Pasquin v. Souter

Pasquin v. Souter

IN THE UTAH COURT OF APPEALS

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Geri Pasquin,
Petitioner and Appellant,

v.

Candice M. Souter; and Kory Pasquin, deceased,
Respondents and Appellee.

AMENDED MEMORANDUM DECISION1
(Not For Official Publication)

Case No. 20010717-CA

F I L E D
(January 16, 2003)

2003 UT App 10

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Third District, Salt Lake Department

The Honorable Ronald E. Nehring

Attorneys: Brian W. Steffensen and William J. Middleton, Salt Lake City, for Appellant

Robert H. Copier, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Jackson, Greenwood, and Thorne.

THORNE, Judge:

Petitioner Geri Pasquin appeals from the judgment of the trial court denying her petition for visitation rights concerning her granddaughter. We affirm.

Pasquin asserts two arguments on appeal. Pasquin first argues that the findings underlying the trial court's conclusions concerning her granddaughter's best interests and Pasquin's token efforts are not supported by the evidence. "However, a party challenging a trial court's factual finding must do more than merely reargue the evidence supporting his or her position; rather, the party is required to first marshal the evidence in support of the finding." Sigg v. Sigg, 905 P.2d 908, 913 n.7 (Utah Ct. App. 1995) (citing Shepard v. Shepard, 876 P.2d 429, 432 (Utah Ct. App. 1994)); see In re Adoption of B.O., 927 P.2d 202, 205 (Utah Ct. App. 1996) ("To obtain reversal on clear error grounds, an appellant must marshal all the evidence supporting the challenged findings and then show that despite that evidence,

the findings are clearly lacking in support." (quotations and citations omitted.)). "In the face of an appellant's failure to

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1. This amended memorandum decision replaces the memorandum decision issued in case number 20010717-CA issued on December 19, 2002.

properly marshal the evidence, our most likely action is summary affirmance of the challenged . . . decision." Neely v. Bennett, 2002 UT App 189,¶11, 51 P.3d 724, cert. denied, 2002 UT LEXIS 208.

Here, Pasquin does nothing more than reassert the arguments she made before the trial court. She wholly ignores her burden to marshal the evidence supporting the trial court's findings. Thus, we affirm the trial court's order finding that Pasquin made no more than a token effort to see her granddaughter during the period in question and also finding that a visitation order would not be in the granddaughter's best interest.

Pasquin's second argument centers on either the effectiveness of the Guardian ad Litem's (GAL) representation of her granddaughter or the report the GAL submitted to the trial court. However, "'[i]ssues not raised before the trial court are usually waived and cannot be raised on appeal.'" State v. Hansen, 2002 UT 114,¶13, 461 Utah Adv. Rep. 31 (alteration in original) (quoting State v. Labrum, 925 P.2d 937, 939 (Utah 1996)). Moreover, under our preservation rules, for an issue to be preserved for appeal, "'the record must clearly show that it was timely presented to the trial court in a manner sufficient to obtain a ruling thereon.'" Id. (emphasis omitted) (quoting Buehner Block Co. v. UWC Assocs., 752 P.2d 892, 894 n.2 (Utah 1988)).

In the instant case, Pasquin asserts that in asking the trial court to interview her granddaughter in camera she preserved this issue. We disagree. After reviewing the record, we conclude that Pasquin's request to the trial court cannot be interpreted as bringing her objection with the GAL to the trial court's attention.

The "mere mention" [to the trial court] of an issue without introducing supporting evidence or relevant legal authority does not preserve that issue for appeal. . . . "'[F]or 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.'"

State v. Brown, 856 P.2d 358, 361 (Utah Ct. App. 1993) (citations omitted). At trial, Pasquin merely asked the trial court to interview her granddaughter in camera, which at best qualifies as a "mere mention" of a possible problem with the GAL's report and can in no way be interpreted as raising the issue Pasquin argues on appeal to the trial court's consciousness. We therefore conclude that Pasquin failed to preserve this issue for appeal; thus, we do not address this claim.

Finally, pursuant to rule 33 of the Utah Rules of Appellate Procedure, Souter requests reimbursement of her attorney fees and double costs on appeal. However, not only are damages under rule 33 limited to egregious cases, see Porco v. Porco, 752 P.2d 365, 369 (Utah Ct. App. 1988), absent an appropriately developed legal argument, we will not address this claim. See Snow Flower Homeowners Ass'n v. Snow Flower, Ltd., 2001 UT App 207,¶14, 31 P.3d 576. Souter presented the following argument in support of her request for costs and fees on appeal:

Geri Pasquin's attorney should have told her there was no way to successfully challenge the trial court's findings of fact on appeal and she should have taken that "no" for an answer and declined to appeal.

Candance M. Souter is a mother with a young family who now asks to be awarded attorney's [sic] fees and double costs under [Utah Rule of Appellate Procedure] 33.

Souter's claim fails to incorporate any substantive argument or any citation to case law that would either support or better develop her argument. Moreover, assuming Souter had properly developed her argument, we do not award damages under rule 33 merely because a party's brief is insufficient, nor do we equate a party's lack of success with a frivolous argument. See Maughan v. Maughan, 770 P.2d 156, 162 (Utah Ct. App. 1989). Thus, we deny Souter's request for attorney fees and costs on appeal.

Accordingly, we affirm the trial court's order denying Pasquin visitation.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge