Arnason v. Arnason

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Beverly Sue Arnason,
Defendant and Appellant,

v.

Anthony David Arnason,
Plaintiff and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990525-CA

F I L E D
July 18, 2002 2002 UT App 243 -----

Third District, Salt Lake Department
The Honorable Frank G. Noel

Attorneys:
David Paul White, Murray, for Appellant
M. Bryon Fisher and David N. Kelly, Salt Lake City, for Appellee -----

Before Judges Bench, Greenwood, and Thorne.

BENCH, Judge:

Beverly Sue Arnason (Wife) argues that the trial court erred in finding that Anthony David Arnason's (Husband) inheritance funds and proceeds from the sale of the Carbon County property were not part of the marital estate. We affirm.

The rule in Utah is that courts generally award property acquired by one spouse by gift and inheritance during the marriage . . . to that spouse, . . . unless (1) the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property . . . or (2) the property has been consumed or its identity lost through commingling or exchanges or where the acquiring spouse has made a gift of an interest therein to the other spouse. Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988). Wife does not argue that she is entitled to a share of the inheritance funds because of her efforts to enhance their value, but rather because they were commingled in the marital estate.(1) The trial court was thus required to find whether the funds had been consumed, or had lost their identity to the point that they were indistinguishable from the remainder of the marital estate. Based on the evidence presented, the trial court found that the funds "were not commingled in any form with the marital funds or funds of [Wife]," and that the source of the funds was "identifiable and was traceable to the investments made which characterized the funds as separate assets of [Husband] and not marital assets of the parties."

"Findings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Utah R. Civ. P. 52(a). "A finding of fact will be found clearly erroneous when it is contrary to the clear weight of the evidence, or if the appellate court has a 'definite and firm conviction that a mistake has been made.'" D'Aston v. D'Aston, 844 P.2d 345, 354-55 (Utah Ct. App. 1992) (quoting Cummings v. Cummings, 821 P.2d 472, 476 (Utah Ct. App. 1991)). Based on our review of the record, we cannot conclude that the trial court's findings were clearly erroneous. Evidence was presented during trial as to each party's theory and the trial court, as the trier of fact, found more credibility in Husband's evidence. Wife, on appeal, does not show us how the trial court's findings are "contrary to the clear weight of evidence," but merely reargues her trial position. Id.

For the same reasons, we conclude that the trial court did not err in awarding Husband the value of the Carbon County property he owned prior to the marriage. The trial court found that the profit from the sale of that property, although used as a down payment on the marital home, was a readily identifiable and separate asset. That finding is not clearly erroneous.

Accordingly, the judgment of the trial court is affirmed.
 
 

______________________________
Russell W. Bench, Judge

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WE CONCUR:
 
 

______________________________
Pamela T. Greenwood, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. In Bradford v. Bradford, 1999 UT App 373, 993 P.2d 887, we determined that "[a] transfer of otherwise separate property to a joint tenancy with the grantor's spouse is generally presumed to be a gift . . . and, when coupled with an evident intent to do so, effectively changes the nature of that property to marital property." Id. at ¶22. Wife does not argue in this case that the separate property was converted into marital property as a gift from Husband.