Williams v. Williams

----ooOoo----

David E. Williams,
Appellee,

v.

Barbara A. Williams,
Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000013-CA

F I L E D
November 8, 2001 2001 UT App 330 -----

Second District, Farmington Department
The Honorable Thomas L. Kay

Attorneys:
M. Joy Jelte, Sandy, for Appellant
Martin W. Custen, Ogden, for Appellee -----

Before Judges Jackson, Davis, and Thorne.

DAVIS, Judge:

First, Appellant Barbara Williams argues that the court failed to consider, weigh or properly apply the factors of Rule 4-903 of the Rules of Judicial Administration in issuing a split custody order for the four minor children. Appellant's argument must fail because Rule 4-903 does not direct the court to consider the factors enumerated therein; it merely directs that custody evaluations shall be performed by qualified professionals, and it directs those professionals to consider a number of factors in making a report to the court. Appellant does not argue that the evaluator failed to follow the factors contained within Rule 4-903. Moreover, even if we were to assume that Rule 4-903 does impose a substantive duty on the trial court, our review of the record convinces us that the court adequately considered all relevant factors in awarding custody as it did, and we discern no abuse of discretion on the part of the court in its custody award. See Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996) (stating trial courts have broad discretion in making custody determinations).

Appellant next argues that the court erred in its award of alimony by failing to appropriately consider some of the factors contained in Utah Code Ann. § 30-3-5(7), as amended. Appellant points specifically to section 30-3-5(7)(a)(vii), arguing that the court failed to consider the extent of her contribution to Appellee's academic advancement during the marriage. However, subsection (a)(vii) was not added to section 30-3-5(7) until May 3, 1999. See An Act Relating to Husband and Wife; Adding Conditions for the Court to Consider before Ordering Alimony, ch. 277, 1999 Utah Laws 916. Appellee filed his complaint for divorce in February 1997; thus, the 1999 amendment was inapplicable and Appellant's argument must fail. See Wilde v. Wilde, 969 P.2d 438, 442-43 (Utah Ct. App. 1998) (holding that the substantive law to be applied throughout a case is determined by date the action is initiated).

Appellant also argues the court's findings and conclusions are unsupported by the record. Appellant challenges the decision to impute gross income to her in the amount of $1850 per month, and she challenges the court's decision to limit the alimony award to ten years instead of awarding permanent alimony due to extenuating circumstances. Appellant's argument regarding the imputed income is a challenge to the credibility determinations of the trial court. The credibility of witness testimony is within the province of the trial court, and we will not second-guess its determinations. See Cooke v. Cooke, 2001 UT App 110,¶11, 22 P.3d 1249. Appellant merely reargues the evidence presented at trial in her favor, and she fails to marshal the evidence in support of the court's determination on these two issues; thus, we presume that the record supports the court's findings. See Moon v. Moon, 1999 UT App 12,¶24, 973 P.2d 431.

Appellant next argues that Appellee's bonuses should have been included as income when determining Appellee's income for purposes of alimony and child support. However, the court did consider the bonuses that Appellee received from his employment. The court assigned the bonuses an average value based on the fact that Appellee had been employed with his new company less than a year at the time of trial and bonuses were discretionary. This argument is therefore without merit. See Griffith v. Griffith, 1999 UT 78,¶19, 985 P.2d 255.

Appellant's remaining arguments are also without merit. The court did take Appellee's retirement accounts into consideration when it equitably divided the marital property, and Appellant waived her claim for attorney fees when she failed to present any evidence to the trial court that would have justified such an award.

Finally, we address Appellee's request for attorney fees and costs for this appeal, which he raised in his brief pursuant to Rule 33 of the Utah Rules of Appellate Procedure. Although we affirm the trial court's ruling, we disagree with Appellee's contention that this appeal is so frivolous that he is entitled to an award of attorney fees; thus, each party will bear its own attorney fees and costs for this appeal.

Affirmed.
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge