Cox v. Cox

Cox v. Cox

IN THE UTAH COURT OF APPEALS

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Judy Cox,
Petitioner and Appellee,

v.

Larry Cox,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020183-CA
 

F I L E D
(July 3, 2003)
 

2003 UT App 229

 

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Third District, Salt Lake Department

The Honorable Glenn K. Iwasaki

Attorneys: Larry Cox, Riverton, Appellant Pro Se

Robert H. Wilde, Midvale, for Appellee

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Before Judges Bench, Davis, and Greenwood.

DAVIS, Judge:

Larry Cox (Husband) argues that the trial court's findings do not support its award of alimony to Judy Cox (Wife). Husband fails to meet his marshaling burden on this issue.

To successfully challenge a trial court's findings of fact on appeal, an appellant must marshal the evidence in support of the findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be against the clear weight of the evidence, thus making them clearly erroneous.

Valcarce v. Fitzgerald, 961 P.2d 305, 312 (Utah 1998) (quotations and citations omitted). To meet this marshaling burden,

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. After constructing this magnificent array of supporting evidence, the challenger must ferret out a fatal flaw in the evidence. The gravity of this flaw must be sufficient to convince the appellate court that the court's finding resting upon the evidence is clearly erroneous.

West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991). "[M]arshaling requires that the party challenging the finding show us where the evidence can be located and list the specific evidence supporting the verdict." In re W.A., 2002 UT 127,¶45, 63 P.3d 607, cert. denied, 123 S. Ct. 2092 (2003). "It is not our obligation . . . to comb the record for evidence." Id. (quotations and citation omitted).

Husband fails to present us with all of the evidence supporting the trial court's findings and does not adequately cite to the trial record. Instead, he merely reargues his view of the evidence presented at trial, which is not an acceptable tactic on appeal. See ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. App. 1997) (stating that appellant "may not simply reargue its position based on selective excerpts of evidence presented to the trial court").

Even if Husband had met his marshaling burden on this issue, we conclude that the trial court's findings on this issue are not clearly erroneous. "Trial courts have broad discretion in making alimony awards. Therefore, we will not disturb a trial court's alimony award so long as the trial court exercised its discretion within the appropriate legal standards, and supported its decision with adequate findings and conclusions[.]" Childs v. Childs, 967 P.2d 942, 946 (Utah Ct. App. 1998) (quotations and citations omitted). In awarding alimony under Utah law, a trial court is required to consider seven factors. See Utah Code Ann. § 30-3-5(7)(a)(i)-(vii) (Supp. 2002). The remaining factors under section 30-3-5 are provided for the trial court to consider at its discretion. See id. § 30-3-5(7)(b)-(h).

In this case, the trial court entered detailed findings of fact which show that it considered each of the applicable required factors in making its alimony determination. In addition, each of these findings is supported by evidence presented at trial. For these reasons, we conclude that the trial court's findings are not "so lacking in support as to be against the clear weight of the evidence" and, therefore, are not "clearly erroneous." Valcarce, 961 P.2d at 312 (quotations and citations omitted). Accordingly, we affirm the trial court's award of alimony to Wife.

Husband argues that the trial court abused its discretion in imputing income to both Husband and Wife. Husband's argument on this issue is inadequately briefed. See Utah R. App. P. 24(a)(9). "Implicitly, rule 24(a)(9) requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority." State v. Thomas, 961 P.2d 299, 305 (Utah 1998). "[T]his court is not a depository in which the appealing party may dump the burden of argument and research." Id. (quotations and citations omitted). We will consider an issue inadequately briefed "when the overall analysis of the issue is so lacking as to shift the burden of research and argument to [this] court." Id. In his argument on this issue, Husband string-cites several Utah cases, but he does not develop these cases or provide "reasoned analysis" based upon them. Id. His legal analysis of the issue is "so lacking" that it "shift[s] the burden of research and argument to [this] court." Id.

Even if Husband had adequately briefed this issue, we conclude that the trial court did not abuse its discretion in imputing income to both Husband and Wife. When "the trial court relie[s] on evidence sufficiently detailed in its findings of fact in imputing income to [a party], we [will] hold that the court did not abuse its discretion by imputing income to [that party], and we will not disturb the court's related findings." Willey v. Willey, 914 P.2d 1149, 1152 (Utah Ct. App. 1996), rev'd on other grounds, 951 P.2d 226 (Utah 1997). In this case, the trial court entered detailed findings of fact in support of its decision to impute income to both parties, and each of these findings is adequately supported by evidence presented at trial. Therefore, we conclude that the trial court did not abuse its discretion in imputing income to both Husband and Wife, and we affirm the trial court's decision on this issue.

Husband asserts that the trial court abused its discretion in dividing the marital property between Husband and Wife. Again, Husband does not satisfy his marshaling burden on this issue. He fails to present us with all the evidence in support of the trial court's findings and fails to show us that "despite this evidence, the trial court's findings are so lacking in support as to be against the clear weight of the evidence, thus making them clearly erroneous." Valcarce v. Fitzgerald, 961 P.2d 305, 312 (Utah 1998) (quotations and citations omitted); see West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991). In addition, Husband fails to adequately brief this issue. See Utah R. App. P. 24(a)(9). His argument provides us with no "development of [legal] authority [or] reasoned analysis based on that authority." Thomas, 961 P.2d at 305. His legal analysis of the issue is "so lacking" that it "shift[s] the burden of research and argument to [this] court." Id.

Despite Husband's failure to marshal the evidence and to provide an adequately briefed argument on this issue, we conclude that the trial court did not abuse its discretion in dividing the marital property between Husband and Wife. "[U]nder [Utah Code Ann. §] 30-3-5[ (Supp. 2002)], there is no fixed rule or formula for the division of property, the trial court has wide discretion in property division, and its judgment will not be disturbed on appeal unless an abuse of discretion can be demonstrated." Mortensen v. Mortensen, 760 P.2d 304, 305-06 (Utah 1988). "We disturb a trial court's property division and valuation only when there is a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderates against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion." Elman v. Elman, 2002 UT App 83,¶17, 45 P.3d 176 (quotations and citations omitted).

In support of its division of property between the parties, the trial court in this case entered detailed findings of fact, all of which are supported by evidence presented at trial. Therefore, we conclude that the evidence does not "clearly preponderate[] against the findings" and that the trial court did not commit "a clear abuse of discretion" in dividing the marital property between Husband and Wife. Id. (quotations and citations omitted). Accordingly, we affirm the trial court's decision on this issue.

Finally, Husband argues that the trial court's findings do not support its determination of Wife's share of Husband's military retirement income. "[W]e review the trial court's findings of fact for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made." ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. App. 1997).

At trial, the parties disputed the date to be used by the trial court for purposes of calculating the length of Husband's total military service. Husband argued that the date of his enlistment in the military (January 26, 1968) should be used because it would increase the length of Husband's pre-marriage military service, thereby decreasing Wife's share of Husband's military retirement income. Wife argued that the date Husband was commissioned (December 10, 1968) should be used because it would decrease the length of Husband's pre-marriage military service, thereby increasing Wife's share of Husband's military retirement income.

In support of his argument, Husband relied upon two documents admitted into evidence by the trial court as part of Defendant's Exhibit #63, the "Certificate of Release or Discharge From Active Duty" and the "Record of Assignments." The trial court stated that there was a "discrepancy" between these two documents relating to the beginning date of Husband's military service. Because of this "discrepancy," the trial court determined that it would use the date Husband was commissioned (December 10, 1968) for purposes of calculating the length of Husband's total military service and Wife's share of Husband's military retirement income.

Consequently, the trial court found the total length of Husband's military service to be 8818 days, which is the number of days between the date Husband was commissioned (December 10, 1968) and the date Husband retired from the military (January 31, 1993). The trial court also found the length of Husband's military service while married to Wife to be 7745 days, which is the number of days between the date Husband and Wife were married (November 18, 1971) and the date Husband retired from the military (January 31, 1993). Using these numbers, the trial court found that, "in accordance with the Woodward formula," Wife was "entitled to . . . 43.9158954% of [Husband]'s military retirement" income.

After reviewing the two documents from Defendant's Exhibit #63, we cannot see the same "discrepancy" the trial court found regarding the beginning date of Husband's military service. The first entry in the "Record of Assignments" clearly indicates that Husband's date of enlistment was January 26, 1968. Although line "12.a." of the "Certificate of Release or Discharge From Active Duty" indicates that Husband was commissioned on December 10, 1968, line "12.d." indicates that Husband had 10 months and 14 days of "Total Prior Active Service." This entry for 10 months and 14 days (319 days) accounts for all of the time between Husband's enlistment date (January 26, 1968) and the date he was commissioned (December 10, 1968). When read together, these two documents are not discrepant in regard to Husband's beginning date of military service, rather, they are consistent in establishing that Husband's beginning date of military service was January 26, 1968. Because no other evidence was admitted at trial on this issue, the trial court should have used Husband's January 26, 1968 enlistment date in calculating Husband's total military service and Wife's share of Husband's military retirement income.(1)

Therefore, we conclude that the trial court's finding relating to Husband's beginning date of military service is "against the clear weight of the evidence" and, therefore, clearly erroneous. ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. App. 1997). Accordingly, we reverse the trial court's determination of Wife's share of Husband's military retirement income and remand for the trial court to modify the Decree of Divorce and Judgment so that this award to Wife reflects the resulting increase in Husband's pre-marriage military service when Husband's enlistment date is used as his beginning date of military service.(2)

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James Z. Davis, Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Pamela T. Greenwood, Judge

1. If Husband's enlistment date is used as the beginning date of his military service, Husband's total military service is 9137 days (January 26, 1968 to January 31, 1993).

2. Wife requests attorney fees incurred as a result of this appeal. In the Decree of Divorce and Judgment, both parties were ordered to bear their own costs and attorney fees associated with the trial. Therefore, "because attorney fees were not awarded below, neither party is entitled to attorney fees on appeal." Baker v. Baker, 866 P.2d 540, 547 (Utah Ct. App. 1993).