Van Orden v. Van Orden

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Van Orden v. Van Orden, 990545-CA, Filed October 5, 2000 IN THE UTAH COURT OF APPEALS

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Michael L. Van Orden,
Plaintiff and Appellee,

v.

Lisa M. Van Orden,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990545-CA

F I L E D
October 5, 2000
  2000 UT App 271 -----

Third District, Salt Lake Department
The Honorable Anthony B. Quinn

Attorneys:
Alan R. Stewart, Murray, for Appellant
James H. Woodall, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

BENCH, Judge:

Appellant Lisa Van Orden (Mother) claims the trial court abused its discretion in awarding custody to Appellee Michael Van Orden (Father). In making this claim, however, Mother has failed to meet her burden to marshal the evidence. Similarly, Mother's challenge to the findings relating to visitation is deficient. We have previously instructed that [t]he party seeking to overturn the trial court's findings has the burden of marshaling the evidence in support of the findings and then demonstrating that, despite such evidence, the findings are so lacking in support as to be against the clear weight of the evidence and, therefore, clearly erroneous. Crouse v. Crouse, 817 P.2d 836, 838 (Utah Ct. App. 1991). Thus we accept the trial court's findings of fact, and review only its conclusions of law. See id.

In making custody determinations, the trial court considers "the best interests of the child and the past conduct and demonstrated moral standards of each of the parties." Utah Code Ann. § 30-3-10 (Supp. 2000). The trial court here made specific findings on the factors to be considered in determining custody and evaluated which factors favored Mother, Father, both parents, or neither parent. Within these findings are specific references to which custody decision would be in the child's best interest. Thus, the trial court's conclusions of law are adequately supported by the findings of fact.

Mother, however, alleges that the trial court's findings of fact are insufficient to support the outcome. "'[T]o ensure the court acted within its broad discretion, the facts and reasons for the court's decision must be set forth fully in appropriate findings and conclusions.'" Roberts v. Roberts, 835 P.2d 193, 195 (Utah Ct. App. 1992) (citation omitted) (alteration in original). The trial court made detailed findings in this case, discussing specifically: the desirability of keeping siblings together; how the child has fared in the temporary custody arrangement; Mother's emotional maturity and ability to be an appropriate role model for the child; the likelihood of each party allowing the non-custodial parent free access to the child; the ability to provide personal rather than surrogate care; and evidence of neglect or abuse. These findings provide an adequate basis for the trial court's award of custody to Father, and our review of the findings indicates no abuse of discretion.

Mother's final argument is that the trial court abused its discretion in reducing the amount of attorney fees awarded to her. When determining an award of attorney fees to a party, the trial court considers "the financial need of the recipient spouse; the ability of the other spouse to pay; and the reasonableness of the fees." Rehn v. Rehn, 1999 UT App 41,¶22, 974 P.2d 306. After making these determinations, the court has broad discretion to award attorney fees to the needy party in an amount which may or may not constitute the entire amount requested. See Utah Code Ann. § 30-3-3(1) (1999).

In the initial award of attorney fees to Mother, the trial court made no findings as to the ability of Father to pay fees. During the hearing on the Motion to Reconsider, the court addressed this oversight. At the conclusion of the hearing, the court found: (1) Mother's attorney fees had already been paid by a third party, her current husband; (2) Father did not have the means to pay more than $5,000 of Mother's attorney fees; and (3) the modified amount of $5,000 constituted reasonable attorney fees in light of the duration of this case. The trial court, therefore, corrected its failure to make specific findings on each of the three prongs of the analysis. In so doing, the court made clear that the modification was based primarily on Father's inability to pay more. Since "'the decision to award attorney fees and the amount of such fees are within the trial court's sound discretion,'" we find no reason to supersede the decision of the court that heard the case and was in the best position to make the determination. Bolliger v. Bolliger, 2000 UT App 33,¶26, 997 P.2d 903 (citation omitted).

We affirm the judgment of the trial court and, pursuant to Utah R. App. P. 33(a), award Father his costs and fees incurred on appeal. We remand for the limited purpose of determining Father's fees and costs reasonably incurred on appeal, and for entry of judgment therefor.
 
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

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