Lamar v. Lamar , 722 Utah Adv. Rep. 47 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Richard T. Lamar, ) PER CURIAM DECISION
)
Petitioner and Appellant, ) Case No. 20111065‐CA
)
v. ) FILED
) (November 23, 2012)
Jodi A. Lamar, )
) 2012 UT App 326Respondent and Appellee. )
‐‐‐‐‐
First District, Logan Department, 094100347
The Honorable Kevin K. Allen
Attorneys: Richard T. Lamar, North Logan, Appellant Pro Se
R. Christian Hansen, Logan, for Appellee
‐‐‐‐‐
Before Judges Orme, Davis, and Voros.
¶1 Appellant Richard T. Lamar (Husband) appeals from the divorce decree entered
in this case. He claims that the district court erred by (1) ordering him to pay one half of
a $4,999 judgment against Appellee Jodi A. Lamar (Wife), (2) entering insufficient
findings of fact regarding Wife’s needs and earning capacity, (3) ordering Husband to
pay a portion of Wife’s attorney fees, and (4) ordering Husband to repay Wife for her
2008 federal tax refund.
¶2 Husband essentially challenges the sufficiency of the evidence supporting the
district court’s findings of fact and conclusions of law. “We review challenges to
findings of fact for clear error.” Henshaw v. Henshaw, 2012 UT App 56, ¶ 10, 271 P.3d
837. “A trial court’s factual determinations are clearly erroneous only if they are in
conflict with the clear weight of the evidence, or if this court has a definite and firm
conviction that a mistake has been made.” Kimball v. Kimball, 2009 UT App 233, ¶ 14,
217 P.3d 733 (citation and internal quotation marks omitted). However, in order to
successfully challenge the sufficiency of the evidence to support factual findings, an
appellant must first marshal all the evidence supporting the challenged findings and
then demonstrate why it is legally insufficient. See id. ¶ 20, n.51 “Even where [an
appellant] purport[s] to challenge only the legal ruling . . . if a determination of the
correctness of a court’s application of a legal standard is extremely fact‐sensitive, [the
appellant] also [has] a duty to marshal the evidence.” Chen v. Stewart, 2004 UT 82, ¶ 20,
100 P.3d 1177.
¶3 To enable the appellant to marshal the evidence and to allow an appellate court
to conduct a review of the record, an appellant must provide an adequate record. Rule
11(e)(2) of the Utah Rules of Appellate Procedures estates,
If the appellant intends to urge 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. Neither the
court nor the appellee is obligated to correct appellant’s
deficiencies in providing the relevant portions of the
transcript.
1
We explained the marshaling requirement in detail in Kimball v. Kimball, 2009
UT App 233, ¶ 20 n.5, 217 P.3d 733. There we stated that “if there is evidence
supporting a finding, absent a legal problem— a ‘fatal flaw’—with that evidence, the
finding will stand, even though there is ample record evidence that would have
supported contrary findings.” Id. Therefore,
[n]o matter what contrary facts might have been found from
all the evidence, our deference to the trial court’s pre‐
eminent role as fact‐finder requires us to take the findings of
fact as our starting point, unless particular findings have
been shown, in the course of an appellant’s meeting the
marshaling requirement, to lack legally adequate evidentiary
support.
Id.
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Utah R. App. P. 11(e)(2). Based upon Husband’s failure to provide an adequate record
and the resulting failure to satisfy the marshaling requirement, we do not consider the
issues regarding the sufficiency of the evidence to support the district court’s findings
of fact. Accordingly, we review only Husband’s claims that the findings are legally
insufficient to support the district court’s rulings and his claims of legal error. In doing
so, we accept the findings as made by the district court.
¶4 The district court found that Wife settled a case on behalf of her child and
received a check. The district court further found that both Husband and Wife
benefitted from the use of these funds. A Nevada court later entered a judgment against
Wife in the amount of the settlement check. Based upon the finding that both Husband
and Wife benefitted from the use of the funds, the allocation of the judgment to be paid
one‐half each by Husband and Wife was not erroneous.
¶5 Husband next argues that the district court’s findings of fact regarding Wife’s
financial need and earning capacity are not adequately supported by the evidence. As
indicated above, this argument is unavailing given Husband’s failure to provide a
transcript and resulting inability to properly marshal the evidence supporting the
findings he challenges. Husband also challenges the amount of the alimony award.
Without marshaling the evidence and demonstrating any error in the foregoing
findings, Husband is unable to demonstrate that the court abused its discretion in
making its alimony award.
¶6 Husband claims that the district court erred in requiring Husband to repay Wife
for her 2008 tax refund. The findings of fact included findings that in February 2009,
Wife’s 2008 tax refund was directly deposited into Husband’s bank account. During the
marriage, Husband maintained all bank accounts and Wife did not have a bank
account. Wife and Husband filed separate tax returns during the marriage. After March
2009, Husband denied Wife access to the bank accounts. Given the court’s findings,
Husband’s arguments that the tax refund did not accrue during the marriage and that it
had no value as of the time of the divorce petition’s filing because it had been spent are
without merit. The district court did not err in awarding Wife her 2008 tax refund.
¶7 Finally, Husband claims that the district court erred in its award of partial
attorney fees to Wife. Husband did not preserve any claim regarding the reasonableness
of Wife’s attorney fees by raising that claim in the district court. “To preserve an issue
20111065‐CA 3
for appellate review, a party must raise the issue at trial in a timely, specific fashion and
introduce supporting evidence or relevant legal authority in order to ‘put the [trial
court] on notice of the asserted error’ so that the trial court has an opportunity to correct
it.” Hale v. Big H Constr., 2012 UT App 283, ¶ 55 (quoting O’Dea v. Olea, 2009 UT 46,
¶ 18, 217 P.3d 704). Husband’s challenge to the findings regarding Wife’s need for
assistance also fails because, as previously noted, Husband has not satisfied his
marshaling duty in the absence of a trial transcript. Given the findings of fact regarding
Wife’s financial need and Husband’s ability to pay, and the presumed reasonableness of
the requested fees absent a preserved challenge, we conclude that the district court did
not err in making the award.
¶8 Accordingly, we affirm the divorce decree. We award Wife her reasonable
attorney fees incurred on appeal. “Generally, when the trial court awards fees in a
domestic action to the party who then substantially prevails on appeal, fees will also be
awarded to that party on appeal.” Leppert v. Leppert, 2009 UT App 10, ¶ 29, 200 P.3d 223(citation and internal quotation marks omitted). Because Wife prevailed on the issues on
appeal, she is entitled to an award of attorney fees on appeal. We remand to the district
court for a determination of the amount of reasonable fees incurred by Wife on appeal.
In making its determination, the district court “should also take into account the fact
that Wife was only granted partial attorney fees at trial.” Elman v. Elman, 2002 UT App
83, ¶ 43, 45 P.3d 176.
____________________________________
Gregory K. Orme, Judge
____________________________________
James Z. Davis, Judge
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J. Frederic Voros Jr., Judge
20111065‐CA 4