Harris v. Harris

----ooOoo----

Craig Jack Harris,
Petitioner and Appellee,

v.

Bonnie Harris,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000037-CA

F I L E D
November 29, 2002 2002 UT App 391 -----

Fourth District, Provo Department
The Honorable Ray M. Harding Jr.

Attorneys:
Charles A. Schultz, Heber, for Appellant
Loren D. Martin, Salt Lake City, for Appellee -----

Before Judges Bench, Davis, and Thorne.

BENCH, Judge:

Wife argues that the trial court made several errors relating to distribution of the marital estate. Specifically, Wife takes issue with the trial court's adoption of the Norman Loebbecke Associates listing of the separate assets, the division of the business Aid Equipment, the inclusion of her mother's former home in the marital estate, and the exclusion of the business CST from the marital estate. "In divorce proceedings, the trial court is given considerable discretion in fashioning an equitable property distribution, . . . and its findings will not be disturbed absent an abuse of discretion." Carlton v. Carlton, 756 P.2d 86, 87 (Utah Ct. App. 1988). When challenging the trial court's findings of fact, Wife "must first marshal all record evidence that supports the challenged finding." Utah R. App. P. 24(a)(9). Rather than fulfill the marshaling requirement by presenting to us the facts that support the trial court's findings, Wife's brief recites only the facts opposing the trial court's findings. Because she failed to meet her marshaling duty, we cannot conclude that the trial court abused its discretion in the property division. We recognize that, having heard and considered all the evidence firsthand, the trial court sits in an advantaged position to judge the facts. See McBride v. McBride, 581 P.2d 996, 997 (Utah 1978). Therefore, we decline to review the property division issues.

Wife also argues that the trial court violated her due process and equal protection rights when it applied a cutoff date for her to submit documents to Norman Loebbecke, but did not impose a cutoff date on Husband. Wife cites to a portion of the record wherein she argues she preserved this issue, although admitting that "the actual words of due process and equal protection were not used." After reviewing the identified portion of the record, we cannot find even an oblique reference to a due process or equal protection challenge raised before the trial court. "'For an issue to be sufficiently raised, even if indirectly, it must at least be raised to a level of consciousness such that the trial judge can consider it.'" Lebaron & Assocs. v. Rebel Enters., 823 P.2d 479, 483 (Utah Ct. App. 1991) (citation omitted). We cannot conclude that Wife raised any constitutional issues to the trial court's consciousness such that it could rule specifically on those issues. Thus, Wife has not adequately preserved her constitutional issues for appeal and we do not address them.

Wife argues that the trial court erred in allowing Husband to pay his court costs and attorney fees out of the revenues generated by Aid Equipment. Although framed as an attorney fees issue, Wife's argument really goes to the trial court's division of the marital property. Except for the costs and fees incurred by Husband on the order to show cause, the trial court ordered the parties to bear their own attorney fees and costs. Wife does not cite to where in the record the trial court ordered Husband to pay his fees and costs out of the Aid Equipment revenue. In any event, Aid Equipment was determined by the trial court to be a marital asset and was awarded to Husband as part of his share of the marital estate. Wife was awarded other property equal in value to Aid Equipment as her share of the marital estate. Both parties were free to use their property to pay for their own costs and fees. The fact that the property awarded to Husband may be more liquid than that awarded to Wife is immaterial. Therefore, we reject Wife's argument on appeal and conclude that the trial court did not abuse its discretion in ordering the parties to pay their own attorney fees.

Wife also argues that the trial court erred when it ordered her to pay one-half of the Norman Loebbecke costs, plus the additional costs incurred when Wife failed to meet the discovery deadlines. During the February 13, 2001 hearing, the trial court heard evidence about the work done and fees charged by Norman Loebbecke. At the conclusion of that hearing, the trial court ordered that the parties should split the fees 50/50, with the exception that Wife was also charged for the work done after she failed to meet the initial discovery deadlines. We find no abuse of discretion in the court's award.

Finally, Wife argues that the trial court erred by not awarding her alimony. Utah Code Ann. § 30-3-5 (2002) gives the trial court the authority to award or deny alimony and provides a list of factors the trial court should consider in making that determination. See id. § 30-3-5(7)(a)(i)-(vii). In its Amended Supplementary Findings of Fact and Conclusions of Law, the trial court addresses the factors in section 30-3-5(7)(a)(i)-(vii) and concludes that Wife is not entitled to an alimony award. In challenging this conclusion, Wife reargues her position at trial without even acknowledging the existence of the trial court's analysis of the statutory factors. Wife presents no significant argument to rebut the trial court's findings that the "substantial assets" she was awarded will assist her in supporting herself, that Wife has no physical or mental disabilities that would prevent her from working, or any of the other factors weighing against an award of alimony. Therefore, we conclude that the trial court fulfilled its statutory duty in considering the factors in section 30-3-5(7)(a)(i)-(vii), made adequate findings regarding those factors, and did not abuse its discretion in denying Wife an award of alimony.

We affirm the judgment of the trial court. We deny Husband the damages requested under rule 33. See Utah R. App. P. 33. Husband is, however, entitled to his appeal costs under rule 34. See Utah R. App. P. 34.
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne Jr., Judge