Dibble v. Dibble

IN THE UTAH COURT OF APPEALS

----ooOoo----

Janae S. Dibble,
Petitioner and Appellant,

v.

Carlos M. Dibble,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010720-CA
 

F I L E D
(July 3, 2003)
 

2003 UT App 230

-----

First District, Brigham City Department

The Honorable Ben H. Hadfield

Attorneys: William Gregory Burdett, Ogden, for Appellant

Clark W. Sessions and T. Mickell Jimenez, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Orme, and Thorne.

GREENWOOD, Judge:

Janae Dibble (Wife) appeals the trial court's determination that she was cohabitating. The trial court terminated alimony payments from the date it found cohabitation, pursuant to Utah Code Ann. § 30-3-5(9) (Supp. 2002), and awarded Carlos Dibble (Husband) a judgment of $67,854 for alimony paid after cohabitation had occurred. We affirm.

On appeal, Wife fails to meet her burden to marshal the evidence. "When challenging a trial court's findings, '[a]n appellant must marshal the evidence in support of the findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be "against the clear weight of the evidence," thus making them "clearly erroneous."'" Shinkoskey v. Shinkoskey, 2001 UT App 44,¶10 n.5, 19 P.3d 1005 (alteration in original) (citations omitted); see also Sigg v. Sigg, 905 P.2d 908, 913 n.7 (Utah Ct. App. 1995) ("[A] party challenging a trial court's factual finding must do more than merely reargue the evidence supporting his or her position; rather, the party is required to first marshal the evidence in support of the finding.").

Despite extensive factual findings by the trial court, Wife does not marshal the evidence as required. Rather, she reargues her position, adding nothing to demonstrate that "the trial court's findings are so lacking in support as to be against the clear weight of the evidence." Shinkoskey, 2001 UT App 44 at ¶10 n.5 (quotations and citations omitted). For instance, Wife focuses on her testimony that she did not intend to reside or live with Mitchell Adams (Adams), that she "had no choice but to temporarily stay" with him because no other house was available, and that she did not share expenses with him. However, she fails to discuss evidence that during the time in question she did not maintain a separate residence, she and her children had keys to Adams's house and came and went as they pleased, and her children were enrolled in school listing Adams's address as their residence.(1)

Because Wife failed "to marshal the evidence supporting the trial court's findings and then show that the findings are unsupported, we affirm the trial court's [order]." Moon v. Moon, 1999 UT App 12,¶24, 973 P.2d 431.

______________________________

Pamela T. Greenwood, Judge

-----

WE CONCUR:

______________________________

Gregory K. Orme, Judge

______________________________

William A. Thorne Jr., Judge

1. We acknowledge Wife's testimony was inconsistent with much of the findings. However, "[t]he trial court is uniquely situated to judge matters bearing on the weight and credibility that should be given to evidence, and we will not overturn the court's ruling in this regard unless it is clearly erroneous." Kessimakis v. Kessimakis, 1999 UT App 130,¶16, 977 P.2d 1226; see also Utah R. Civ. P. 52(a).