Harris-Tripp v. Tripp

Harris-Tripp v. Tripp

IN THE UTAH COURT OF APPEALS

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Linda K. Harris-Tripp,
Respondent and Appellant,

v.

Lowell Bryce Tripp,
Petitioner and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010990-CA
 

F I L E D
(June 12, 2003)
 

2003 UT App 187

 

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Third District, Salt Lake Department

The Honorable Bruce C. Lubeck

Attorneys: Linda K. Tripp, West Valley City, Appellant Pro Se

Lowell Bryce Tripp, Riverton, Appellee Pro Se

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Before Judges Billings, Davis, and Orme.

ORME, Judge:

In challenging the trial court's findings, Appellant fails to marshal the evidence, provides no citations to the record, and provides no legal analysis to support her claims. Her brief is, therefore, not in accordance with our rules. See Utah R. App. P. 24 (setting forth the requirements for an appellant's brief); State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (stating that "rule 24(a)(9) [implicitly] requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority"); Butler, Crockett & Walsh Dev. Corp. v. Pinecrest Pipeline Operating Co., 909 P.2d 225, 230 (Utah 1995) (stating that "an appellant's failure to cite to the record in a brief is grounds for assuming regularity in the proceedings and correctness in the judgment appealed from"); State v. Larsen, 828 P.2d 487, 491 (Utah Ct. App. 1992) ("'A reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research.'") (citation omitted), aff'd, 865 P.2d 1355 (Utah 1993); Mountain States Broad. Co. v. Neale, 783 P.2d 551, 553 (Utah Ct. App. 1989) ("When the duty to marshal is not properly discharged, we refuse to consider the merits of challenges to the findings and accept the findings as valid.").

Moreover, Appellant provides no transcript of the trial(1) nor citations to the record indicating her objections were properly made to the trial court or that the issues raised on appeal were otherwise properly preserved. See Utah R. App. P. 24(a)(7) ("All statements of fact and references to the proceedings below shall be supported by citations to the record[.]"); State v. Penman, 964 P.2d 1157, 1162 (Utah Ct. App. 1998) ("'[An appellate court] simply cannot rule on a question which depends for its existence upon alleged facts unsupported by the record.'") (quoting State v. Wulffenstein, 657 P.2d 289, 293 (Utah 1982), cert. denied, 460 U.S. 1044, 103 S. Ct. 1443 (1983)). In the absence of a transcript, "[we] must assume the regularity of the proceedings below." State v. Litherland, 2000 UT 76,¶11, 12 P.3d 92 (quotations and citation omitted).

Due to the inadequacies in Appellant's brief and the incomplete record on appeal, we summarily affirm the trial court's decision. See, e.g., State v. Price, 827 P.2d 247, 250 (Utah Ct. App. 1992) (affirming judgment below where "[appellant's] brief does not enable us to locate errors in the record or demonstrate 'under applicable authorities' why the errors necessitate reversal") (citation omitted). Nonetheless, we "choose to further address [two of her] arguments in the interests of justice." State v. Gamblin, 2000 UT 44,¶8, 1 P.3d 1108. See also State v. Allen, 839 P.2d 291, 303 (Utah 1992) (stating that appellate courts need not "analyze and address in writing every issue or claim raised").

First, our review of the partial record available in this appeal convinces us that the trial court properly considered the child's welfare and that the court was well within its discretion to award Appellee "parent-time in accordance with the recommendation of the therapist." Contrary to Appellant's assertions, the trial court took note of the fact that, after the parties' separation, Husband "did nothing to be involved in the child's life." Consequently, the trial court found that "[i]t is not in the best interest of the child to have immediate parent-time." Nevertheless, the trial court determined that

the child should return to therapy, and the therapist should work with both parties to establish normal relationships between the child and [Husband]. If the therapist believes that gradual, structured parent-time can occur after further therapy, such ought to happen, with a goal of establishing the presumptive, statutory schedule.

Further, the trial court "ordered [Husband] to undergo a psychological assessment and complete whatever parenting and/or anger management classes are recommended by the therapist" and that "[Husband] should be responsible for the costs of [such] therapy."

The second claim we address is the contention that the trial court erroneously failed to recognize a common law marriage between the parties that came into effect before their solemnized eight-month marriage. An unsolemnized marriage is nevertheless

legal and valid if a court . . . establishes that it arises out of a contract between two consenting parties who

(a) are capable of giving consent;

(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;

(c) have cohabited;

(d) mutually assume martial rights, duties, and obligations; and

(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.

Utah Code Ann. § 30-1-4.5 (1998). The above factors must be shown by a preponderance of the evidence. See Hansen v. Hansen, 958 P.2d 931, 935 (Utah Ct. App. 1998). In the instant case, the trial court found that

[t]he evidence did not show that the parties held themselves out as and acquired a uniform and general reputation as husband and wife. They . . . each maintained a separate residence in their own name until shortly prior to the marriage. The parties each paid for their own housing, they did not have common bank accounts, and it was not established that they were known as husband and wife.

Appellant argues that the couple had demonstrated "marital rights, duties and obligations" during their ten-year relationship, but the only example she cites is that she planned a family reunion in 1991. Additionally, Appellant claims that the couple "had acquired a uniform and general reputation as husband and wife," but she provides no citations to the record to support this claim and offers no other evidence whatsoever that such was the case. Given the thin and unsubstantiated arguments Appellant presents on appeal, we agree with the trial court's conclusion that the existence of a common law marriage was not shown by a preponderance of the evidence.

Affirmed.

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Gregory K. Orme, Judge

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I CONCUR:

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James Z. Davis, Judge

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I CONCUR IN THE RESULT:

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Judith M. Billings,

Associate Presiding Judge

1. Nor did Appellant avail herself of the alternative procedures communicated to her by the clerk of this court.