Gill v. Ferreri

Gill v. Ferreri

IN THE UTAH COURT OF APPEALS

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Billie R. Gill,

Petitioner and Appellee,

v.

Joseph E. Ferreri,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030249-CA
 

F I L E D
(July 15, 2004)
 

2004 UT App 247

 

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Sixth District, Manti Department

The Honorable K.L. McIff

Attorneys: Mary Cline, Salt Lake City, for Appellant

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Before Judges Billings, Davis, and Jackson.

DAVIS, Judge:

Joseph E. Ferreri argues that the trial court's findings of fact were insufficient to support the trial court's grant of a protective order against him. Pursuant to statute, a trial court may issue a protective order "[i]f it appears . . . that domestic violence or abuse has occurred." Utah Code Ann. § 30-6-4.2(1)(b) (1998). Although Ferreri is correct when he asserts that the trial court did not enter written findings of fact to accompany the protective order, it did make the following oral findings of fact in its ruling from the bench at the conclusion of the hearing: (1) the trial court was "satisfied" that incidents had occurred between Ferreri and Billie R. Gill "where frustration has been acted upon"; (2) Gill had "an obvious injury"; and (3) Ferreri and Gill presented "diametrically opposed testimony" concerning the incident in question. In addition, when the trial court denied Ferreri's motion for a new trial, which was based upon the trial court's alleged failure to make a specific finding of abuse, it entered a written order containing the following findings of fact: (1) Ferreri and Gill presented "competing versions" of the incident in question and "[Gill]'s version was credible"; (2) "abuse had occurred"; and (3) "there was a substantial likelihood that abuse would occur again." Because these findings satisfy the standard set forth in section 30-6-4.2(1)(b), they were sufficient to support the trial court's grant of the protective order.

Ferreri also argues that the evidence presented at the hearing was insufficient to support the trial court's grant of the protective order. In determining sufficiency of the evidence,

we review the trial court's findings of fact for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made. To succeed in its challenge to findings of fact, [an appellant] may not simply reargue [his] position based on selective excerpts of evidence presented to the trial court. Instead, [the 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.

ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. App. 1997) (quotations and citations omitted).

Ferreri does not challenge the trial court's findings that it heard "competing versions" of the incident in question and that Ferreri and Gill presented "diametrically opposed testimony" concerning this incident. Rather, Ferreri admits in his brief that his testimony conflicted with Gill's testimony and that it "came down, essentially, to a he-said/she-said argument." Ferreri also does not challenge the trial court's finding that Gill's testimony "was credible" and admits in his brief that "[c]redibility was an issue in the protective order trial."

Rather than demonstrating how Gill's testimony was "legally insufficient to support the finding[s]," id. (quotations and citations omitted), Ferreri asserts that "[o]ther evidence weighed against the court's decision" and reargues the evidence supporting his position. This "is nothing but an attempt to have this [c]ourt substitute its judgment for that of the trial court on a contested factual issue. This we cannot do under Utah Rule of Civil Procedure 52(a)." Covey v. Covey, 2003 UT App 380,¶28, 80 P.3d 553 (alteration in original) (quotations and citation omitted), cert. denied, 90 P.3d 1041 (Utah 2004); see ProMax Dev. Corp., 943 P.2d at 255 ("To succeed in its challenge to findings of fact, [an appellant] may not simply reargue [his] position based on selective excerpts of evidence presented to the trial court."). Ferreri also asserts that it was somehow improper for the trial court to base its findings solely upon Gill's testimony, even though it found that Gill's testimony "was credible." This assertion is without merit.

Trial courts are accorded wide latitude in determining factual matters. They are in the best position to assess the credibility of the witnesses and to gain a sense of the proceeding as a whole. Where contradictory testimony is offered . . . , [t]he fact finder is free to weigh the conflicting evidence presented and to draw its own conclusions.

Valcarce v. Fitzgerald, 961 P.2d 305, 314 (Utah 1998) (second alteration in original) (quotations and citations omitted).

Ferreri has failed to demonstrate that the trial court's findings of fact are "against the clear weight of the evidence," or that the evidence was "legally insufficient to support the finding[s]." ProMax Dev. Corp., 943 P.2d at 255 (quotations and citations omitted). In addition, evidence in the record, including Gill's testimony, supports the trial court's findings. Therefore, Ferreri's insufficiency of the evidence claim fails.

Affirmed.

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James Z. Davis, Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge