Donovan v. Donovan, Jr.

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Donovan v. Donovan, Jr., Case No. 20000121-CA, Filed March 8, 2001 IN THE UTAH COURT OF APPEALS


Diane C. Donovan,


Charles E. Donovan Jr.,

(Not For Official Publication)

Case No. 20000121-CA

March 8, 2001 2001 UT App 65 -----

Third District, Coalville Department
The Honorable Pat B. Brian

Diane C. Donovan, Park City, Appellant Pro Se
Ellen Maycock, Salt Lake City, for Appellee


Before Judges Billings, Davis, and Orme.


Diane Donovan (Plaintiff) appeals the trial court's denial of her petition to modify her divorce decree from Charles E. Donovan (Defendant). We affirm.

Plaintiff first argues the trial court's findings of fact were inadequate. In determining whether to modify a divorce decree, the trial court must first find that there has been a "substantial material change in circumstances not foreseeable at the time of the divorce." Utah Code Ann. § 30-3-5(7)(g)(i) (Supp. 2000). "'[T]he trial court must make findings on all material issues, and its failure to delineate what circumstances have changed and why these changes support the modification made in the prior divorce decree constitutes reversible error unless the facts in the record are clear, uncontroverted, and only support the judgment.'" Williamson v. Williamson, 1999 UT App 219,¶9, 983 P.2d 1103 (alteration in original) (quoting Muir v. Muir, 841 P.2d 736, 739 (Utah Ct. App. 1992)).

In this case, we conclude the trial court's findings were adequate. The trial court found: Plaintiff possesses educational skills and employment experience to be gainfully and significantly employed;

Plaintiff has voluntarily failed to timely obtain gainful and meaningful employment.

Plaintiff's alleged emotional and physical problems do not constitute a material change of circumstances since September, 1997;

Plaintiff's minor child's asthmatic condition existed prior to September, 1997, and does not constitute a material change of circumstances for Plaintiff;

Plaintiff's monthly expenses have not increased because of the alleged non-visitation of the Defendant with the minor children;

Plaintiff has not had a material decrease in income since September, 1997;

Plaintiff's standard of living has not materially decreased since September, 1997;

Plaintiff has no valid need for increased child support or alimony[.]

Defendant's income has not materially increased since September, 1997.

Defendant's standard of living has not materially increased since September, 1997.

Defendant pays child support which exceeds the Uniform Child Support Guidelines. These payments constitute the majority of financial support for the minor children;

Defendant has no ability to pay increased alimony or child support. These findings of fact are more than cursory statements and contain enough detail to support the trial court's conclusion that no material change of circumstances has occurred.

Plaintiff also argues the trial court's findings were not supported by the evidence.

On appeal, it is the burden of the party seeking to overturn the trial court's decision to "marshal the evidence in support of the findings 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.'"

Hagan v. Hagan, 810 P.2d 478, 481 (Utah Ct. App. 1991) (citations omitted). We have explained:

The marshaling process is not unlike becoming the devil's advocate. [The challenging party] must . . . fully assume the adversary's position. In order to properly discharge the duty of marshaling the evidence, the [challenging party] must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the [challenging party] resists. After constructing this magnificent array of supporting evidence, the [challenging party] must ferret out a fatal flaw in the evidence. The gravity of this flaw must be sufficient to convince the appellate court that the [trial] court's finding resting upon the evidence is clearly erroneous.

West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991). "When an appellant fails to meet the '"heavy burden"' of marshaling the evidence, '"we assume[] that the record supports the findings of the trial court."'" Moon v. Moon, 1999 UT App 12,¶24, 973 P.2d 431 (alteration in original) (citations omitted). In this case, Plaintiff has failed to marshal the evidence and instead simply reargues the points she made to the trial court. Accordingly, we must assume the trial court's findings are supported by the evidence and affirm its decision to deny Plaintiff's petition to modify.

Judith M. Billings, Judge -----


James Z. Davis, Judge

Gregory K. Orme, Judge