Cagatay v. Erturk ( 2013 )

2013 UT App 82_________________________________________________________
THE UTAH COURT OF APPEALS
NILUFER CAGATAY,
Petitioner and Appellant,
v.
KORKUT ERTURK,
Respondent and Appellee.
Memorandum Decision
No. 20120189‐CA
Filed April 4, 2013
Third District, West Jordan Department
The Honorable Andrew H. Stone
No. 084401493
Albert N. Pranno, Attorney for Appellant
Thomas J. Burns and A. Howard Lundgren,
Attorneys for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH
and MICHELE M. CHRISTIANSEN concurred.
VOROS, Judge:
¶1 Nilufer Cagatay (Wife) challenges several aspects of the
Decree of Divorce entered by the trial court. We affirm in part and
reverse and remand in part.
¶2 Wife first contends that the trial court abused its discretion
in awarding the parties joint physical custody of the parties’ minor
child. We review an award of physical custody for abuse of
Cagatay v. Erturk
discretion. See Davis v. Davis, 749 P.2d 647, 648 (Utah 1988). And to
the extent Wife asks us to review the facts supporting the custody
determination, we review the challenge for clear error. See id. The
factual premise of Wife’s contention is that “during the entirety of
the parties’ minor child’s life, [Wife] had been the child’s primary
caregiver.” This factual assertion contradicts the trial court’s
findings that “[b]oth parents participated in raising [the child]
before the divorce,” and that for a nearly two‐year period following
the parties’ separation, they “shared custody of their minor son on
an almost equal basis with [Korkut Erturk (Husband)] having him
three nights per week (Saturday, Sunday, and Monday) and [Wife]
having him four nights per week (Tuesday, Wednesday, Thursday,
and Friday).”
¶3 Wife neither cites the record in support of her own factual
claim that she was the primary caregiver nor marshals the evidence
supporting the findings of the court. Nor does she support with
citation to the record her assertion that “insufficient evidence was
presented at trial to support the court’s findings relating to
custody.” She does cite testimony supporting her position that a
joint custody arrangement was not in the child’s best interest, but
without marshaling the evidence in support of the trial court’s
findings, she cannot demonstrate that such evidence was legally
insufficient to support those findings. See Bailey v. Retirement Bd.,
Long Term Disability Program, 2012 UT App 365, ¶ 8, 294 P.3d 577(mem.); Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733;
West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.
App. 1991). Accordingly, Wife’s arguments fail to demonstrate that
the trial court’s findings were clearly erroneous and that its award
of joint custody was an abuse of discretion. See Utah R. App. P.
24(a)(9); State v. Lee, 2006 UT 5, ¶ 22, 128 P.3d 1179; State v. Thomas,
961 P.2d 299, 304–05 (Utah 1998).
¶4 Wife also challenges the trial court’s reliance on the report
produced by the custody evaluator. Wife argues that the trial court
erred by relying on the report because it was not admitted into
evidence and the custody evaluator did not testify at trial. She also
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argues that the court abused its discretion by adopting the
recommendations in whole, relying on the report to the exclusion
of other testimony.
¶5 In fact, Wife herself offered the report into evidence and it
was admitted. And while the trial court relied heavily on the
report, it did not adopt the recommendations in whole. The trial
court’s fifty‐two findings addressing custody make clear that the
court considered witness testimony in addition to the report and
considered whether the evaluator’s recommendations would be in
the best interests of the child. Furthermore, our case law states that
trial courts may rely on custody evaluations in making custody
determinations, even when the evaluator does not testify. See
Merriam v. Merriam, 799 P.2d 1172, 1175–76 (Utah Ct. App. 1990).
¶6 Wife next contends that the trial court erred in its valuation
and division of the marital property. Wife argues that the court
should not have ascertained the value of an apartment in Istanbul
based on the limited, “uncertain” nature of the evidence before it,
and that the court abused its discretion in not granting a new trial
on the basis of new evidence as to the apartment’s value. However,
Wife does not mention in her brief that earlier in the litigation the
court declared as a discovery sanction that the Istanbul apartment
was marital property and that Wife would be limited in the
evidence she could produce as to its value. See generally Utah R.
Civ. P. 37(b)(2)(A)–(B).1 Without mentioning—let alone challeng‐
ing—this earlier ruling, Wife cannot meet her burden of persuasion
on appeal to overcome the presumption “that a lower court has
conducted its affairs properly and that the outcome of its process
is sufficiently supported in law and fact,” State v. Robison, 2006 UT
65, ¶ 21, 147 P.3d 448.
1. This rule was amended effective November 1, 2011. We cite the
pre‐amendment version of the rule, which was in effect at the time
the relevant order was entered.
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¶7 Wife also argues that the trial court erred by including the
value of the entire Istanbul property as part of the marital estate
when the testimony was disputed as to whether the parties owned
the property and how much of the property they owned. Wife’s
argument involves a challenge to the findings of fact underlying
the court’s ultimate conclusion; we review such findings for clear
error, giving “due regard . . . to the opportunity of the trial court to
judge the credibility of the witnesses.” See Utah R. Civ. P. 52(a);
Keiter v. Keiter, 2010 UT App 169, ¶¶ 16–17, 235 P.3d 782; Thompson
v. Thompson, 2009 UT App 101, ¶ 10, 208 P.3d 539. Again, Wife has
failed to carry her burden on appeal.
¶8 Although the court had determined as a discovery sanction
that the apartment was marital property, after trial it reaffirmed
that ruling “independent of its prior order.” The court apparently
disbelieved Wife’s testimony that she owned only a portion of the
property and that she transferred it out of the marital estate before
trial. On appeal, Wife makes only broad assertions challenging the
court’s findings, with one relevant citation to the record. Wife does
not cite to evidence in the record to demonstrate what her owner‐
ship interest in fact was, nor does she otherwise demonstrate that
the trial court’s findings were clearly erroneous. “[T]he overall
analysis of the issue is so lacking as to shift the burden of research
and argument to the reviewing court.” See State v. Sloan, 2003 UT
App 170, ¶ 13, 72 P.3d 138 (citation and internal quotation marks
omitted). We will not do an appellant’s heavy lifting to demon‐
strate error on appeal. See Robison, 2006 UT 65, ¶ 21.
¶9 Wife next contends that the trial court erred in calculating
her income for purposes of child support. The court ordered
Husband to pay $13.05 per month in child support. Wife asserts
that the court attributed the net rent from an apartment in New
York City to Wife’s income for purposes of calculating child
support but awarded the apartment to Husband. Husband
responds that the trial court did not in fact attribute the rental
income to Wife. Our own review of the record indicates that Wife
is correct on this point. The parties’ 2011 financial declarations and
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the child support obligation worksheet that the court used to arrive
at the child support award demonstrate that $263 of rental income
was attributed to Wife for purposes of calculating child support.
This was error. Cf. English v. English, 565 P.2d 409, 412 (Utah 1977)
(modifying alimony award because, in part, the trial court had
attributed to husband net rents awarded to wife).
¶10 Finally, Wife contends that the trial court abused its
discretion by failing to consider the rent received from the New
York City apartment when determining whether to award alimony.
“In fashioning an alimony award, trial courts must consider the
statutory factors set forth in Utah Code section 30‐3‐5.” Connell v.
Connell, 2010 UT App 139, ¶ 9, 233 P.3d 836. Among these factors
are “the financial condition and needs of the recipient spouse,” “the
recipient’s earning capacity or ability to produce income,” and “the
ability of the payor spouse to provide support.” Utah Code Ann.
§ 30‐3‐5(8)(a) (LexisNexis Supp. 2012). “If a trial court considers
these factors in setting an award of alimony, we will not disturb its
award absent a showing that such a serious inequity has resulted
as to manifest a clear abuse of discretion.” Connell, 2010 UT App
139, ¶ 9 (citation and internal quotation marks omitted). In its
findings related to alimony, the trial court discussed the parties’
financial situation in broad terms. The court found that the parties
had “nearly identical income from their employment” and
“comparable monthly expenses, with comparable monthly
shortfalls between income and expenses.” In light of the error in
the child support calculation identified above, it is not clear
whether the court considered the change in rental income affected
by the divorce decree in making its alimony determination. To the
extent that the court incorrectly attributed rental income to Wife in
considering alimony, see English, 565 P.2d at 412, the court should
revisit the question of alimony on remand.2
2. We do not address other arguments advanced by Wife, because
we have determined that they either lack merit or are inadequately
(continued...)
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¶11 Accordingly, we affirm the Decree of Divorce except as to
the issues of child support and alimony. We remand for recalcula‐
tion of the child support award and, if appropriate, reconsideration
of alimony.3
2. (...continued)
briefed. See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (“[T]his
Court need not analyze and address in writing each and every
argument, issue, or claim raised and properly before us on
appeal.”).
3. Husband’s request for attorney fees on appeal is denied. See
Workman v. Workman, 652 P.2d 931, 934 (Utah 1982) (declining to
award attorney fees where divorce decree was modified on one
point but otherwise affirmed).
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