Fry v. Fry

IN THE UTAH COURT OF APPEALS

----ooOoo----

Edwina Fry,

Petitioner and Appellant,

v.

W. Darryl Fry,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020111-CA
 

F I L E D
(March 18, 2004)
 

2004 UT App 68

-----

Fourth District, Provo Department

The Honorable Claudia Laycock

Attorneys: Patricia A. O'Rorke and Roger D. Sandack, Salt Lake City, for Appellant

Edward K. White III, The Woodlands, Texas, and Scott C. Walker, Provo, for Appellee

-----

Before Judges Jackson, Orme, and Thorne.

JACKSON, Judge:

Edwina Fry (Wife) challenges the district court's determination regarding the value of the marital estate. Specifically, Wife urges us to reverse the district court's method of valuing the marital business. In fashioning an equitable property distribution, the judge has broad discretion.

"We afford the trial court 'considerable latitude in adjusting financial and property interests, and its actions are entitled to a presumption of validity.' Accordingly, changes will be made in a trial court's property division determination in a divorce action 'only if there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderated against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion.'"

Davis v. Davis, 2003 UT App 282,¶8, 76 P.3d 716 (quoting Bradford v. Bradford, 1999 UT App 373,¶25, 993 P.2d 887) (other citations omitted).

Both parties offered drastically conflicting evidence of the value of the business, differing by millions of dollars. However, the district court determined the testimony of all expert witnesses was unconvincing, incredible, and unhelpful. Instead, the district court made its own valuation, based on the evidence both parties presented, without reliance solely on expert testimony. See Argyle v. Argyle, 688 P.2d 468, 470 (Utah 1984) (stating "the 'determination of the value of the assets is a matter for the trial court which will not be reviewed in the absence of a clear abuse of discretion'" (citation omitted)); Cooke v. Cooke, 2001 UT App 110,¶11, 22 P.3d 1249 ("'[I]t is the province of the trier of fact to assess the credibility of witnesses, and we will not second guess the trial court where there is a reasonable basis to support its findings.'" (Quoting Reed v. Reed, 806 P.2d 1182, 1184 (Utah 1991).)); Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct. App. 1993) ("There is no fixed formula upon which to determine a division of assets in a divorce action.").

Neither party offered a discussion of the proper bounds of the district court's discretion in assigning a value to the business, nor did either party argue that the value finally determined by the district court was outside that range of discretion. Further, upon a review of the record, we conclude "'there is a reasonable basis to support [the] findings.'" Cooke, 2001 UT App 110 at ¶11 (citation omitted). Accordingly, we cannot say the district court abused its discretion. The judgment, insofar as appealed by Wife, is affirmed.

W. Darryl Fry (Husband) cross-appealed, challenging the property distribution. However, at oral argument, Husband stipulated that his appeal was conditional and would be waived if we do not grant Wife any relief on her appeal. Accordingly, Husband's appeal is dismissed.(1)

______________________________

Norman H. Jackson, Judge

-----

WE CONCUR:

______________________________

Gregory K. Orme, Judge

______________________________

William A. Thorne Jr., Judge

1. In view of our dispositions above, we do not reach Husband's Suggestion of Mootness.