c)(2).

      . The record does contain some evidence concerning costs of childcare and medical expenses. However, both of these items of expense are allocated, according to the Guidelines, separately from the primary child support obligation and thus have no bearing on "need” for purposes of this analysis.

        .Mocnik compared the Guideline schedule’s highest total parental support amount for two children, $1,352, with the highest total monthly income on the schedule, $10,000, and applied that same percentage, 13.52%, to all of the parents’ income. The trial court here applied 8.11% because the level of total parental support corresponding to $10,000 income is $811. In some sense, this calculation is consistent with the Guideline schedule. However, applying the same percentage to all income in excess of $10,000 does not take into account another fact demonstrated by examining the Guideline schedules, i.e., the ratio between total parental support and income decreases as income increases. If some mathematical extrapolation is helpful, using one that recognizes this fact would be more consistent with the approach adopted by the Legislature. For example, total parental support for one child at $10,000 is $45 dollars more than support for one child at $9,000. Applying that same level of increase to income in excess of $10,000 would result in an extrapolated total parental support amount- of $1,261 for $20,000 in monthly income. These calculations are based on the Guideline schedule in effect when Father filed this case. The Guideline schedule which became effective November 1, 1999, expands the schedule to include monthly incomes up through $15,000 and increases the amounts generally. However, the same general principle is followed, at least after monthly income exceeds $5,000, i.e., the ratio between total parental support and income decreases as income increases.

      . In reaching this conclusion, Archer considered the potential impact of "[d]enying children the benefits which they have experienced from an affluent lifestyle simply because the resources to support that lifestyle” belong to the non-custodial parent. 1991 OK CIV APP 28, ¶ 11, 813 P.2d at' 1061. (Emphasis added.)

      . The Abbott Court reversed a trial court order which required a relocating custodial parent to bear 100% of the transportation cost to enable visitation by the non-custodial parent, citing the non-custodial parent's high income level as a factor to be considered in that decision and strongly suggesting that those costs should be allocated proportionately based on the parties' incomes.


source: Caselaw Access Project

author: LARRY JOPLIN, Vice-Chief Judge:

license: Public Domain

text:
    2002 OK CIV APP 126
    HARTFORD INSURANCE COMPANY OF the MIDWEST, Plaintiff/Appellant/Counter-Appellee, v. Larry DYER and Dyer Glass & Mirror, Inc., a corporation, Defendants/Ap-pellees/Counter-Appellants.
    No. 95,751.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Sept. 12, 2002.
    Certiorari Denied Dec. 10, 2002.

      Phil R. Richards, Thomas D. Hird, Richards & Conner, Tulsa, OK, for Appellant.
    Dennis King, Ashley M. Bibb, King, Taylor & Ryan, P.C., Tulsa, OK, for Appellees.
   Opinion by

LARRY JOPLIN, Vice-Chief Judge:

¶ 1 Plaintiff/Appellant Hartford Insurance Company of the Midwest seeks review of the trial court’s order granting judgment on a jury verdict on Hartford’s subrogation claim against Defendant/Appellee Larry Dyer. In the principal appeal, Hartford complains of impairment of its right of subrogation by the trial court; Dyer counter-appeals the trial court’s award of costs to Hartford as “prevailing party.” After thorough review of the record, we hold the order of the trial court should be affirmed in part, reversed in part, and the cause remanded for further proceedings.

¶ 2 In December 1988 while acting in the scope and course of her employment, Mary Assalone suffered injury in a motor vehicle accident caused by Dyer. To recover for her injuries, Assalone sought benefits from her employer’s workers compensation carrier, Travelers Insurance, and in 1990, also brought an action against Hartford, her employer’s underinsured/uninsured (UM) motorist carrier.

¶ 3 Assalone settled her workers compensation claim with Travelers for $2,183.35 in temporary total disability benefits, $16,510.12 in medical benefits, and $15,000.50 in permanent partial disability benefits, a total of $33,693.97. Travelers then brought an action against Dyer, asserting its right of subrogation to the extent of payment of workers compensation benefits to Assalone. Hartford, apparently in response, filed a third-party petition against Dyer, also asserting a right of subrogation. The actions were consolidated in January 1992, and Assalone amended her petition against Hartford to include a claim for bad faith.

¶ 4 Hartford filed a motion for summary judgment, asserting Assalone’s impairment of its right of subrogation by failure to bring an action against the tortfeasor, Dyer. Dyer, as third-party defendant, filed a motion for summary judgment, asserting Hartford had no mature subrogation claim unless or until Hartford paid Assalone’s claim. The trial court granted the motions for summary judgment of both Hartford and Dyer.

¶ 5 Assalone appealed the order granting summary judgment to Hartford, and Hartford appealed the order granting summary judgment to Dyer. Assalone v. Hartford Acc. & Indem. Co., 1994 OK CIV APP 64, 908 P.2d 812 Pending those appeals, however, in 1993 Travelers settled its subrogation claim against with Dyer for about $30,000.00, and granted Dyer a full release.

¶ 6 In April 1994, the Court of Civil Appeals reversed the orders granting summary judgment to Hartford and Dyer, and remanded for further proceedings. In that case, the Court of Civil Appeals held, in pertinent part:

[Assalone] advised Hartford in advance of the running of the tort statute of limitations that she chose not to sue [Dyer]. Under authority cited above, [Assalone] was clearly within her rights to expect payment of her UM claim by Hartford without first pursuing [Dyer]. The fact that Hartford chose not to act, or even investigate, [Assalone’s] claim does not prevent [Assalone] from receiving UM benefits when such benefits were contracted and paid for by [Assalone’s] employer for the benefit of its employees such as [Assalone]. The policy at issue in this case does not require exhaustion of liability limits or suit against the Dyer.

Assalone v. Hartford Acc. & Indem. Co., 1994 OK CIV APP 64, ¶ 11, 908 P.2d 812, 814.

¶ 7 Upon remand, and two years after mandate, the trial court agreed to bifurcate trial of Assalone’s claim against Hartford, and Hartford’s subrogation claim against Dyer, and set trial of Assalone’s claim first. However, on the eve of trial in January 1999, Hartford and Assalone settled her UM and bad faith claims for approximately $400,000.00.

¶ 8 In preparation for the trial of Hartford’s subrogation claim against Dyer, both Hartford and Dyer filed motions in limine. In accord with the trial court’s rulings on those motions, Hartford was allowed to introduce only those medical bills and lost wages incurred by Assalone which were in excess of the workers compensation settlement. The trial court also ruled the jury verdict could be reduced by the amount Assalone had received in permanent partial disability benefits. Finally, the trial court refused Hartford’s request to exclude the videotaped trial deposition of its medical expert.

¶ 9 In April 2000, the jury returned a verdict for Hartford in the amount of $15,000.00, from which the trial court deducted $15,000.50 (representing PPD benefits paid), denied Hartford’s request for prejudgment interest, entered judgment for Hartford in the amount of $0.00, and granted Hartford’s prayer for costs. Both parties seek review.

¶ 10 In the principal appeal, Hartford complains the trial court erred in limiting its proof of Assalone’s damages, and asserts it should have been permitted to present to the jury all evidence of Assal-one’s medical expenses and lost wages, including the amount Assalone had previously been compensated by Travelers. By force of 85 O.S.1991 § 44, however, only Travelers — as Assalone’s employer’s workers compensation carrier — could assert the right of subrogation to the extent of payment of workers compensation benefits to Assalone. Hartford' — as the subrogated UM insurer'— could only assert whatever rights Assalone had against the tortfeasor, Dyer. Because Travelers had previously settled with and released Dyer, Hartford could not recover from Dyer, even as a trustee, the medical expenses and lost wages for which Assalone had already been paid in workers compensation benefits. Since Dyer had received a release from Travelers for workers’ compensation payments, it was not error for the trial court to exclude evidence of this claim.

¶ 11 Moreover, because Assalone is not allowed to recover for bad faith from Dyer, Hartford is prohibited from recovering from Dyer any damages Hartford paid to Assalone in settlement of Assalone’s bad faith claim. See 36 O.S.1991 § 3636(E).

¶ 12 The remaining question is whether the trial court erred in deducting from the jury verdict $15,000.50, an amount equal to PPD benefits received by Assalone. Dyer argues that since Travelers had been paid and released him from liability, he should get a credit for the PPD benefits. However, an award of permanent partial disability — an entirely statutory creature — in our view, is not recoverable in tort. And, the parties cite, and we find, no authority allowing a tortfeasor credit for workers compensation benefits paid.

¶ 13 Thus, payments of PPD to Assalone are not available to reduce Dyer’s liability and Harford’s verdict for medical expenses, lost wages, pain and suffering, etc. In this regard, we hold the trial court erred in reducing the jury verdict in Hartford’s favor by the lump sum Assalone received for PPD in workers compensation benefits.

¶ 14 In its next several propositions of error, Hartford complains the trial court erred in the admission of evidence. Particularly, Hartford asserts the trial court erred in denying its pre-trial motion in limine, and permitting the introduction of the videotaped testimony of Hartford’s own expert medical witness, retained by Hartford in defense of Assalone’s UM claim, who testified that As-salone did not sustain the extent of the injuries she claimed.

¶ 15 A trial court’s pre-trial rulings on motions in limine are advisory, and only evidentiary rulings during trial remain subject to review. Ellison v. Ellison, 1996 OK 64, 919 P.2d 1. If, then, a party fails to object to an evidentiary ruling during trial — regardless of the trial court’s pre-trial ruling — that party waives any objection. Fritts v. McKinne, 1996 OK CIV APP 132, 934 P.2d 371. In the present case, Hartford failed to raise any contemporaneous objection to the proffered evidence at trial, and accordingly, waived any objection to the admission of its expert’s testimony.

¶ 16 Hartford nevertheless complains that admission of its expert’s testimony was fundamentally unfair because (1) Dyer repeatedly pointed out that the expert had been retained by Hartford, and (2) the expert’s testimony referred to “stale, irrelevant and unauthenticated” medical records of As-salone from many years previously.

¶ 17 Generally, the injection of irrelevant or otherwise inadmissible evidence is not grounds to reverse a jury verdict unless the error was prejudicial. James v. Midkiff, 1994 OK CIV APP 166, ¶ 6, 888 P.2d 5, 6; RJB Gas Pipeline Company v. Colorado Interstate Gas Company, 1990 OK CIV APP 47, ¶ 24, 813 P.2d 14, 21. The test of prejudice is the likelihood the verdict would have been different had the error not occurred measured by the usual criterion of the verdict’s support in the evidence. Matter of M.A.G., 1996 OK CIV APP 103, ¶ 4, 924 P.2d 796, 796; James, 1994 OK CIV APP 166, ¶ 6, 888 P.2d at 6.

V18 As we noted, Hartford interposed no contemporaneous objection to the admission of its expert’s testimony at trial. Moreover, Hartford fails to demonstrate how it was prejudiced. Having reviewed the record, we cannot say the trial court abused its discretion in the admission of evidence as alleged.

¶ 19 Finally, Hartford complains the trial court erred in failing to award it pre-judgment interest on the jury verdict of $15,000.00. Here, Hartford asserts that 12 O.S.1991 § 727(E) mandates such an award. However, and because we reverse that part of the trial court’s judgment deducting $15,000.50 PPD payment from the jury verdict of $15,000.00, we remand this issue to the trial court to determine if pre-judgment interest applies and, if so, to what extent.

¶20 In the counter-appeal, Dyer maintains Hartford’s entire case relies on the allegedly erroneous assumption that Assal-one had a valid UM claim against Hartford. Here, Dyer argues that Assalone could assert no valid UM claim unless and until Assalone’s damages were proven to exceed his liability limit of $100,000.00. So, says Dyer, because the jury verdict of $15,000.00 did not exceed his liability limit, Hartford has no valid subrogated UM claim against him.

¶ 21 However, an insured may pursue the UM insurer directly for the full extent of damages without first pursuing an adjudication of damages by the tortfeasor:

[T]he UM carrier is directly and primarily liable to its insured for the entire loss to be indemnified, except where the insured affirmatively destroys the insurer’s subrogation right, and [t]he UM carrier is statutorily subrogated to the rights of its insured against the tortfeasor and the tort-feasor’s liability carrier, if any there be, and must seek recovery of paid indemnity through an exercise of its light to subrogation.

Burch v. Allstate Ins. Co., 1998 OK 129, ¶ 18, 977 P.2d 1057, 1065.' (Emphasis added.) In the present case, Assalone permissibly sought recovery of the full extent of her damages from the UM insurer, Hartford, and Hartford permissibly asserted its subrogation rights against the tortfeasor, Dyer. Therefore, we find Dyer’s counter appeal without merit.

¶ 22 The trial court’s order granting judgment on the jury verdict is therefore AFFIRMED IN PART, REVERSED IN PART, and the cause REMANDED for further proceedings not inconsistent with this opinion.

JONES and BUETTNER, JJ., concur.

      . Cert. Denied, December 11, 1995; mandate issued, December 14, 1995.

      . Ten years after the accident, nine years after settlement of the workers compensation claim, six years after Travelers settled its subrogation claim with Dyer, and five years after this Court’s pronouncement in Assalone v. Hartford Acc. & Indem. Co.

      .In which Hartford sought to recover from Dyer the damages it had paid to Assalone.

      . Assuming Travelers had not already been paid by the tortfeasor, Dyer, Assalone could have sued Dyer directly for her damages and some workers’ compensation benefits, but only as trustee for the workers’ compensation insurance carrier under § 44.

      . We are bolstered in this conclusion since a UM insurer is not entitled to a reduction in its limit of liability by amounts paid in workers compensation benefits. 36 O.S. § 3636(E); Chambers v. Walker, 1982 OK-, 653 P.2d931.

      ,In defense of Assalone's UM claim, and to limit its potential UM liability exposure, Hartford sought to minimize Assalone's damages. On its subrogated claim against the tortfeasor, however, and in order to recover to the fullest extent of its payment of UM benefits to Assalone, Hartford sought to maximize Assalone's damages.

      . Assuming arguendo Hartford renewed or preserved its objection to this evidence, Hartford fails to cite any applicable authority for its exclusion.

      . That section provides in pertinent part:
      Except as provided by subsection F of this section, if a verdict for damages by reason of personal injuries or injury to personal rights including, but not limited to, injury resulting from bodily restraint, personal insult, defamation, invasion of privacy, injury to personal relations, or detriment due to an act or omission of another is accepted by the trial court, the court in rendering judgment shall add interest on the verdict at a rate prescribed pursuant to subsection I of this section from the date the suit resulting in the judgment was commenced to the earlier of the date the verdict is accepted by the trial court as expressly stated in the judgment, or the date the judgment is filed with the court clerk.

      . Dyer's counter appeal alleging the trial court erred in awarding Hartford its costs on the grounds Hartford did not prevail due to the trial court’s judgment of $0.00 is rendered moot by this Court's pronouncements infra.


author: HOWE, Justice:

text:
    2002 UT 72
    Christopher WICKHAM, Plaintiff and Appellee, v. Hank GALETKA, Warden, Utah State Prison, Defendant and Appellant.
    No. 20000716.
    Supreme Court of Utah.
    July 26, 2002.
    Rehearing Denied Dec. 5, 2002.

      Roger K. Seoweroft, Salt Lake City, for plaintiff.
    Mark Shurtleff, Att’y Gen., Erin Riley, Asst. Att’y Gen., Salt Lake City, for defendant.
   HOWE, Justice:

INTRODUCTION

¶ 1 The State appeals from a judgment granting post-conviction relief in the form of a new trial to petitioner Christopher Wick-ham who had been convicted of two counts of aggravated sexual assault, each a first degree felony, in violation of Utah Code Ann. §76-5-405 (1996).

BACKGROUND

¶ 2 This case arises from the sexual assault of a sixteen-year-old girl while she was at a party on the evening of December 28, 1997. At trial, the victim testified that she was beaten and later sexually assaulted and sodomized by Wickham and codefendant Danny Pliego. She also testified that following the beating and assaults, she was unable to move and remained in the bedroom where the incident took place until the next morning.

¶ 3 When she awoke, according to her further testimony, she called her sister to pick her up. Upon arriving, the sister noticed that the victim was distressed. Later, the victim told her sister what had happened but refused to report it to the authorities because she had recently run away from the Adolescent Residential Treatment and Education Center (Artec), a nonprofit organization specializing in teenage behavioral problems, and did not want to return. Throughout the next two months, she received medical attention several times for abdominal pain and vaginal bleeding. On February 22,1997, two months after the assaults, she informed the police about the incident.

¶ 4 The State charged Wickham and code-fendant Pliego with two counts of aggravated sexual assault. Pliego pleaded guilty to an amended charge of unlawful sexual intercourse, a third degree felony under Utah Code Ann. § 76-5-401 (1990). Wickham was convicted as charged after a jury trial. He did not appeal.

¶ 5 Subsequently, Wickham filed a pro se petition for post-conviction relief. He requested in discovery, copies of all records relating to the victim from Artec, the Division of Family Services (DFS), Child Protective Services (CPS), the Salt Lake District Attorney, and the Utah Attorney General. The State objected to the request. After a hearing on the issue, the court ordered an in camera review of the records to determine if they contained information material to Wick-ham’s defense. The court then provided Wickham with copies of the records it found material to his defense and granted his petition for post-conviction relief by vacating his convictions and ordering a new trial.

¶ 6 The State now appeals from the post-conviction judgment. Earlier, Wickham moved to dismiss the appeal, arguing that the State is not authorized to appeal from an order granting a new trial. The State opposed the motion, and this court deferred ruling on the motion until plenary presentation and consideration of the entire case.

STANDARD OF REVIEW

¶ 7 Generally, an appeal from a judgment on a petition for post-conviction relief raises questions of law reviewed for correctness, giving no deference to the post-conviction court’s conclusion. Parsons v. Barnes, 871 P.2d 516, 518 (Utah 1994).

ANALYSIS

¶ 8 The State contends that (1) it has the right to appeal from a final judgment on a petition for post-conviction relief, (2) the trial court erred in granting the petition for post-conviction relief because the new information relied on is merely impeachment evidence, and (3) the trial court additionally erred in granting the petition because Wickham has failed to establish that no reasonable trier of fact could have found him guilty. We address each issue separately.

I. RIGHT TO APPEAL

¶ 9 Wickham petitioned for relief under the PosMDonviction Remedies Act (the Act). Utah Code Ann. §§ 78-35a-101 to -110 (1996). Under the Act, a person who has been convicted and sentenced for a criminal offense may file a civil action for post-conviction relief to vacate or modify the conviction or sentence. Id. Wickham contends that the post-conviction order granting a new trial is not an appealable order because the right of appeal is limited to “final orders and judgments” by rule 3(a) of the Utah Rules of Appellate Procedure. He relies on State v. Kelbach, 569 P.2d 1100 (Utah 1977), where we held that the State has no right to appeal in criminal cases except as expressly provided for by statute. Id. at 1102. His argument, however, overlooks two key factors.

¶ 10 First, a petition for post-conviction relief is a civil action, specifically governed by rule 65C of the Utah Rules of Civil Procedure. Wickham’s reliance on statutes, other rules, and cases that apply in other civil or criminal proceedings is misplaced. Rule 65C of the Utah Rules of Civil Procedure provides in relevant part:

(m)(l) If the court vacates the original conviction or sentence, it shall enter findings of fact and conclusions of law and an appropriate order. If the petitioner is serving a sentence for a felony conviction, the order shall be stayed for 5 days. Within the stay period, the respondent shall give written notice to the court and the petitioner that the respondent will pursue a new trial, pursue a new sentence, appeal the order, or take no action.

65C(m)(l) (1999).

¶ 11 Second, Wickham overlooks the fact that the Act explicitly provides the right to appeal in sections 78-35a-108 and 78-35a-110. Section 78-35a-108(2)(a) provides:

If the petitioner is serving a felony sentence, the order shall be stayed for five days. Within the stay period, the respondent shall give written notice to the court and the petitioner that the respondent will pursue a new trial or sentencing proceedings, appeal the order, or take no action.

§ 78-35a-108 (emphasis added). Further, section 78-35a-110 allows any party “to appeal from the trial court’s final judgment on a petition for post-conviction relief.” § 78-35a-110.

¶ 12 Thus both the Act and rule 65C make it clear that either party may appeal from a final judgment or order on a petition for post-conviction relief. Accordingly, the State clearly has the right to appeal from the final judgment and order granting the petition for post-conviction relief in this case. Wickham’s motion to dismiss the appeal is denied.

II. IMPEACHMENT EVIDENCE

¶ 13 The State contends that the trial court erred in granting the petition because the new evidence relied on was merely impeachment evidence. Section 78-35a-104(l)(e)(iii) of the Act provides that newly discovered evidence may merit relief when “the material evidence is not merely impeachment evidence.” See State v. Boyd, 2001 UT 30, ¶ 28, 25 P.3d 985, 993 (“Newly discovered evidence does not warrant a new trial where its only use is impeachment.”); State v. Worthen, 765 P.2d 839, 851 (Utah 1988) (“Generally, newly discovered impeachment evidence does not ordinarily warrant a new trial.”). Accordingly, under the Act, Wickham has the burden of pleading and proving that the new evidence is not “merely impeachment evidence.” § 78-35a-104(iii).

¶ 14 Wickham contends that the new evidence is not offered solely for impeachment because it is directly relevant to the substance of the victim’s testimony at trial. The new evidence consisted of social service records that were released to counsel by the court following an in camera review, including documents generated by DCFS and Valley Mental Health. These go beyond mere impeachment, according to Wickham, because “the evidence goes directly to [the victim’s] ability to perceive and remember events and to testify competently at trial.” We disagree. Although the new evidence offered by Wickham may have strong impeachment value—even to the point of calling into question a witness’s credibility—the strength of the evidence does not change the fact that it is being offered solely for impeachment purposes. The evidence is not directly related to the charges against him; it does not negate a specific element of the prosecution’s ease. Instead, the information in the victim’s social service records goes solely to the credibility of the victim and serves only to impeach her. It has no other use.

¶ 15 Wickham also asserts that the evidence is not merely impeachment evidence because the conviction rests solely on the testimony of the victim. He argues that the victim suffered from chronic mental illness, thus her ability to perceive events casts doubt on her testimony. Yet, it is not the number of witnesses, but the purpose for which the evidence is offered that determines whether certain evidence is “merely impeachment evidence.” Because Wickham relies on this evidence for nothing more than to impeach the victim’s testimony, it is merely impeachment evidence regardless of amount and type of witness testimony it seeks to impeach.

III. WICKHAM’S ARGUMENTS FOR AFFIRMATION ON OTHER GROUNDS

¶ 16 Wickham argues that even if we reverse the trial court’s ruling regarding the victim’s medical records, we should still affirm its grant of post-conviction relief on two other grounds. First, Wickham asserts that the testimony of eyewitnesses Danny Pliego and Anthony Anderson constituted newly discovered material evidence warranting post-conviction relief. Both witnesses testified at the post-conviction hearing that they were with Wickham during all of the evening in question and that Wickham did not commit the offense. In addition to the previously mentioned requirement that newly discovered evidence must not be merely impeachment evidence, section 78-35a-104 makes post-conviction relief contingent on the fact that

(i) neither the petitioner nor petitioner’s counsel knew of the evidence at the time of trial or sentencing or in time to include the evidence in any previously filed post-trial motion or post-conviction proceeding, and the evidence could not have been discovered through the exercise of reasonable diligence;
(ii) the material evidence is not merely cumulative of evidence that was known;
(iv) viewed with all the other evidence, the newly discovered material evidence demonstrates that no reasonable trier of fact could have found the petitioner guilty of the offense or subject to the sentence received.

§ 78-35a-104.

¶ 17 At the time of Wickham’s trial, Pliego was in police custody out of state awaiting extradition to Utah. Wickham’s trial counsel testified that he could have attempted to seek a continuance of the trial until Pliego was back in the state, but he made a tactical decision not to seek a continuance because the state’s medical expert was not going to be available to testify on the date the trial had been set. Counsel made the decision to force the State to go to trial without any medical evidence, which counsel thought would weaken the State’s case. Thus Pliego’s testimony does not qualify as “newly discovered.”

¶ 18 The testimony of Anderson, while not discoverable until after the trial, fails to meet the high standard prescribed by section 78-35a-105(iv). See State v. Julian, 2002 UT 61, ¶ 16, 771 P.2d 1061. At the post-conviction relief hearing, Anderson testified that he was with Wickham the entire evening of the alleged crime. He testified further that he and Wickham attended the party at which the victim was present, but that the victim appeared to be very close to another man and that Wickham was not alone with the victim from the time they arrived at the party until she left the following morning. This evidence is, of course, very favorable to Wickham, but it is not so compelling as to demonstrate that no reasonable trier of fact could have found Wickham guilty. A jury could rationally disbelieve Anderson in view of other evidence implicating Wickham.

¶ 19 Wickham also asserts that we should affirm the judgment because he had ineffective assistance of trial counsel. The trial court found that his counsel had been effective. He argues that his counsel was ineffective because he failed to interview Pliego and Anderson and to call them as witnesses at his trial. We do not agree. To show ineffective assistance of counsel, “a defendant must show (1) that counsel’s performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel’s deficient performance there is a reasonable probability that the outcome of the trial would have been different.” State v. Smith, 909 P.2d 236, 243 (Utah 1995); see also State v. Templin, 805 P.2d 182, 186 (Utah 1990); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The failure of Wickham’s trial counsel to interview and call Anderson as a witness does not meet the first prong of this test because, as the trial court found, though counsel attempted to locate Anderson, he did not know of his whereabouts or how to contact him and might not have even known his name beyond the moniker “A.J.” Counsel’s failure to interview and call Pliego as a witness also does not meet the first prong. As has already been pointed out, a tactical decision was made by Wickham’s trial counsel not to seek a continuance of the trial to a later date when Pliego would be back in the state. See State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993) (sound trial strategy does not demonstrate inadequacy of counsel). Further, when trial counsel attempted to contact Pliego after the trial, Pliego, on advice of his counsel, refused to speak with him. There is no reason to assume that he would have cooperated if he had been contacted earlier.

CONCLUSION

¶ 20 We conclude that the trial court erroneously granted Wickham post-conviction relief because the newly discovered evidence does not meet the requirements enumerated in the Act. The evidence is merely impeachment evidence, addressing only the credibility of the victim. Further, the judgment below cannot be affirmed on the alternate grounds urged by Wickham. Therefore, we reverse the judgment for post-conviction relief.

¶ 21 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice RUSSON, and Justice WILKINS concur in Justice HOWE’s opinion.


author: JACKSON, Judge: DURRANT, Associate Chief Justice,

text:
    2002 UT 93
    Glade Leon PARDUHN, Plaintiff and Appellant, v. Natalie Buchi BENNETT, Allison Buchi, Annabelle Buchi, Lance Buchi and Jessica Buchi the “Buchi Children” and Joanne Buchi, Defendants and Appel-lees.
    Nos. 20010811, 20010926.
    Supreme Court of Utah.
    Sept. 6, 2002.
    Rehearing Denied Dec. 5, 2002.

      P. Bryan Fishburn, Salt Lake City, for plaintiff.
    Martin S. Tanner, Susan Black Dunn, Tim Dalton Dunn, Salt Lake City, for defendants.
   JACKSON, Judge:

BACKGROUND

¶ 1 On May 23, 1979, Brad Buchi and Glade Parduhn agreed to form an equal partnership under the name University Texaco Company and to conduct a service station business. The partners added a buy-sell agreement to the partnership agreement, which provided that “in the event of death of either” partner, the survivor would purchase the decedent’s interest in the “business” and “do with the business as he sees fit.” They also agreed that the buy-out would be funded by the proceeds of life insurance policies on each other’s lives, the premiums of which would be paid by the partnership.

¶ 2 On January 25, 1984, Buchi and Par-duhn amended their partnership agreement to increase the amount of the insurance coverage from $20,000 to $100,000, and purchased life insurance coverage for that amount. On January 4, 1989, without amending the partnership agreement, Buchi and Parduhn again increased the insurance coverage on each other’s lives to $300,000 and $250,000 respectively. The $300,000 policy on Buchi’s life named Parduhn as the beneficiary and “buy/sell partner” as the purpose for the policy.

¶ 3 Buchi and Parduhn operated their business for eighteen years. Early in 1997, they contracted to sell their business and service stations to Blackett Oil Company. They closed their deal on July 14, 1997, transferred the business assets to Blackett, and ceased to do business. Buchi died on August 7, 1997. On November 6, 1997, Parduhn filed an action to establish his right to the proceeds of the insurance policy on Buchi’s life. Buchi’s wife and children argued that they should receive the proceeds under the buy-sell agreement. Parduhn filed a motion for summary judgment, which the trial court denied on the grounds that there were genuine issues of material fact.

¶4 In its August 27, 2001 Memorandum Decision, the trial court awarded the insurance proceeds to Buchi’s survivors, determining that the buy-sell agreement remained effective after the business and its assets were sold, that the insurance policy’s designation of Parduhn as the beneficiary was ambiguous, and that “Buchi intended that [Parduhn] not be the actual beneficiary but the beneficiary only to pass on the proceeds to Buchi’s survivors.” Parduhn appeals both the trial court’s denial of his motion for summary judgment and its Memorandum Decision.

ISSUES AND STANDARDS OF REVIEW

¶ 5 Parduhn challenges the trial court’s denial of his motion for summary judgment. “We review the trial court’s grant or denial of a motion for summary judgment for correctness and accord no deference to the trial court’s conclusions of law.” Malibu Inv. Corp. v. Sparks, 2000 UT 30, ¶ 12, 996 P.2d 1043. Parduhn also challenges the trial court’s conclusion that the insurance contract was ambiguous. “Whether a contract term is ambiguous is a question of law, which we review for correctness.” Sharon Steel v. Aetna Cas. & Sur., 931 P.2d 127, 134 (Utah 1997).

¶ 6 Finally, Parduhn challenges the trial court’s conclusion that the buy-sell agreement was effective at the time of Bu-chi’s death. “[WJhether a contract exists between parties is a question of law which we review for correctness.” John Deere Co. v. A & H Equip., 876 P.2d 880, 883 (Utah Ct.App.1994).

ANALYSIS

¶ 7 The insurance policy unambiguously designates Parduhn as the beneficiary. Thus, we reverse the trial court’s determination that the insurance policy’s designation of Parduhn as the beneficiary was ambiguous. Accordingly, the key issue remaining is whether the buy-sell agreement remained in effect after the partners sold the partnership business because the trial court’s ultimate conclusion hinges on this question. Because Parduhn directly challenges the trial court’s conclusion that the buy-sell agreement remained effective, only after we review this ruling can we examine the parties’ respective rights to the proceeds of the insurance policy-

¶ 8 The trial court ruled that “because it was still in effect at Buchi’s death, the buy-sell agreement, if it existed, was still in effect.” We hold that the trial court erred in

this conclusion because Buchi and Parduhn contracted to sell and sold the major assets and “the business” to Blackett Oil Company. Thus they terminated the buy-sell agreement and also dissolved their partnership prior to Buchi’s death.

I. SALE OF THE BUSINESS

¶ 9 Buchi and Parduhn agreed to form their equal partnership under the name University Texaco Company and to conduct a service station business. They operated their business for eighteen years. Early in 1997, they agreed to sell their business and service stations to Blackett Oil Company. They closed their deal on July 14, 1997, transferred the business assets to Blackett, and ceased to do business.

¶ 10 At that point, there was no business, and neither owned a one-half interest in any business. Further, their joint and mutual sale to Blackett invoked the dissolution provisions of the partnership agreement. Accordingly, they began the process of winding up their partnership and liquidating the residual assets.

¶ 11 “A contract may be rescinded or discharged by acts or conduct of the parties inconsistent with the continued existence of the contract, and mutual assent to abandon or rescind a contract may be inferred from the attendant circumstances and conduct of the parties.” 17A Am.Jur.2d Contracts § 558 (1991) (emphasis added); accord Green v. Garn, 11 Utah 2d 375, 359 P.2d 1050,1054 (1961) Copper King Mining Co. v. Hanson, 52 Utah 605, 176 P. 623, 625 (1918); see also 17A Am.Jur.2d Contracts § 557 (1991) (“If the parties to a contract make a new and independent agreement concerning the same matter and the terms of the latter are so inconsistent with those of the former that they cannot stand together, the latter may be construed to discharge the former.”); 17B C.J.S. Contracts §§ 434, 435 (1999).

¶ 12 Buchi and Parduhn’s joint and mutual contract with Blackett discharged the partnership agreement because the sale was entirely inconsistent with the partnership’s purpose of running a service station business. Both the subject and purpose of their buy-sell agreement, the service station business, could no longer be reached by the buy-sell agreement. That agreement provided that on the death of either partner, the survivor would purchase the decedent’s interest in the “business” and “do with the business as he sees fit.” In other circumstances, a buy-sell agreement could relate to buying and selling the residual assets after dissolution of the partnership, and thus the buy-sell agreement would not necessarily be inconsistent with the sale of the business and dissolution. This particular buy-sell agreement, however, provided that the surviving partner would purchase the decedent partner’s interest in the business for the purpose of continuing the business. Moreover, it contemplated buying and selling no other assets than the business itself. The business could only be sold once, and it was sold to Blackett. Thus, no business was left for a surviving partner to purchase with the proceeds of a buy-sell agreement. It would be highly unlikely that the partners ever intended the residual assets to be the subject of the buy-sell agreement, as the dissent hypothesizes. Further, the residual assets would be liquid, and there is no reason why one partner would wish to exchange liquid assets for the liquid assets of another.

¶ 13 Because the partners no longer owned the business, and the buy-sell agreement could no longer allow the surviving partner to continue the business “as he sees fit,” the sale of the business to Blackett was completely inconsistent with them buy-sell agreement. Thus, Buchi and Parduhn mutually assented by their acts and conduct in selling the business to terminate not only the partnership agreement generally, but also the buy-sell agreement specifically.

II. DISSOLUTION OF THE PARTNERSHIP

¶ 14 Likewise, Buchi and Parduhn’s transaction with Blackett eliminated the object of and purpose for their partnership. “Partnership” is defined as “an association of two or more persons to carry on a business

for profit.” Utah Code Ann. § 48-1-3 (1998) (emphasis added). Buchi and Parduhn agreed to form their partnership to conduct a service station business. Based on the sale of the business in 1997, the trial court correctly ruled that the partnership was dissolved. See Utah Code Ann. § 48-1-26 (1998) (“The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on, as distinguished from the winding up, of the business.”) see also 59A Am.Jur.2d Partnership § 808 (1987) (“In short, dissolution designates the point in time when the partners cease to carry on the business together.”); Cave v. Cave, 81 N.M. 797, 474 P.2d 480, 484 (1970); Hansen v. Kiernan, 159 Mont. 448, 499 P.2d 787, 789-92 (1972) (reasoning that sale of critical assets of the partnership dissolved the partnership); cf. 68 C.J.S. Partnership § 303 (1998) (stating conduct inconsistent with the continuance of the partnership results in dissolution of the partnership); 59A Am.Jur.2d Partnership § 824 (1987) (same, citing Cave, 81 N.M. 797, 474 P.2d 480); Kruse v. Vollmar, 83 Ohio App.3d 378, 614 N.E.2d 1136, 1140 (1992) (same); Lindsay v. Bevins, 204 Va. 74, 128 S.E.2d 920, 922-923 (1963) (same).

¶ 15 Parduhn and Buchi agreed that their buy-sell agreement would be triggered “in the event of death of either of the partners,” and nowhere did the partners agree that the buy-sell agreement would remain in effect after dissolution of the partnership. Because the partnership was dissolved prior to Bu-chi’s death, the buy-sell agreement was rendered ineffective. See Girard Bank v. Haley, 460 Pa. 237, 332 A.2d 443, 446 (1975) (“If ... dissolution occurred during the lifetime of [a partner], those portions of the agreement, which are concerned solely with the effect of the death of a partner, are not germane.”); Goergen v. Nebrich, 12 Misc.2d 1011, 174 N.Y.S.2d 366, 369 (N.Y.Sup.Ct. 1958) (“[T]he partnership was dissolved from the date of the decree. It cannot now be said that the death of the defendant ... caused the dissolution of the partnership so as to make applicable the provisions of the buy and sell agreement.”); see also 59A Am. Jur.2d Partnership § 814 (1987) (“[T]he effective date of dissolution is the date of the first effective act of dissolution. Subsequent acts or causes of dissolution are irrelevant.”). We reverse the trial court’s legal conclusion that the buy-sell agreement survived the sale of the business and the dissolution of the partnership because: (1) Buchi and Parduhn “rescinded or discharged [the buy-sell agreement] by [their] acts or conduct ... inconsistent with the continued existence of the” buy-sell agreement, 17A Am.Jur.2d Contracts § 558, and (2) the dissolution of the partnership prior to Buchi’s death also rendered the buy-sell agreement ineffective. Accordingly, we also reverse the trial court’s award of the insurance proceeds to Buchi’s survivors because it was premised on the validity of the buy-sell agreement at the time of Buchi’s death.

III. DISTRIBUTION OF INSURANCE POLICY PROCEEDS

¶ 16 Upon termination of the buy-sell agreement, the Utah Insurance Code governs distribution of the insurance policy proceeds. Section 31A-21-104(2)(a) specifically limits partners’ insurable interests, required by section 31A-21-104(l)(b) for obtaining insurance generally, to those that are “for purposes of insurance contracts that are an integral part of a legitimate buy-sell agreement.” Utah Code Ann. § 31A-21-104(2)(a) (1999). Because the buy-sell agreement was terminated, Parduhn had no insurable interest which was “for purposes of [an] insurance, contracts that [was] an integral part of a legitimate buy-sell agreement.” Id. Thus, at the time of Buchi’s death, Parduhn lacked an insurable interest under section 31A-21-104(l)(b), and may “not knowingly procure ... an interest in the proceeds of [the] insurance policy.” Id. § 31A-21-104(l)(b).

¶ 17 However,

[a]n insurance policy is not invalid because the policyholder lacks insurable interest ... but a court with appropriate jurisdiction may order the proceeds to be paid to some person[] who is equitably entitled to them, other than the one to whom the policy is designated to be payable, or it may create a constructive trust in the proceeds or a part of them on behalf of such a person, subject to all the valid terms and conditions of the policy other than those relating to insurable interest or consent.

Id. § 31A-21-104(5). Accordingly, we remand for the trial court to equitably distribute the insurance proceeds pursuant to Utah Code Ann. § 31A-21-104(5).

CONCLUSION

¶ 18 We affirm the trial court’s denial of Parduhn’s motion for summary judgment on other grounds. However, we reverse the trial court’s legal conclusions that the buy-sell agreement survived the sale of the business and the dissolution of the partnership and that the insurance policy’s designation of the beneficiary was ambiguous. Thus, we also reverse the trial court’s award of the insurance proceeds to Buchi’s survivors, and remand for the trial court to distribute the proceeds in a manner consistent with this opinion.

¶ 19 Justice HOWE and Judge DAVIS concur in Judge JACKSON’s opinion.

¶20 Having disqualified themselves, Justice RUSSON and Justice WILKINS do not participate herein; Judges NORMAN H. JACKSON and JAMES Z. DAVIS from the Court of Appeals sat.

DURRANT, Associate Chief Justice,

concurring in part and dissenting in part:

¶ 21 I concur with the majority’s conclusion that the insurance policy unambiguously named Parduhn as the beneficiary of the insurance contract. I further agree with the majority’s conclusion that the partnership between Buchi and Parduhn was dissolved, although not terminated, at Buchi’s death. I disagree with the majority’s conclusion, however, that, as a matter of law, the buy-sell provision of the partnership agreement was inoperative when Buchi died. In my view, we cannot decide whether the buy-sell provision remained in effect because the intended purpose of the buy-sell provision is ambiguous. I would therefore remand for a determination of that factual question.

¶ 22 The majority concedes that “a buy-sell [provision] could relate to buying and selling the residual assets after dissolution of the partnership, and thus ... [might] not necessarily be inconsistent with the sale of the business and dissolution.” (Emphasis added.) The majority sidesteps this possibility, however, by concluding that the buy-sell provision at issue “contemplated buying and selling no other assets than the business itself.” Put differently, the majority concludes that the plain language of the buy-sell provision demonstrates that it was designed solely to fund transactions related to the service stations. Relying on this conclusion, the majority goes on to hold that because the service stations had been sold, the buy-sell provision had no existing purpose at the time Buchi died. I disagree.

¶ 23 The majority mistakenly decides as a matter of law what is in reality a question of fact. Specifically, it reaches a legal conclusion regarding the intended purpose of the buy-sell provision even though the provision’s purpose is ambiguous. Five factors support this view.

¶24 First, the buy-sell provision declares that after paying the insurance proceeds to the decedent’s survivors, “[t]he surviving partner will own the business and may do with the business as he see’s fit.” (Emphasis added.) The phrase “the business” is not defined anywhere in the partnership agreement, however, and is inherently vague. Indeed, the word business means, among other things, “economic dealings,” Webster’s Collegiate Dictionary 154 (10th ed.1998), or a “commercial enterprise carried on for profit,” Black’s Law Dictionary 192 (7th ed.1999). Thus, contrary to the majority’s view, the purpose of the buy-sell provision could extend to any asset of the partnership’s business, including residual assets remaining after dissolution. The buy-sell provision’s intended purpose is therefore capable of more than one reasonable interpretation. Accordingly, it is ambiguous. See Peterson v. Sunrider Corp., 2002 UT 43, ¶ 19, 48 P.3d 918 (explaining that a “contract provision is ambiguous if it is capable of more than one reasonable interpretation” (internal quotations omitted)).

¶ 25 Second, the majority’s narrow interpretation of the intended purpose of the buy-sell provision ignores the partners’ agreement regarding what assets the surviving partner could purchase upon the death of the other partner. Specifically, section 13 of the partnership agreement states that “[ujpon the death of either partner, the surviving partner shall have the right to purchase the interest of the decedent in the Partnership .... ” (Emphasis added.) Section 13 thus provides the surviving partner with the right to purchase any interest the decedent possessed in the partnership, including residual assets after dissolution. Given that the surviving partner maintains the right to purchase any interest the decedent partner possessed at the time of his death, I see no reason for this Court to assume that the buy-sell provision of the partnership agreement was intended to fund the purchase of the service stations alone. Rather, when viewed in its entirety, the partnership agreement suggests that the partners might have intended the buy-sell provision to extend to any asset of the partnership, including residual assets remaining after dissolution.

¶26 Third, the majority asserts that “[i]t would be highly unlikely that the partners ever intended the residual assets to be the subject of the buy-sell [provision]....” (Emphasis added). The standard for deciding, as a matter of law, whether the buy-sell provision had an existing purpose, however, is not whether something is “highly unlikely.” Rather, it must be clear that no reasonable trier of fact could find the provision was intended to purchase residual assets. See Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1001 (Utah 1991) (explaining that the intent of the parties is primarily a jury question and will only be decided as a matter of law if no reasonable jury could reach a contrary conclusion). This standard is required in the instant action because the district court never addressed the purpose of the buy-sell provision.

¶ 27 Fourth, although not required to uphold the contractual provision, a logical reason existed for the partners to extend the buy-sell provision to residual assets. Specifically, the partners might have drafted the buy-sell provision to establish a set value for the deceased partner’s interest in the partnership.

¶ 28 Finally, contrary to the majority’s assertion that any decision to sell the gas stations would result in “residual assets [that] would be liquid,” that result was not inevitable. For example, the gas stations could have been exchanged for another business or real property. Regardless, the partners were free to enter into a contract that mandated an exchange of liquid assets. See, e.g., Salt Lake County v. Western Dairymen Coop., 2002 UT 39, ¶ 18, 48 P.3d 910 (stating that “we have repeatedly held that competent parties are free to bargain for any term that does not require a violation of the law”).

¶ 29 Accordingly, a question of fact exists regarding the buy-sell provision’s purpose, and I would remand for a factual determination on that issue. See Plateau Mining Co. v. Utah Div. of State Lands & Forestry, 802 P.2d 720, 725 (Utah 1990) (noting that where ambiguity exists in a contract, the intent of the parties is a question of fact to be determined by the trier of fact).

¶ 30 Chief Justice DURHAM concurs in Associate Chief Justice DURRANT’s concurring and dissenting opinion.

      . Although it reluctantly prefaces its conclusion by the phrase, “if it existed," the trial court's conclusion that the buy-sell agreement was still in effect necessitates a conclusion that it also existed.

      . Accordingly, we affirm the district court's denial of Parduhn’s summary judgment motion based on this legal conclusion, rather than on the existence of genuine issues of material fact.

      . " 'Person' includes an individual, partnership, corporation, incorporated or unincorporated association, joint stock company, trust, reciprocal syndicate, or any similar entity or combination of entities acting in concert." Utah Code Ann. § 31A-1-301 (1999) (emphasis added). It is conceivable that the insurance policy and its proceeds belonged to the partnership entity. Property acquired with partnership funds are presumed to be assets of the partnership, including insurance on the life of a partner. See 59A AmJur.2d Partnership §§ 358, 362 (1987); see also Ferdinand S. Tinio, Annotation, Insurance on Life of Partner as Partnership Asset, 56 A.L.R.3d 892, 896-907, 1974 WL 35133 (1974) (making note of cases where payment of premiums was relevant or determinative in deciding insurance was partnership asset). However, this presumption may be rebutted with evidence of a contrary intention by the parties. See 59A Am.Jur.2d Partnership § 359 (1987). In determining the intent of the parties regarding whether such insurance is an asset of the partnership, courts have considered several factors, especially who the policy designates as the beneficiary and who paid the policy premiums. See 56 A.L.R.3d at 895-96.
      Here, the trial court found that the intent of the partners was to keep the cost equal for the partnership and that the partnership in fact paid the premiums. In the event the insurance policy is an asset of the partnership, the proceeds would be divided equally between Buchi's estate and Parduhn, pursuant to the partnership agreement regarding asset division at winding up.

      . Although the majority refers to the buy-sell provision as an independent contract or agreement, it is actually an amendment to the partnership agreement, and I refer to it as such.