Reese v. Reese

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Sheila Reese,
Appellant,

v.

Thomas E. Reese,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 961749-CA

F I L E D
March 9, 2000
  2000 UT App 63 -----

Third District, Salt Lake Department
The Honorable Tyrone Medley

Attorneys:
Mary C. Corporon, Salt Lake City, for Appellant
Brent D. Ward and Bret F. Randall, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Davis.

JACKSON, Associate Presiding Judge:

The supreme court remanded five issues for our further consideration. We first dispose of three of the issues on the basis of inadequate briefing. The three issues are as follows: Did the trial court abuse its discretion in refusing to (1) impute additional income to Mr. Reese for the time during the summer months when he did not seek secondary employment; (2) award Ms. Reese alimony; and (3) award Ms. Reese her attorney fees? We declined to consider these arguments on their merits because of Ms. Reese's inadequate briefing.

"'"[A] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research."'" State v. Thomas, 1999 UT 2, ¶11, 974 P.2d 269 (citations omitted); accord Child v. Gonda, 972 P.2d 425, 430 (Utah 1998); State v. Thomas, 961 P.2d 299, 305 (Utah 1998). We will not consider "argument[s] that a party has failed to adequately brief." Thomas, 1999 UT 2 at ¶11; see also Mackay v. Hardy, 973 P.2d 941, 947-48 (Utah 1998) ("This court, as well as the court of appeals, has held in numerous cases that we will not address issues not adequately briefed."); Thomas, 961 P.2d at 304 ("It is well established that a reviewing court will not address arguments that are not adequately briefed.").

We determine if parties have adequately briefed arguments by referring to Utah Rule of Appellate Procedure 24(a)(9), which requires that "[t]he argument shall contain the contentions and reasons of the appellant with respect to the issues presented, including the grounds for reviewing any issue not preserved in the trial court, with citations to the authorities, statutes, and parts of the record relied on." Utah R. App. P. 24(a)(9); see Thomas, 1999 UT 2 at ¶12; Thomas, 961 P.2d at 305; see also Mackay, 973 P.2d at 947 ("Our rules of appellate procedure clearly set forth the requirements that appellants and appellees must meet when submitting briefs before this court.").

As our supreme court has noted: "The brief of appellant should contain the points relied upon . . . and these points should be supported by authorities. . . . If the questions involved in a case are of sufficient importance to justify asking this court to decide them, they are worthy of the careful consideration of counsel presenting them. . . . It is the duty of attorneys practicing in this court to present to the court the authorities supporting their views and to assist the court in reaching a correct conclusion." Thomas, 1999 UT 2 at ¶13 (citation omitted).

Regarding the first issue about imputation of income to Mr. Reese, Ms. Reese's argument is found in two paragraphs of her brief: the second paragraph on page sixteen and the last paragraph on page seventeen. She cites no legal authority whatsoever in those paragraphs, essentially arguing that if she is going to have income imputed to her, Mr. Reese should have income imputed to him. She does not analyze how statutory or case law may have affected the trial court's decision not to impute income to Mr. Reese.

Regarding the second issue about the lack of an alimony award, Ms. Reese's argument is found on pages twenty-one through twenty-nine of her brief. Once again she cites no legal authority at all in those pages, but simply argues the facts of the case. Significant statutory and case law exists governing the analysis of trial court alimony determinations; however, we do not have the benefit of Ms. Reese's "'careful consideration'" of that law as it applies to her particular situation. Id. (citation omitted).

Finally, regarding the third issue about the lack of an attorney fees award for Ms. Reese, Ms. Reese's argument is found on pages thirty-seven through thirty-eight of her brief. As before, she cites none of the well-settled tenets controlling the award of attorney fees in divorce cases. Without her analysis of the facts against the backdrop of relevant legal principles as to all three of the above issues, we declined to consider the merits of the issues.

We next turn our attention to Ms. Reese's argument that the trial court should have awarded her retroactive child support. We dispose of this issue on the basis of an inadequate record. Ms. Reese cursorily raised this issue in her closing argument, and the trial court did not address it in the initial findings of fact and conclusions of law and divorce decree. Ms. Reese then brought a Motion for Clarification of Findings of Fact and to Correct Clerical Error in Decree of Divorce in which she stated, "[P]laintiff moves to clarify the starting date of child support in this case, and plaintiff affirmatively alleges that child support herein should start effective with the date of the parties' separation, April 1, 1992." Meanwhile, Mr. Reese argued the child support award should begin as of the date of trial.

The trial court held a hearing on September 23, 1996 at which the parties addressed, among other things, what the start date of the child support award should be. After arguments, the trial court stated in a minute entry, "The court having considered and now being fully advised in the premises orders child support obligation to run from day of trial . . . ." However, we have no transcript of the hearing in the record to tell us what the parties' legal arguments were.

"[A] record should be made of all proceedings of courts of record." Birch v. Birch, 771 P.2d 1114, 1116 (Utah Ct. App. 1989). Ms. Reese had the burden "'to make certain that the record [she] compile[d would] adequately preserve [her] arguments for review in the event of an appeal.'" Id. (quoting Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1045 (Utah 1983)); see also Utah R. App. P. 11(e) (stating appellant's burden to request necessary transcripts for appellate record). This court may not theorize about facts not reflected in the record. SeeState v. Christofferson, 793 P.2d 944, 947 (Utah Ct. App. 1990). "'When crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court.'" Id. (citation omitted).

In the absence of the hearing transcript regarding the timing of the child support award, we must presume that the trial court's decision was supported by something that occurred or was said in that hearing. For this reason, we affirmed the trial court's ruling starting the child support award on the day of trial.

As a final matter, under the direction of the supreme court, we remanded to the trial court for supplemental findings of fact and conclusions of law regarding when Ms. Reese should satisfy Mr. Reese's lien on the Herbert Avenue home. The trial court responded on February 22, 2000 with Supplemental Findings of Fact on Remittitur, which are now part of the record.

In sum, we have set forth a more detailed rationale for four of the issues remanded to us for that purpose by the supreme court. As to the issues of imputing income to Mr. Reese and the lack of alimony and attorney fees awards to Ms. Reese, we have explained that we declined to consider the merits of those issues because Ms. Reese inadequately briefed them. Regarding Ms. Reese's argument about retroactive child support, we presumed the trial court's decision to be valid because Ms. Reese did not provide us with a transcript of the hearing at which the issue was argued. Finally, we have complied with the supreme court's directive to remand to the trial court for proper findings supporting immediate satisfaction of the lien.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge

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WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

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James Z. Davis, Judge