IN THE UTAH COURT OF APPEALS ----ooOoo---Alice M. Romero, Petitioner and Appellee, v. Manuel Romero, Respondent and Appellant. ) ) ) ) ) ) ) ) ) ----Third District, West Jordan Department, 074400280 The Honorable Terry L. Christiansen Attorneys: Patricia L. LaTulippe, Salt Lake City, for Appellant Richard S. Nemelka, Salt Lake City, for Appellee ----Before Judges Davis, McHugh, and Roth. DAVIS, Presiding Judge: Manuel Romero (Husband) appeals from the district court's Decree of Divorce, which divided property between him and Alice M. Romero (Wife). Husband argues that the trial court erred in failing to include the amount of a second mortgage in its findings underlying the property division. We affirm. The trial court found, "The testimony as to the debt on the condo or [Husband]'s home indicated it was about $76,000." Husband claims that this amount is the balance of only the first mortgage on the property and does not include the approximately $23,000 second mortgage. Thus, Husband argues that it was error for the trial court to fail to identify and value the second mortgage and that we should remand for the trial court to supplement its findings. However, it is clear from the dialogue between Husband's counsel and the trial court that the trial court was aware of the second mortgage on the property yet found that the $76,000 was the total debt on the property--both mortgages included. Thus, because the trial court did identify the second mortgage and attach a value to it, we treat Husband's argument as simply challenging the trial court's finding that the debt totaled $76,000 as not being supported by the evidence. "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard MEMORANDUM DECISION (Not For Official Publication) Case No. 20090335-CA FILED (July 1, 2010) 2010 UT App 175
shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Utah R. Civ. P. 52(a). "Findings of fact are clearly erroneous if it can be shown that they are against the clear weight of evidence or that they induce a definite and firm conviction that a mistake has been made." Maughan v. Maughan, 770 P.2d 156, 159 (Utah Ct. App. 1989). In making its finding, the trial court relied on Husband's testimony at trial where he stated, "Oh, the balance on the condo right now is approximately $76,000." It is true that, as Husband points out, shortly after that assessment he stated that he took out a second mortgage of $23,500 on the property in 2003. But there is simply no indication that the current balance of the second mortgage was not included in Husband's original statement of the balance owing on the property. Nor is there any indication as to what the amount remaining on the second mortgage was at the relevant time period several years thereafter because the only testimony Husband provided as to the amount of that mortgage was its initial amount in 2003.1 Thus, it appears that the only information before the court as to the current debt on the property was Husband's statement that the debt balance was approximately $76,000. Indeed, the trial court explained this when Husband's counsel challenged the court's oral finding at the close of trial: [HUSBAND'S COUNSEL]: I believe the testimony on the mortgage on the condo was that there was a first mortgage for $83,000 and a second mortgage for $22,000. And so the number of $73,000 on the mortgage, I believe that's--or $76,000 debt on the condo, I believe that's just on the first mortgage. .... THE COURT: He testified that there was [a] $76,000 balance on the condo, and the value was $121,000. .... [HUSBAND'S COUNSEL]: But I think there was a clarification right after that, Your Honor, that it was--that's what he thinks the value on the first mortgage was, but he testified that the month after he bought the condo in November, 2003, he took out another mortgage on the property for approximately-Likewise, when testifying specifically about the first mortgage, Husband gave only the initial amount of the mortgage and the amount owing when the parties were married seven months later.
1
20090335-CA
2
THE COURT: Yeah, but I'm not looking at the 2003 value. I'm looking at the 2007 value, and his testimony was that there was $76,000 owing on the condominium, and he estimated the value at a $121,000. Considering the scant information before the trial court concerning the current amounts of the mortgages2 and Husband's unqualified statement setting the balance due on the property at $76,000, we cannot say that the trial court abused its discretion by adopting this amount as the total debt on the property. Affirmed.
______________________________ James Z. Davis, Presiding Judge ----WE CONCUR:
______________________________ Carolyn B. McHugh, Associate Presiding Judge
______________________________ Stephen L. Roth, Judge
Husband also points to his financial declaration to show the existence and balances of both mortgages. However, this declaration was filed over a year before trial and would not necessarily conflict with Husband's testimony as to the amount currently due at the time of trial. And interestingly, the declaration lists the amount of the first mortgage as $74,400, which is less than the amount he now claims represented only the first mortgage balance.
2
20090335-CA
3
