Dutcher v. Dutcher

Kathleen N. Dutcher,
Plaintiff and Appellee,

v.

Steven W. Dutcher,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990675-CA

F I L E D
(December 23, 1999)
  1999 UT App 383 -----

Third District, Salt Lake Department
The Honorable Timothy R. Hanson

Attorneys:
Steven W. Dutcher, Salt Lake City, Appellant Pro Se
Lori Clayton Huber, Salt Lake City, for Appellee

-----

Before Judges Bench, Orme, and Greenwood.

PER CURIAM:

The divorce decree was entered following a bench trial. Steven certified that no transcript would be provided on appeal. Rule 11(e)(2) of the Utah Rules of Appellate Procedure requires an appellant urging "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 a finding or conclusion." In the absence of a transcript, this court cannot determine whether the findings were based upon sufficient evidence and will presume the correctness of the findings made by the trial court. See Horton v. Gem State Mut., 794 P.2d 847, 849 (Utah Ct. App. 1990). Accordingly, we are limited to reviewing whether the trial court's disposition was appropriate in light of its findings.

Given the findings, the trial court's awards of child support and alimony are within the range of its discretion. SeeCummings v. Cummings, 821 P.2d 472, 474-75 (Utah Ct. App. 1991) (providing that trial courts have broad discretion in divorce matters so long as decision is within the confines of legal precedence). The record reflects adequate findings on each factor relevant to determining alimony. See Utah Code Ann.

§ 30-3-5(7)(a) (Supp. 1999). We do not disturb an alimony award where the trial court exercises its discretion within the appropriate legal standards and has supported the decision with adequate findings and conclusions. See Childs v. Childs, 967 P.2d 942, 946 (Utah Ct. App. 1998), cert. denied, 982 P.2d 88 (Utah 1999).

Steven also challenged the court's valuation of the photography business. He argues the court should have considered only the value of the equipment, with no value attributed to his service because he had ceased working as a photographer. The findings adequately support the valuation made by the trial court. Without a transcript, we are unable to ascertain whether his further contention that the appraisal of the residence should have been updated was raised before the trial court. See Ong Int'l. (U.S.A.), Inc. v. 11th Avenue Corp., 850 P.2d 447, 455 (Utah 1993) (stating that as a general rule appellate courts will not consider issue raised for first time on appeal). Steven has not challenged the calculation of the amount of attorney fees and expert witness fees awarded to Kathleen, but does challenge the offset against his equity in the marital residence. Based upon the findings that Kathleen was in need of assistance in paying her fees, Steven was able to assist her, and the fees incurred were reasonable and necessary, the award must be affirmed. SeeRehn v. Rehn, 974 P.2d 306, 313 (Utah Ct. App. 1999). If Steven prefers to pay the fees now, he can do so, and this offset will be avoided.

Steven's further contention that Kathleen should be required to refinance or sell the home in order to immediately pay his equitable lien is without merit. The equity is payable upon the earliest of several events, to wit: Kathleen's remarriage, sale of the home or failure to use it as a primary residence, or the youngest child reaching majority. This court will not set aside a property division unless "there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderates against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion." Watson v. Watson, 837 P.2d 1, 5 (Utah 1992). None of these conditions applies to this case, and the award is affirmed, particularly because it allows the minor children to remain in their accustomed home. The trial court's decisions regarding health insurance, uninsured medical and dental expenses, and the allocation of tax exemptions are adequately supported by the findings and are, therefore, affirmed. In addition, the decree provided a means for the parties to alter the allocation of tax exemptions that is typical and reasonable. Finally, while Steven complains about the treatment of Kathleen's retirement, he provides no argument supporting his contention it was inequitable to award Kathleen her retirement.

We affirm the judgment.
 
 
 
 

______________________________

Pamela T. Greenwood,

Associate Presiding Judge
 
 
 
 

______________________________

Russell W. Bench, Judge
 
 
 
 

______________________________

Gregory K. Orme, Judge