Rudman v. Rudman , 161 Utah Adv. Rep. 37 ( 1991 )

ORME, Judge

(concurring in the result in part):

While I otherwise concur in the court’s decision, I see the attorney and expert fee issue differently.

In my view, the court clearly and adequately found Mrs. Rudman was not in need of help with her attorney and expert fees. In this regard, the court noted not only her ability to continue working and her considerable success in business, typified by the $80,000 she received upon the sale of one of her businesses, but also that she had the wherewithal to afford the luxury of a second residence. Substantial evidence supports these findings. Given those findings, I see no error in the conclusion that someone of such means was not in need of help with her professional fees. Moreover, where there is an adequate finding of no need, I cannot see that any point would be served in requiring findings as to the reasonableness of fees, a matter that is of concern to the court only if the court has first determined that an award of fees should be made.

Nonetheless, I agree remand to reconsider the fee issue is proper in one respect. The trial court in this case determined Mrs. Rudman could bear her own fees, but it did so in contemplation of her receiving, inter alia, alimony of over $1,000 per month for several years. We have disturbed that award on appeal. If upon remand and consideration of the proper factors relative to alimony the court determines to award no alimony or less alimony, its view of Mrs. Rudman’s need for help with her attorney and expert fees may necessarily change. Thus, I would permit reconsideration of the fee question if the court on remand awards less alimony than before. Conversely, if it awards the same or greater alimony, its finding of no need for assistance with fees should stand and should not have to be revisited.

I wish also to add a comment about the Ramirez decision, treated at length in footnote 1 of the main opinion. Where the evidence does not compel a particular finding of fact, but would permit one or more inconsistent findings, I see real difficulty with an appellate court assuming the trial court must necessarily have found the facts in the way which is most consistent with the trial court’s judgment. Such an approach would subvert our error-correction function. If we start with the judgment and work backwards, we may well see a version of the facts which is consistent with the judgment as entered. However, a mistake of law would go undetected if the trial court, in evaluating the credibility of the witnesses who appeared before it, had actually determined the facts to be otherwise, but had erred in applying the law to those facts.

A simple example will highlight the difficulty. Suppose in a case turning on the application of the doctrine of estoppel that a trial court explicitly found facts establishing all requirements of that doctrine except detrimental reliance, as to which the findings were silent. In its conclusions of law, the court found estoppel to apply. Further assume the evidence was in conflict as to whether there had been any detrimental reliance. Under Ramirez, the appellate court is empowered to infer that the court actually found the facts as establishing reliance, since that would be consistent with the court’s judgment. But what if the court actually found, in weighing the evidence, that no detrimental reliance was occasioned by a particular course of conduct, but failed to say so in its findings because it incorrectly determined that reliance was no longer a necessary requirement under Utah law to establish the estoppel doctrine?

I think a safer course is steered by rather strict adherence to the requirement that adequate findings be made by the trial court, where required under Utah R.Civ.P. 52, with the only exception being where the failure to make findings is harmless, i.e., where “the facts in the record are ‘clear, uncontroverted, and capable of supporting only findings in favor of the judgment.’ ” Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987) (emphasis added) (quoting Kinkella v. Baugh, 660 P.2d 233, 236 (Utah 1983)).