Garlett v. Garlett

----ooOoo----

Charles S. Garlett,
Petitioner and Appellant,

v.

Jennifer T. Garlett,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010218-CA

F I L E D
July 5, 2002 2002 UT App 228 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
Mary C. Corporon and Jarrod H. Jennings, Salt Lake City, for Appellant
Happy Morgan, Moab, for Appellee -----

Before Judges Jackson, Billings, and Bench.
BILLINGS, Associate Presiding Judge:

Charles S. Garlett (Husband) appeals from a divorce decree awarding alimony and child support. We affirm.

Husband challenges the adequacy of the trial court's factual findings underlying the alimony award. The findings show the trial court considered: "(i) the financial condition and needs of the recipient spouse; (ii) the recipient's earning capacity or ability to produce income; (iii) the ability of the payor spouse to provide support; (iv) the length of the marriage; [and] (v) whether the recipient spouse has custody of minor children requiring support;" in light of the parties' standard of living. Utah Code Ann. § 30-3-5(7) (Supp. 2001).

Husband asserts the findings are inadequate because "both parties claimed inconsistencies and errors in the other party's expenses." Thus, he argues, the trial court should have made specific findings as to the reasonableness of the parties' living expenses. Husband fails to cite the record in support of his assertion. See Utah R. App. 24(a)(9). Our review of the record persuades us that the reasonableness of the parties' living expenses was uncontroverted below. Thus, specific findings in regard to the parties' living expenses are unnecessary and we conclude the findings are adequate. See Rehn v. Rehn, 1999 UT App 41,¶¶6-8, 974 P.2d 306.(1)

Husband next argues the trial court made insufficient findings to conclude that he earns $50,000 a year for purposes of alimony and child support. In this regard, he first argues the trial court failed to make a specific finding regarding his reasonable business expenses as required by Utah Code Ann. § 78-45-7.5(4)(a) (Supp. 2001). See also Breinholt v. Breinholt, 905 P.2d 877, 880 (Utah Ct. App. 1995). However, "a self-employed [spouse] seeking to reduce [alimony and] child support because of business expenses must prove those expenses are necessary to allow the business to operate at a reasonable level." Reinhart v. Reinhart, 963 P.2d 757, 759 n.3 (Utah Ct. App. 1998). Because Husband failed to establish any reasonable expenses that would reduce his alimony and child support obligations, we conclude the lack of a specific finding as to such expenses was not in error.

Husband further argues the trial court erred because it did not make a threshold finding that he was voluntarily unemployed as required by Utah Code Ann. § 78-45-7.5(7)(a) (Supp. 2001). Jennifer T. Garlett (Wife) responds that the trial court did not impute income to Husband, but found what he was actually earning, thus section 78-45-7.5(7)(a) does not apply. We agree with Wife. The trial court found both that Husband "has actually earned" and "is capable of earning" $50,000 a year.

Husband also argues the trial court failed to make adequate findings as to his employment potential and probable earnings as required by Utah Code Ann. § 78-45-7.5(7)(b) (Supp. 2001). See also Hall v. Hall, 858 P.2d 1018, 1026-27 (Utah Ct. App. 1993). Again, explicit findings as to "prevailing earnings for persons of similar backgrounds in the community" were not required as the trial court did not impute income, but rather based income on historical earnings.

Husband argues there is no evidentiary basis for the trial court's findings that he has earned and is capable of earning $50,000 a year. Although Husband cites evidence in support of these findings, he has failed to "marshal [all of] the evidence supporting the trial court's findings and then . . . show that the findings are unsupported." Moon v. Moon, 1999 UT App 12,¶24, 973 P.2d 431. Thus, we assume the record supports the findings. See id.

Husband additionally argues the trial court exceeded its discretion in denying his motion for a new trial on the basis of newly discovered evidence that he was not the biological father of one of the children. Husband failed to demonstrate that "such evidence could not have been produced or discovered at trial in the exercise of due diligence." Hudema v. Carpenter, 1999 UT App 290,¶41, 989 P.2d 491. Thus, we cannot say the trial court exceeded its discretion in denying Husband's motion for a new trial.

Husband argues the trial court exceeded its discretion in denying his motion for relief from judgment on the bases of mistake, surprise, fraud, excusable neglect, and equity. To preserve an issue for appeal, a party must specifically raise the issue and "introduce supporting evidence or relevant legal authority." Searle v. Searle, 2001 UT App 367,¶17, 38 P.3d 307 (quotations and citations omitted). Husband's motion was supported only by a paternity test indicating he was not the biological father of one of the children. Because the record does not contain any evidence supporting Husband's fraud, mistake, and surprise claims, we cannot say the trial court exceeded its discretion in denying Husband's motion. We decline to review Husband's excusable neglect and equity claims raised for the first time on appeal. See, e.g., Meyer v. Bartholomew, 690 P.2d 558, 559 (Utah 1984); Turtle Mgmt., Inc. v. Haggis Mgmt., Inc., 645 P.2d 667, 672 (Utah 1982).(2)

Wife seeks attorney fees under Rule 33 of the Utah Rules of Civil Procedure. We deny Wife's request for attorney fees on appeal.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge

1. In his reply brief, Husband argues the trial court exceeded its discretion in failing to make the reasonable assumption that Husband will be paying taxes of at least 26% on his income, leaving Husband with $1,433.00 a month to live on after he pays alimony and child support. He also argues the trial court erred in considering the $17,000 in "loans" from friends for whom he is building a home in determining his income. Because these arguments were raised in Husband's reply brief, we decline to consider them. See In re E.R., 2001 UT App 66,¶15, 21 P.3d 680.

2. Husband also argues the trial court exceeded its discretion in the property distribution. This claim is inadequately briefed; thus, we decline to address it. See, e.g., State v. Lucero, 2002 UT App 135,¶¶8-9, 446 Utah Adv. Rep. 17.