Cook v. Cook ( 2013 )

2013 UT App 57_________________________________________________________
THE UTAH COURT OF APPEALS
BRIGETTE JEANNE COOK,
Petitioner and Appellee,
v.
LON ARDEN COOK,
Respondent and Appellant.
Memorandum Decision
No. 20120035‐CA
Filed March 7, 2013
First District, Brigham City Department
The Honorable Ben H. Hadfield
No. 084100428
F. Kim Walpole, Attorney for Appellant
Kirk M. Morgan, Attorney for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGES WILLIAM A. THORNE JR.
and CAROLYN B. MCHUGH concurred.
VOROS, Judge:
¶1 Lon Arden Cook (Husband) and Brigette Jeanne Cook
(Wife) divorced in 2011. Husband appeals from the Decree of
Divorce, asserting six claims of error. We affirm.
¶2 Each of Husband’s six claims challenges a substantive ruling
of the trial court and contends that the trial court’s findings of fact
for that ruling were inadequate. See Hall v. Hall, 858 P.2d 1018, 1021
(Utah Ct. App. 1993) (noting that a “trial court abuses its discretion
Cook v. Cook
when it fails to enter specific, detailed findings” that support its
ultimate determinations). Because Husband failed to object to the
trial court’s findings, his attacks on those findings are unpreserved
and thus cannot succeed on appeal.
¶3 To preserve an appellate challenge to the adequacy of trial
court findings, an appellant must first have raised the objection in
the trial court with sufficient clarity to alert the trial court to the
alleged inadequacy. See 438 Main St. v. Easy Heat, 2004 UT 72, ¶ 56,
99 P.3d 801. Lest an appellant overlook this requirement on appeal,
the appellate rules require the appellant’s opening brief to include,
with each issue statement, a “citation to the record showing that
the issue was preserved in the trial court” or “a statement of
grounds for seeking review of an issue not preserved in the trial
court.” See Utah R. App. P. 24(a)(5)(A), (B). Husband’s opening
brief does not comply with this requirement. Nor does the argu‐
ment section of his brief contain citations showing that the claim
was actually preserved. See Salt Lake City Corp. v. Jordan River
Restoration Network, 2012 UT 84, ¶ 101, 293 P.3d 300 (exercising
discretion to address the merits of a claim despite appellant’s
noncompliance with rule 24(a)(5)(A) because the argument section
of the opening brief contained citations showing that the claim was
in fact preserved). Moreover, our review of the record indicates
that, although proposed findings and conclusions were served on
Husband, he made no objection to them.
¶4 “The preservation rule applies to every claim, including
constitutional questions, unless a defendant demonstrates that
exceptional circumstances exist or that plain error occurred.”
Seamons v. Brandley, 2011 UT App 434, ¶ 3, 268 P.3d 195 (citing State
v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346). Husband has not
complied with the preservation rule, nor does he invoke any
exception to it. We therefore do not consider the merits of his
challenges to the adequacy of the trial court’s findings. See Taylor
v. Taylor, 2011 UT App 331, ¶ 7, 263 P.3d 1200 (refusing to consider
unpreserved challenge to the adequacy of findings). We turn then
to his challenges to the substance of the trial court’s rulings.
20120035‐CA 2 2013 UT App 57Cook v. Cook
¶5 First, Husband contends that the trial court “abused its
discretion in awarding to [Wife] the custody of the minor children
contrary to the child custody evaluator’s recommendation.” We
review custody determinations under an abuse of discretion
standard, see Hudema v. Carpenter, 1999 UT App 290, ¶ 21, 989 P.2d
491, giving the trial court “broad discretion” to make custody
awards, see Davis v. Davis, 749 P.2d 647, 648 (Utah 1988). Husband
contends that the trial court abused its discretion in not ordering
joint physical and legal custody of the children. In determining
whether the best interests of a child will be served by ordering joint
legal or physical custody, the trial court must consider, among
other factors, “the past and present ability of the parents to
cooperate with each other and make decisions jointly.” See Utah
Code Ann. § 30‐3‐10.2(2)(h) (LexisNexis 2007).
¶6 Here, the trial court stated that, contrary to the child custody
evaluator’s “well intended” recommendation that the parties could
work together, the parties had in the course of the trial convinced
the court that they could not. In fact, Husband testified at trial, “I
feel strongly, at this point, that [Wife] and I are not going to be able
to get along.” In addition, Husband was held in contempt of court
for disregarding a court order relating to his parent‐time. He also
entered a plea in abeyance to a separate domestic violence charge
involving Wife. In light of this evidence, Husband has not shown
that the trial court abused its discretion in its custody award.
¶7 Second, Husband contends that the trial court “abused its
discretion and erred in its award of only standard parent‐time to
[Husband],” contrary to the recommendation of the child custody
evaluator’s report. “In custody matters, appellate courts generally
give the trial court considerable discretion because the trial court’s
proximity to the evidence places it in a better position than an
appellate court to choose the best custody arrangement.”
Trubetzkoy v. Trubetzkoy, 2009 UT App 77, ¶ 6, 205 P.3d 891(citations and internal quotation marks omitted). “That broad
discretion, however, must be guided by the governing law adopted
by the Utah Legislature [and we] review questions of statutory
20120035‐CA 3 2013 UT App 57Cook v. Cook
interpretation for correctness.” Id. (citations and internal quotation
marks omitted).
¶8 Here, the court ordered parent‐time as agreed by the parents
but with the statutory guidelines serving “as a minimum.” See Utah
Code Ann. § 30‐3‐33 (LexisNexis Supp. 2012). Parent‐time
conforming with the statutory guidelines is “presumed to be in the
best interests of the child” unless “a parent can establish . . . by a
preponderance of the evidence that more or less parent‐time
should be awarded” under statutory criteria. Id. § 30‐3‐34(2)
(LexisNexis Supp. 2012). Husband’s brief does not address this
statutory presumption and in effect treats the child custody
evaluator’s recommendation as the governing presumption.
Accordingly, he has not demonstrated that the trial court abused
its discretion in awarding parent‐time “as a minimum” in
conformity with the statutory presumption. See Trubetzkoy, 2009 UT
App 77, ¶ 18; Utah R. App. P. 24(a)(9).
¶9 Third, Husband contends that if we reverse the trial court’s
award of parent‐time, the joint physical custody child support
worksheet should be used to recalculate child support on remand.
Our decision to affirm the trial court’s award of parent‐time moots
this claim.
¶10 Fourth, Husband contends that the trial court “abused its
discretion in awarding to [Wife] the sum of $48,500.00 as her share
of the parties’ home equity and erred in only allowing [Husband]
less than one‐half of his premarital contribution to the home.”
Husband has not demonstrated an abuse of discretion. Husband
contends that he testified that he “contributed $37,000 from his
premarital funds to the marital home but was only given credit for
. . . $16,000.00.” Husband actually testified that he spent
approximately $38,000 “for the home, for the water shares[, and]
for the tractor.” He further testified that of the total amount,
$16,618 went toward the purchase of the marital home.
Accordingly, Husband’s claim is not supported by the record facts.
20120035‐CA 4 2013 UT App 57Cook v. Cook
¶11 Fifth, Husband contends that the trial court should have
calculated Wife’s share of the pension and thrift savings plan
retirement as of “the time of the parties’ separation, not the date of
the trial.” However, Husband has not demonstrated that the trial
court’s ruling departs from legal requirements, because he has
cited no legal authority in support of his argument. See generally
Utah R. App. P. 24(a)(9) (“The argument [in the appellant’s brief]
shall contain the contentions and reasons of the appellant with
respect to the issues presented, . . . with citations to the authorities,
statutes, and parts of the record relied on.”); State v. Thomas, 961
P.2d 299, 305 (Utah 1998) (stating that an argument is inadequately
briefed “when the overall analysis of the issue is so lacking as to
shift the burden of research and argument to the reviewing court”).
In any event, “[i]t is well settled that the present value . . . of
retirement accounts accrued during the marriage[] are marital
assets and, whenever possible, should be valued as of the time of
the divorce.” Dunn v. Dunn, 802 P.2d 1314, 1319 (Utah Ct. App.
1990).
¶12 Finally, Husband contends that the trial court “failed to
make findings as to [Wife’s] need of financial assistance to pay her
attorney’s fees” and thus “abused its discretion in awarding
attorney’s fees” to Wife. As this claim appears to be almost entirely
a challenge to the adequacy of the trial court’s findings, it fails
under the preservation rule for the reasons stated above.
¶13 The judgment of the trial court is affirmed.
20120035‐CA 5 2013 UT App 57