Miller v. Miller

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Tracy L. Miller,
Plaintiff and Appellant,

v.

Larry T. Miller,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000313-CA

F I L E D
May 10, 2001 2001 UT App 136 -----

Third District, Salt Lake Department
The Honorable David S. Young

Attorneys:
W. Kevin Jackson, Salt Lake City, for Appellant
James H. Woodall and Suzanne Marelius, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

ORME, Judge:

As clarified at oral argument, appellant does not challenge the propriety of the trial court's legal conclusions and decree given the findings of fact it made. Rather, she challenges the findings themselves as being clearly erroneous given the evidence of record. The difficulty with this position is that while appellant highlights in some detail the evidence which is inconsistent with or undercuts the findings, she wholly fails to marshal the evidence that supports the findings, which is the mandatory first step to mounting a successful challenge on appeal to a trial court's findings of fact. As we have previously explained, appellant must begin by undertaking the arduous and painstaking marshaling process . . . . After marshaling the evidence supporting the trial court's findings, [appellant] must then show that these same findings are "so lacking in support as to be 'against the clear weight of the evidence,' thus making them clearly erroneous." Mountain States Broadcasting v. Neale, 783 P.2d 551, 553 (Utah Ct. App. 1989) (citations omitted). . . .

We do not take issue with [appellant's] claim that [her] brief contains "extensive quotations from the record." However, the marshaling concept does not reflect a desire to merely have pertinent excerpts from the record readily available to a reviewing court. The marshaling process is not unlike becoming the devil's advocate. Counsel must extricate himself or herself from the client's shoes and fully assume the adversary's position. In order to properly discharge the duty of marshaling the evidence, the challenger must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists. After constructing this magnificent array of supporting evidence, the challenger must ferret out a fatal flaw in the evidence. The gravity of this flaw must be sufficient to convince the appellate court that the court's finding resting upon the evidence is clearly erroneous.

"Appellants often overlook or disregard this heavy burden." Id.

West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991) (emphasis in original). As we observed in West Valley, "[w]e have shown no reluctance to affirm when the appellant fails to adequately marshal the evidence." 818 P.2d at 1313.

Insofar as appellant's challenge to the court's contempt rulings is focused on the court's findings, appellant again fails to marshal the evidence in support of the findings, the prerequisite to showing such evidence is legally insufficient to support the findings. Moreover, in the context of the long and tortured history of this case, we see no reversible error in the procedure employed by the trial court in resolving the alleged contempt or in the sanctions imposed. In particular, we believe the obligations under the decree that appellant was found not to have performed were sufficiently clear, especially in context, that appellant must have known what was expected of her.

Appellee was not awarded attorney fees below and thus cannot be awarded fees on appeal in accordance with the line of cases typified by Rosendahl v. Rosendahl, 876 P.2d 870, 875 (Utah Ct. App. 1994), cert. denied, 883 P.2d 1359 (Utah 1994), and Moore v. Moore, 872 P.2d 1054, 1056 (Utah Ct. App. 1994). While unavailing, appellant's appeal was not frivolous, and thus attorney fees cannot be awarded pursuant to Utah R. App. P. 33. Accordingly, each side shall bear their own attorney fees incurred on appeal.

Affirmed.
 
 

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Gregory K. Orme, Judge -----

WE CONCUR:
 
 

______________________________
Judith M. Billings, Judge
 
 

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William A. Thorne, Jr., Judge