Connor v. Cook

MEMORANDUM DECISION
(Not For Official Publication)

Deborah Lynne Connor,
Plaintiff and Appellant,

v.

Mark Steven Cook,
Defendant and Appellee.

Case No. 971132-CA

F I L E D
October 29, 1998
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Third District, Salt Lake Department
The Honorable Frank G. Noel

Attorneys:
Deborah Lynne Connor, Salt Lake City, Appellant Pro Se

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Before Judges Davis, Bench, and Billings.

PER CURIAM:

Appellant Deborah Lynne Connor appeals from an order denying her petition to modify a divorce decree to change custody and visitation. We affirm.

The issues before the trial court were limited to those pertaining to the petition to modify child custody and related issues pertaining to visitation. In order to modify child custody, courts must engage in a two-step bifurcated analysis. See, e.g., Fullmer v. Fullmer, 761 P.2d 942, 946 (Utah Ct. App. 1988). "First, the court must consider if there has been a substantial change in the custodial parent's circumstances justifying a re-examination of the prior custody award. Second, and only if that finding is in the affirmative, may the trial court examine what placement is in the best interest of the child." Id. The trial court found that no substantial change of circumstances had been established by the evidence presented in support of the petition and, more specifically, there was no evidence that appellee Mark Cook "has committed any acts of violence toward his current wife or toward the minor child, Ryan," or that "any emotional or verbal abuse has been directed to the child by" Cook. The trial court further found there was "no evidence linking Ryan's emotional problems to any abuse or other wrongful conduct on the part of" Cook. Finally, the trial court found the child was doing well in Cook's custody. Contrary to Connor's assertion on appeal, there was no finding as to visitation interference made in connection with the petition. Having determined that there was no evidence of a substantial change of circumstances justifying a re-examination of the custody award, the trial court's inquiry was complete. Connor challenges the sufficiency of the evidence supporting the findings of fact.

"To successfully challenge a trial court's findings of fact on appeal, an appellant must marshal the evidence in support of the findings of fact 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." Valcarce v. Fitzgerald, 961 P.2d 305, 312 (Utah 1998) (quoting In re Estate of Bartell, 776 P.2d 885, 886 (Utah 1989)). Connor has failed to marshal the evidence, and her challenge to the findings of fact must fail. In addition, Connor has not satisfied appellant's burden to brief the appeal in a manner consistent with the appellate rules by providing "adequate legal analysis and legal authority in support of her claims." Burns v. Summerhays, 927 P.2d 197, 200 (Utah Ct. App. 1996). "It is well established that an appellate court will decline to consider an argument that a party has failed to adequately brief." Valcarce, 961 P.2d at 313.

Connor also claims the trial court erred in excluding the testimony of Dr. Elizabeth Stewart and Dr. Mark Rindflesh. The record reflects that Dr. Stewart did a custody evaluation of Mark Cook and Deborah Connor during the marriage in connection with an attempt to obtain custody of Cook's daughter by a prior marriage. The custody evaluation was performed two years prior to the birth of Ryan Cook and had no relationship to the present proceedings. Similarly, Connor has not demonstrated that Dr. Rindflesh was in any way involved in these custody proceedings. Finally, she demonstrated no basis for the argument that tapes of the child recorded by her were improperly excluded. We find no error in the trial court's decision not to admit this evidence. Connor presented sixteen witnesses, including expert testimony, during a four-day trial. The trial court made a sufficient record of the circumstances under which the proceedings were terminated. Connor's claims that she was deprived of an opportunity to present her case are wholly without merit.

Connor's final claim is that the trial court was biased and prejudiced. She raised this claim in the trial court by an affidavit filed after the entry of the trial court's decision and apparently in response thereto. In accordance with Utah R. Civ. P. 63, the trial judge referred the affidavit to the Presiding Judge of the Third District Court and took no further action in the case. There is no basis to set aside the judgment based upon the affidavit filed after the fact.

Connor makes numerous claims that are not relevant to the narrow issue determined by the trial court in the judgment being appealed, that is, whether there has been a change of circumstances since entry of the Montana decree that justifies a re-examination of the custody award and an award of custody to Connor. Having concluded that the trial court's determination of that issue should be affirmed, we do not reach Connor's remaining arguments. Accordingly, we affirm the order denying the petition to modify.
 
 

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James Z. Davis, Presiding Judge
 
 

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Russell W. Bench, Judge
 
 

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Judith M. Billings, Judge