Porter v. Porter

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Sean Porter,
Petitioner and Appellant,

v.

Natalie Streeter Porter,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010179-CA

F I L E D
June 27, 2002 2002 UT App 218 -----

Third District, Coalville Department
The Honorable Leon A. Dever

Attorneys:
Franklin Richard Brussow, Salt Lake City, for Appellant
David B. Thompson, Portland, Oregon, and Christina Inge Miller, Park City, for Appellee

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Before Judges Billings, Bench, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

"[Where an] appellant . . . urge[s] on appeal that a finding or conclusion is unsupported by or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." Utah R. App. P. 11(e)(2). See Fackrell v. Fackrell, 740 P.2d 1318, 1319-20 (Utah 1987)(explaining that absence of transcript precludes meaningful appellate review). Furthermore, "[t]o successfully appeal a trial court's findings of fact, appellate counsel must" also adequately marshal the evidence. Oneida/SLIC v. Oneida Cold Storage & Warehouse, Inc., 872 P.2d 1051, 1052-53 (Utah Ct. App. 1994). "'In order to properly discharge the [marshaling] duty . . ., the challenger must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists.'" Id. at 1053 (alterations and emphasis in original) (quoting West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991)). Without a transcript, proper marshaling of the evidence is impossible.

In this case, where Appellant chose not to provide a transcript and has not met his marshaling burden, we have no choice but to "assume that the evidence support[s] the . . . findings." Utah Med. Prods., Inc. v. Searcy, 958 P.2d 228, 233 (Utah 1998). See Oneida, 872 P.2d at 1052-53.

District courts are granted "broad latitude" in distributing property and setting alimony awards in divorce proceedings. Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985). Having accepted the trial court's findings as valid, we are not persuaded that the court abused its discretion in adjusting the rights and obligations of the parties in the manner it did. See id. (holding awards of alimony and distributions of property are reviewed for abuse of discretion).

Affirmed.
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge