Wheeler v. Wheeler

----ooOoo----
MEMORANDUM DECISION
(Not For Official Publication)

Dennis Earl Wheeler,
Plaintiff and Appellant,

v.

Diane Dawn Wheeler,
Defendant and Appellee.

Case No. 971256-CA

F I L E D
(November 27, 1998)

-----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
Jerry Schollian, Orem, and Guy L. Black, Provo, for Appellant
Kellie F. Williams, Salt Lake City, for Appellee

-----

Before Judges Davis, Bench, and Greenwood.

PER CURIAM:

Appellant Dennis Earl Wheeler appeals from an order granting a Rule 60(b) motion for relief from judgment. We affirm.

"The trial court is afforded broad discretion in ruling on a motion for relief from judgment under Utah R. Civ. P. 60(b), and its determination will not be disturbed absent an abuse of discretion. Birch v. Birch, 771 P.2d 1114, 1117 (Utah Ct. App. 1989). The trial court's findings of fact in support of its ruling will not be set aside unless they are shown to be "clearly erroneous." Utah R. Civ. P. 52(a).

It is well-settled in Utah that divorcing spouses have a right to an equitable share of their former spouse's military retirement. See Woodward v. Woodward, 656 P.2d 431, 433-34 (Utah 1982); see also Greene v. Greene, 751 P.2d 827, 831 (Utah Ct. App. 1988)(holding "that military retirement benefits accrued in whole or in part during marriage constitute marital property under Utah law and are subject to division in a divorce proceeding.")

The trial court stated the affidavit of appellee Diane Dawn Wheeler "indicates to the court that there was clearly not an understanding by [her] of her rights to [Dennis'] retirement and that her agreement to the award of military retirement in full to [Dennis] constitutes mistake and excusable neglect under Rule 60(b) of the Utah Rules of Civil Procedure." The court also found Diane did not trade her interest for other marital assets; thus, she relinquished her right to Dennis' retirement for no return. Contrary to Dennis' claim that the value of Diane's share was de minimis, the trial court found that given the limited marital assets, "the retirement appears to be the only substantial asset acquired by the parties during the marriage."

Dennis has not attempted to marshal the evidence in support of the findings and demonstrate that "even if viewed in the light most favorable to the trial court, the evidence is legally insufficient to support the findings." Bailey-Allen v. Kurzet, 942 P.2d 180, 186 (Utah Ct. App. 1997). His brief contains a scant two and one-half pages of argument that is not supported by citations to the record and reflects no effort to satisfy the marshaling requirement. This court may disregard briefs that fail to provide citations to the record and adequate analysis. Christensen v. Munns, 812 P.2d 69, 73 (Utah Ct. App. 1991).

Dennis does challenge the trial court's finding that Diane received no consideration for relinquishing her right to a share of the military retirement. For the first time on appeal, he contends there was a bargain whereby he agreed not to assert certain claims in exchange for Diane's waiver of any claim to his retirement. He cites no record support for the alleged bargain, and the record does not reflect that this argument was made in the trial court in opposition to the Rule 60(b) motion. The claim will not be considered for the first time on appeal. Under the circumstances of this case, we conclude the trial court did not abuse its discretion in granting the Rule 60(b) motion. Accordingly, we affirm the judgment.

Diane requests an award of her costs and attorney fees incurred on appeal under Utah R. App. P. 33. We deny that request.
 

______________________________
James Z. Davis, Presiding Judge
 

______________________________
Russell W. Bench, Judge
 

______________________________
Pamela T. Greenwood, Judge