State of Utah v. Pickering

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State v. Pickering. Filed July 29, 1999 IN THE UTAH COURT OF APPEALS
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State of Utah, Office of Recovery Services, ex rel. Debra D. Pickering (nka Debra Starks),
Petitioner and Appellee,

v.

Howard Pickering,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990365-CA

F I L E D
July 29, 1999
  1999 UT App 235 -----

Fourth District, Provo Department
The Honorable Fred D. Howard

Attorneys:
Howard Pickering, Cedar City, Appellant Pro Se
Jan Graham and Karma K. Dixon, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Jackson.

PER CURIAM:

Appellant Howard Pickering appeals from the Findings and Order Confirming Registration of Foreign Support Order. This case is before the court on a sua sponte motion for summary affirmance.

Appellant contends the California support order should not have been confirmed and should have been vacated by the Utah court, alleging it was obtained by fraud. Appellant did not attend the trial at which child support was determined and allowed his default to be entered in the California proceedings. The resulting order was registered in Utah for enforcement purposes pursuant to Utah Code Ann.
§ 78-45f-601. Appellant sought to vacate its registration pursuant to Utah Code Ann. § 78-45f-607(1). No proceedings to modify the support order have been initiated in Utah.(1)

To the extent appellant claims he was not afforded due process in the Utah proceedings, his claims are without merit. The trial court served appellant with the notice required by Utah Code Ann. § 78-45f-605, advising him of the time for filing a request for a hearing to contest registration of the California support order. Appellant filed a request for a hearing and a motion to vacate the registration. His motion challenged the order based upon alleged "evidence of fraud and/or other defenses allowed under state law." See Utah Code Ann. § 78-45f-607(1). Following a hearing, the Utah court denied the motion to vacate, finding that there was no fraud in the entry of the order and that Pickering had not met his burden of proving the existence of a defense to enforcement of the order.

Appellant has not provided a transcript of the hearing in the Utah court. Accordingly, he is unable to marshall the evidence in support of the court's findings and demonstrate that they are clearly erroneous. Utah R. App. P. 11(e)(2) 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 finding or conclusion." In the absence of a transcript, this court is unable to determine whether the trial court's findings were based upon sufficient evidence and will presume the correctness of the trial court's disposition. See Horton v. Gem State Mutual, 794 P.2d 847, 849 (Utah Ct. App. 1990). However, even assuming the facts as alleged are true, appellant did not allege sufficient facts to establish fraud in obtaining the California child support award or another defense available under Utah law.

The Utah court followed the statutory procedures for registration and confirmation of a foreign support order. Appellant was granted a hearing upon his request; however, he failed to meet the burden of establishing a defense under section 78-45f-607. Appellant's contention he was entitled to an evidentiary hearing on the child support determination has no support in the statutory provisions. Although the record reflects appellant offered written evidence of his financial condition, the inquiry at the hearing was whether a defense of fraud could be established. Based upon the appellant's failure to establish the defense of fraud or any other available defense, the trial court did not err in confirming the order to allow its enforcement. See Utah Code Ann. § 78-45f-607(3).

Accordingly, the judgment is affirmed.
 
 
 

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Judith M. Billings, Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

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Norman H. Jackson, Judge

1. These proceedings are governed by the Uniform Interstate Family Support Act, codified at Utah Code Ann. § 78-45f-100 et seq. (1998 Supp.) To modify, rather than enforce, a foreign support order in this state, a party must file a petition under section 78-45f-609 and demonstrate satisfaction of all prerequisites under sections 78-45f-610 to -614.