Clark, et al. v. Bindley

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Dennis Clark, Desmon Butts, Darren Boyd Nelson, and Michael Lee Adkins,
Petitioners and Appellees,

v.

Francine Bindley fka Clark,
Respondent and Appellant,

Richard Leon Stark,
Intervenor and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981574-CA

F I L E D
March 4, 1999
  1999 UT App 068

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Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
Francine Bindley, Salt Lake City, Appellant Pro Se
LaMar J. Winward, St. George, for Intervenor and Appellee Stark
Marlynn B. Lema, St. George, for Petitioners and Appellees
Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Greenwood, Bench, and Billings.

PER CURIAM:

Appellant Francine Bindley appeals from an order granting custody of her five daughters to the appellees, who are their biological fathers. This case is before the court on the court's own motion for summary disposition and on the appellees' motion for summary disposition.

Appellees seek dismissal of the appeal based upon lack of jurisdiction. They incorrectly assume that the August 4, 1997 memorandum decision was a final judgment and that the motion for additional findings of fact was a post-judgment motion suspending the time for appeal under Utah R. App. P. 4(b) and necessitating filing of a new notice of appeal following disposition of the motion. However, the memorandum decision was not intended by the court to be a final judgment because it specifically directed counsel for the petitioners to prepare a final order containing the ruling of the court and including a computation of child support obligations. See Swenson Assoc. Architects v. State, 889 P.2d 415, 417 (Utah 1994). Accordingly, the motion for additional findings was not a timely post-judgment motion under Rule 4(b) because it was filed prior to judgment. The order entered on September 23, 1998 incorporating the trial court's ruling and the additional findings was the final judgment. Because Rule 4(b) does not apply, the notice of appeal filed after the announcement of the decision, but before the entry of the written judgment, was timely under Utah R. App. P. 4(c).

Based upon our review of appellant's memoranda opposing the summary disposition motions, we characterize this appeal as a challenge to the sufficiency of the evidence supporting the findings of fact. However, Bindley's failure to provide a transcript of the relevant portions of the trial is fatal to her claims. Utah R. App. P. 11(e)(2) requires an appellant who "intends to urge on appeal that a finding or conclusion is unsupported by or is contrary to the evidence [to] include in the record a transcript of all evidence relevant to such finding or conclusion." A request for transcript must be filed within ten days after filing the notice of appeal. Utah R. App. P. 11(e)(1).

As a result of the failure to provide an adequate record, Bindley fails to sustain the burden to marshal the evidence supporting the challenged findings of fact and demonstrate that they are clearly erroneous. "The party seeking to overturn the trial court's findings has the burden of marshalling the evidence in support of the findings and then demonstrating that, despite such evidence, the findings are so lacking in support as to be against the clear weight of the evidence and, therefore, clearly erroneous." Crouse v. Crouse, 817 P.2d 836, 838 (Utah Ct. App. 1991). "If the appellant fails to marshal the evidence, the appellate court assumes that the record supports the findings of the trial court and proceeds to a review of the accuracy of the lower court's conclusions of law and the application of that law in the case." Saunders v. Sharp, 806 P.2d 198, 199 (Utah 1991) (per curiam).

Based upon the failure to provide an adequate record, combined with failure to marshal the evidence and demonstrate that the findings are clearly erroneous, we assume the record supports the findings. Those findings are adequate to support the trial court's decision to change custody to the biological  fathers. Bindley has not challenged any other provision of the judgment.

Accordingly, the judgment is affirmed.
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

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Judith M. Billings, Judge