Debry v. Debry

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Debry v. Debry. Filed June 17, 1999 IN THE UTAH COURT OF APPEALS

Janice Debry,
Plaintiff, Appellant, and


Robert J. Debry,
Defendant, Appellee, and

(Not For Official Publication)

Case No. 971410-CA

June 17, 1999
  1999 UT App 191 -----

Third District, Salt Lake Department
The Honorable Homer F. Wilkinson

Tineke Van Dijk, Salt Lake City, for Appellant
Donald B. Holbrook and Lewis M. Francis, Salt Lake City, for Appellee


Before Judges Bench, Davis, and Orme.

DAVIS, Judge:

Plaintiff raises a host of issues on appeal.

First, plaintiff argues that "the trial court erred in refusing to unseal the files of the parties' prior divorce proceedings, while permitting [defendant] to impeach plaintiff based on testimony contained within the sealed files." Under Utah law, plaintiff had full access to the entire record of her prior divorce proceedings. See Utah Code Ann. § 30-3-4(2) (Supp. 1998). As to impeachment, plaintiff cannot put her financial status directly at issue and then claim a confidentiality privilege to shield herself from cross-examination on that issue. Thus, the trial court did not err by failing to unseal the prior divorce files, while at the same time permitting impeachment based on items therein.

Second, plaintiff argues that the trial court erred by permitting an attorney to testify at trial although plaintiff had not waived her attorney-client privilege. However, the mere relationship between an attorney and client does not raise a presumption of confidentiality. See Anderson v. Thomas, 108 Utah 252, 159 P.2d 142, 147 (1945). In any event, even if there had been a breach of confidentiality and violation of the attorney-client relationship, plaintiff has failed to show how she was prejudiced by the attorney's alleged breach.

Third, plaintiff asserts that the trial court abused its discretion by permitting defendant to testify concerning matters in which he or a member of his firm represented plaintiff in legal matters. On appeal, however, plaintiff not only fails to show how she was prejudiced, she neglects to offer any record evidence of her assertion, other than to state that "the court permitted [defendant] to testify concerning matters which were subject to the attorney client privilege which had not been waived by [plaintiff]." Without a proper foundation from which to determine whether the testimony was part of a privileged communication, we will not overturn the trial court's ruling.

Fourth, plaintiff claims that the trial court erred in declining to make specific alimony award findings as to plaintiff's financial needs, her ability to meet her needs, and defendant's ability to pay alimony. See Rudman v. Rudman, 812 P.2d 73, 76 (Utah Ct. App. 1991). The record clearly indicates that the trial court considered the three factors set forth above in its Findings of Fact and Conclusions of Law dated August 13, 1996. "So long as these three factors are considered, we will disturb a trial court's decision concerning alimony only upon a showing 'that such a serious inequity has resulted as to manifest a clear abuse of discretion.'" Id. (citation omitted). Such a showing has not been made in this case.

Fifth, plaintiff asserts that the trial court erred in determining the amount of alimony to which she was entitled. Not only did plaintiff fail to marshal the evidence, see Baker v. Baker, 866 P.2d 540, 543 (Utah Ct. App. 1993), but the record supports most, if not all, of the trial court's adjustment to plaintiff's "needs," and the amount awarded shows no inequity.

Plaintiff argues that the trial court should have considered the standard of living enjoyed by the parties during the course of their marriage when making its decision. However, Utah law provides that "[i]n marriages of short duration, when no children have been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage." Utah Code Ann. § 30-3-5(7)(c) (1998). Based on the brevity of the parties' marriage, the trial court did not abuse its discretion with regard to the alimony it awarded plaintiff.

Sixth, plaintiff argues that the trial court erred in limiting the duration of alimony. The ability of the court to limit the duration of alimony is supported both by common law, see McDonald v. McDonald, 120 Utah 573, 236 P.2d 1066, 1070 (1951); Rappleye v. Rappleye, 855 P.2d 260, 264 (Utah Ct. App. 1993), and statute. Section 30-3-5(7)(c) of the Utah Code became effective May 1, 1995, months before the case before us went to trial, the time at which the rights and responsibilities in dissolution of a marriage are ordinarily determined.

Seventh, plaintiff argues that the trial court erred in restricting plaintiff's access to the alimony award. In his brief, defendant concedes this point by not arguing the issue and stipulating to the removal of the restriction if the alimony award is affirmed. Accordingly, the alimony payments should be made directly to plaintiff and the trial court should not restrict her access thereto.

Eighth, plaintiff claims that the trial court erred when it found that she had dissipated assets during the marriage. Instead of marshaling the evidence in support of the trial court's findings she has simply argued those facts that support her side of the argument. We therefore assume that the trial court had ample evidence to support its findings. See Utah Med. Prod., Inc. v. Searcy, 958 P.2d 228, 233 (Utah 1998). Notwithstanding, the evidence adduced at trial supports the findings of dissipation of assets.

Ninth, plaintiff asserts that "the trial court abused its discretion in the manner and amount of property it awarded." Here, plaintiff has again failed to marshal the evidence and has merely reargued the evidence supporting her position. Even if she had properly marshaled the evidence, none of the factors justifying reversal of the trial court's property distribution exist, see Schaumberg v. Schaumberg, 875 P.2d 598, 602 (Utah Ct. App. 1994); therefore we affirm the trial court's ruling in this regard.

Tenth, plaintiff argues that "the trial court abused its discretion in the amount of attorney fees it awarded in this matter." There is ample evidence in the record with regard to plaintiff's need, defendant's ability to pay, and the reasonableness of the fees to support the trial court's award of attorney fees. The court also found that it is "fair, just and equitable that the defendant should pay to the plaintiff 1/3 of plaintiff's attorney's fees or $50,000.00 and that he has previously paid to plaintiff's counsel $25,000.00."

Lastly, plaintiff claims that she "is entitled to costs and attorney fees incurred in bringing this appeal." Because plaintiff did not prevail on any of the contested issues, we decline her request for attorney fees on appeal. See Childs v. Childs, 967 P.2d 942, 947 (Utah Ct. App. 1998), cert. denied, 1999 Utah LEXIS 64 (Utah Feb. 17, 1999).

Defendant has cross-appealed, stating "[i]f this court affirms the property distribution and the amount of alimony awarded, there are only three issues remaining on [the] cross-appeal." Because this court affirms the property distribution and alimony award amount, we only need to reach defendant's cross-appeal with regard to three issues.

Defendant argues that "[t]he trial court erred by awarding alimony for longer than the marriage." Defendant asserts the trial court erroneously found that the couple had been married for six years when in fact they had been married for less than five. He claims that this ruling was based on its "erroneous finding that the parties had a one-year common-law marriage preceding their legal marriage." For a marriage to be valid without having been solemnized, the parties must show, among other things, "cohabitation, assumption of marital rights and duties, a general reputation as husband and wife, [and] capacity to marry." Whyte v. Blair, 885 P.2d 791, 794 (Utah 1994); accord Utah Code Ann § 30-1-4.5 (1998). Although plaintiff and defendant did cohabit for one year prior to the marriage, neither the record nor plaintiff's brief provide support for the proposition that the couple assumed marital rights, duties, and obligations, or held themselves out as husband and wife. In fact, at the time the couple was cohabiting, neither party had finalized their divorce from their prior spouse. Consequently, the trial court erred as a matter of law in finding that defendant and plaintiff had a common law marriage for one year before they were actually married.

"Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time." Utah Code Ann. § 30-3-5(7)(h) (Supp. 1998). We therefore amend the duration of alimony from six years to five years, the actual length of the parties' marriage. See Olson v. Olson, 704 P.2d 564, 567 (Utah 1985).

Defendant next argues that the "trial court erred in failing to impose any consequences for [plaintiff's] dissipation of marital assets" and that its findings in that regard were insufficient. Even if plaintiff received more marital assets than defendant, after charging her share with the "dissipated assets," we cannot say that the court's determination and allocation of marital assets are an abuse of discretion.

Lastly, defendant asserts that the trial court "erred by refusing to hear [his] contempt motion and by failing to give any effect to [plaintiff's] contempt." While the trial court erroneously stated that interim orders cannot be the basis for a finding of contempt, see Sinclair v. Sinclair, 718 P.2d 396 (Utah 1986), it correctly suggested that the subject matter of the contempt was disposed of in the final divorce decree. Thus, the decision to forego further contempt proceedings was not "so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion." Marsh v. Marsh, 973 P.2d 988, 990 (Utah Ct. App. 1999).

In conclusion, we amend the portion of the trial court's ruling by removing the restriction imposed on plaintiff's access to the alimony funds and directing that the alimony be paid directly to her. In addition, the duration of the alimony award is amended from six years to five years. We affirm the trial court's rulings in all other respects.

James Z. Davis, Judge



Russell W. Bench, Judge



Gregory K. Orme, Judge