Menz v. Menz

Menz v. Menz

IN THE UTAH COURT OF APPEALS

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Gail Patricia Menz,
Petitioner, Appellant, and Cross-appellee,

v.

William Jeffrey Menz,
Respondent, Appellee, and Cross-appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010567-CA
 

F I L E D
(June 12, 2003)
 

2003 UT App 196

 

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Third District, Salt Lake Department

The Honorable Leon A. Dever

Attorneys: Suzanne West, Idaho Falls, Idaho, for Appellant

Gregory B. Wall, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Greenwood.

JACKSON, Presiding Judge:

Appellant Gail Menz (Wife) and Cross-Appellant William Menz (Husband) each appeal the trial court's property division. We affirm.

WIFE'S CHALLENGE

Wife challenges the trial court's finding that the excess $76,781 in the Fidelity investment account constituted Husband's separate property, earned as growth on the underlying stock owned separately by Husband. "We review the trial court's factual findings for clear error." Timm v. Dewsnup, 921 P.2d 1381, 1391 (Utah 1996). "To mount a successful attack upon . . . findings of fact, an appellant must first marshal all the evidence in support of the finding and then demonstrate that the evidence is legally insufficient to support the finding even when viewing it in a light most favorable to the court below." Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT 94,¶21, 54 P.3d 1177.

Wife did not marshal the evidence in support of the finding that the $76,781 amounted to growth of Husband's separately-owned stock. Thus, Wife's evidentiary challenge automatically fails. See Harding v. Bell, 2002 UT 108,¶22, 57 P.3d 1093.

Moreover, contrary to the trial court's statement that no evidence indicated the original source of the $76,781,(1) Husband in fact testified that the money constituted growth on his separately-owned stock. This testimony is competent evidence, particularly where neither Husband nor Wife gave any other suggestion or evidence of the money's origin. "With that [evidence] in mind, we cannot say the trial court's finding on this matter was clearly erroneous." Lefavi v. Bertoch, 2000 UT App 5,¶20, 994 P.2d 817. Thus, we affirm the trial court's award of the $76,781 to Husband as his separate property.

HUSBAND'S CHALLENGES

Husband challenges Judge Dever's entry of a property division that was substantially different from the decree Judge Thorne originally intended to enter. However, Judge Dever consulted with Judge Thorne regarding the discrepancy between the two decrees and concluded that Judge Thorne had signed the original proposed decree under the mistaken assumption that there were no outstanding objections by Wife. Judge Dever further concluded that both parties and Judge Dever were unaware of the existence of Judge Thorne's signed decree at the time Judge Dever entered his decree. Judge Dever ruled that the decree he signed "is the Decree of Divorce in this case. [Judge Thorne's decree is] set aside."

Husband offers us no authority to suggest that such a solution to this problem was improper, and his cross-appeal thus permits no opportunity for meaningful appellate review. See Snow Flower Homeowners Ass'n v. Snow Flower, Ltd., 2001 UT App 207,¶14, 31 P.3d 576 (stating where a party "has failed to provide adequate legal analysis and legal authority in support of [its] claims, [the party's] assertions do not permit appellate review" (first alteration in original) (quotations and citation omitted)). Husband's entire legal analysis consists of the statement that he is "unable to find any [authorities] that fit this rather unique situation" and permit a substitute judge to enter a decree after another judge sat at trial. Husband apparently did not find Utah Rule of Civil Procedure 63(a), which provides:

If the judge to whom an action has been assigned is unable to perform the duties required of the court under these rules, then any other judge of that district or any judge assigned pursuant to Judicial Council rule is authorized to perform those duties. The judge to whom the case is assigned may in the exercise of discretion rehear the evidence or some part of it.[(2)]

Id. (emphasis added). Thus, Judge Dever had jurisdiction to enter a decree pursuant to rule 63, and Husband's challenge fails.

Husband further challenges Judge Dever's subsequent modification of his initial property division pursuant to motion. Again, Husband's entire legal argument consists of the statement that "[t]here is nothing in the rules that we are able to locate that gives a party two shots at amending findings and/or a decree." This is an inadequate argument, and we could dismiss Husband's challenge on that basis alone. See Snow Flower Homeowners Ass'n, 2001 UT App 207 at ¶14. However, Husband's challenge also fails on the merits.

Husband offers us no basis on which to conclude the trial court abused its discretion other than to argue that Judge Dever could not alter what Judge Thorne did. First, as we have already determined, Judge Dever's ruling was the final decree, not Judge Thorne's. Thus, Judge Dever's modification of his own decree did not give Wife "two shots at amending" the decree. Second, rule 59(e) of the Utah Rules of Civil Procedure clearly permits the trial court to alter or amend its own decrees. See Utah R. Civ. P. 59(e). Third, the decision to amend or alter a decree is a matter well within the sound discretion of the trial court. See Gillmore v. Wright, 850 P.2d 431, 434 (Utah 1993). We cannot say
that Judge Dever's amendment of his original decree constituted abuse of discretion.

Affirmed.

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Norman H. Jackson,

Presiding Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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Pamela T. Greenwood, Judge

1. We assume the trial court meant no documentary evidence traced the money.

2. Husband's argument in his reply brief that Judge Thorne was not unavailable to perform his duties has no merit. Judge Thorne's resignation constituted "other disability" within the contemplation of Utah Rule of Civil Procedure 63(a). See State v. Kelsey, 532 P.2d 1001, 1006 (Utah 1975).