Mackey v. Mackey

----ooOoo----

Penny Leona Mackey,
Petitioner and Appellee,

v.

Robert Kenneth Mackey,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010013-CA

F I L E D
October 24, 2002 2002 UT App 349 -----

Second District, Farmington Department
The Honorable Darwin C. Hansen

Attorneys:
Candace S. Bridgess, Ogden, for Appellant
Stuwert B. Johnson, Ogden, for Appellee -----

Before Judges Billings, Davis, and Orme.
BILLINGS, Associate Presiding Judge:

In this appeal from a decree of divorce, Robert K. Mackey (Husband) first argues the trial court erred because he should have received half of the Sunset home's (the Home) appreciated equity from the date of the marriage. The trial court specifically found $16,200 of the Home equity to be marital property. The court reached this figure by subtracting the Home's value in 1991 ($72,800), when the parties moved into the Home, from its current value ($89,000). The trial court included this $16,200 in determining the total marital property, which it then evenly divided between the parties. Husband may not attack one discrete part of the property distribution without referencing the entire property division as a whole. Cf.Newmeyer v. Newmeyer, 745 P.2d 1276, 1279 n.1 (Utah 1987). Similarly, Husband's assertion that the trial court erred because it did not "specifically state why the trial court made an unequal division of marital property" is also in error. Again, the property division in this case was equal, in accordance with the general rule regarding marital property. See Bradford v. Bradford, 1999 UT App 373,¶26, 993 P.2d 887 (noting the general rule in divorce proceedings that each party is presumed to be entitled to fifty percent of the marital property).

Next, Husband claims he should have been awarded half of the Home equity from the date of the marriage, as opposed to the date the parties moved into the Home. The record does not support using the date of the marriage rather than the date the parties moved into the Home as the starting point for calculating marital equity. The Home was separate property before that date and the income it produced went to Penny L. Mackey's (Wife) grandparents, who were joint owners with Wife. Further, Husband's claims regarding refurbishing the Home and investing marital funds to improve the Home's value both occurred after the parties moved to Utah in 1991. Under the general rule, Husband is not entitled to any appreciation on the Home prior to the date the parties moved into the Home because it was Wife's separate property. SeeElman v. Elman, 2002 UT App 83,¶18, 45 P.3d 176. The general rule applies unless "the other spouse has by his or her efforts augmented, maintained, or protected the separate property." Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct. App. 1990). After Husband and Wife moved into the Home, Husband's labor added to the Home's value and marital funds were invested in the Home. Thus, the trial court did not abuse its discretion by finding all appreciation in equity while the parties lived in the Home to be marital property. See Schaumberg v. Schaumberg, 875 P.2d 598, 603 (Utah Ct. App. 1994).

Husband next argues the trial court erred when it found that $15,000 in funds were Wife's separate property. The trial court found that Wife received $74,000 in inheritance money, with $24,000 remaining at the time of separation. Of the remaining money, the trial court found $9,000 was commingled with marital funds in a stock account and was therefore marital property. The court determined the remaining balance of $15,000 to be non-marital property, stating: [T]hough it may have been in an account with the Respondent's name on it, the court finds that it is non-marital and specifically finds that the Internal Revenue Service levied against that account for payment of delinquent taxes on the part of the Respondent in the amount of nine thousand six hundred twenty dollars ($9620.00). But following investigation the IRS released the levy on those funds on January 13, 1997, on grounds that the account was non-marital funds and therefore the Court concludes that the fifteen thousand dollars ($15,000.00) or whatever amount is currently left is non-marital funds and not subject to distribution. "[T]o challenge a finding, the party must marshal all evidence supporting the challenged finding and demonstrate how the marshaled evidence is insufficient to support the finding." Schaumberg, 875 P.2d at 603. Husband fails to even mention the evidence concerning the IRS investigation regarding the very same funds. Cf.Marsh v. Marsh, 1999 UT App 14,¶18, 973 P.2d 988 (holding IRS's treatment of payment was evidence of it being a retirement advance). Furthermore, the testimony at trial regarding whether the funds had been commingled was conflicting. Because the trial court "was in a superior position to judge the credibility of the witnesses and to weigh the evidence," we defer to its judgment. Schaumberg, 875 P.2d at 603.

We therefore affirm on all issues.
 
 

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

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Gregory K. Orme, Judge