Andersen v. Andersen , 820 Utah Adv. Rep. 5 ( 2016 )

2016 UT App 182THE UTAH COURT OF APPEALS
ANDREA ANDERSEN,
Appellee,
v.
ALLEN ANDERSEN,
Appellant.
Opinion
No. 20150299-CA
Filed August 25, 2016
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 124400642
Marshall Thompson, Attorney for Appellant
David C. Blum, Attorney for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.
TOOMEY, Judge:
¶1 Allen Andersen (Husband) appeals from the trial court’s
divorce order awarding Andrea Andersen (Wife) child care
costs, child support, and a portion of the couple’s marital
property. Husband contends the court relied on insufficient or
improperly admitted evidence in making its child care and
support determinations and in imputing Husband’s income. He
also contends the court incorrectly concluded that Husband’s
proceeds from a settlement in a civil lawsuit were marital
property because the lawsuit was for Husband’s personal
injuries. We affirm the trial court’s order.
Andersen v. Andersen
BACKGROUND
¶2 Husband and Wife married in July 2007 and separated in
February 2012. 1 Wife filed a petition for divorce in April 2012,
seeking sole legal and physical custody of the couple’s two
children, child support, alimony, and the division of marital
property and debts. Husband responded pro se, and later,
through counsel, filed a counter petition for divorce seeking
among other things joint legal and physical custody of the
children and division of the parties’ assets and liabilities. 2
¶3 The parties stipulated that Wife would maintain sole
physical custody of the couple’s children. But in July 2014, the
commissioner certified the case for trial on the issues of child
support and care, distribution of property and assets, and
income.
¶4 Prior to trial, Husband, representing himself, filed a
witness list identifying 132 witnesses and hundreds of
unnumbered exhibits, including his financial declaration. Wife
objected to some of Husband’s exhibits as irrelevant, which
objection the trial court sustained. The court ultimately received
roughly sixty exhibits, including Wife’s financial declaration, tax
returns, and information regarding the parties’ property.
¶5 In March 2015, the trial court held a two-day bench trial.
Five witnesses, including Husband and Wife, testified, and the
court issued its determinations in a fifty-nine page memorandum
decision. With regard to Husband’s income and child support,
1. “[W]e view the facts in the light most favorable to the [trial
court’s] findings,” and therefore recite them accordingly. Kelley
v. Kelley, 2000 UT App 236, ¶ 18, 9 P.3d 171.
2. At various times prior to trial, Husband represented himself
or was represented by one of at least six different attorneys.
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the court noted that it had “great difficulty in attributing full
candor to [Husband] on financial matters.” According to the
court, because of inconsistent evidence, which included
Husband’s financial declaration, testimony, and tax returns, it
was “impossible to impute a fair amount [of income] with any
level of certainty.” In the end, the court ordered Husband to pay
child support “based on his imputed income of $5500 per
month.”
¶6 Regarding the cost of the children’s child care, the court
found that the cost varied based on the amount of time the
children spent at the care center. It also explained that, based on
Wife’s testimony, the day care the children attended did not
send a statement or bill. But the court noted the costs were
deducted directly from Wife’s paychecks, which she offered into
evidence.
¶7 Finally, the trial court distributed the parties’ marital
property, including, in relevant part, $130,000 that Husband
received in a settlement from Riverton City (the City) stemming
from a civil suit alleging the City violated the Fair Housing Act.
Husband argued the settlement proceeds were separate property
because they were received as the result of a personal injury. To
support his contentions, Husband provided a copy of his
amended complaint (the Amended Complaint) and a settlement
agreement (the Settlement Agreement). 3
¶8 Husband intended to call the attorney who represented
him in the action against the City to testify about the nature of
the suit, but because the attorney was unavailable when the
court was ready, it did not hear testimony from the attorney. The
court ultimately concluded the settlement proceeds were marital
3. Husband may have testified regarding the lawsuit, but
because he has not provided a full transcript of the trial, we must
assume that he did not.
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property because the “complaint sought only damages and
sought compensation for lost rents and costs and attorney fees
for bringing the action” and therefore determined that Wife was
entitled to a portion of the proceeds.
ISSUES AND STANDARDS OF REVIEW
¶9 On appeal, Husband raises three main issues challenging
the trial court’s determinations. First, Husband argues the court
erred by relying on Wife’s testimony and financial summary
when it awarded Wife arrearages in child care payments.
Second, he argues “the trial court plainly erred in imputing
[Husband’s] income without a sufficient evidentiary basis to do
so.” Finally, he contends the court erred when it determined the
settlement proceeds were marital property. Husband also
requests attorney fees and costs incurred on appeal.
¶10 “The trial court is afforded broad discretion to admit or
exclude evidence, and we ‘will disturb its ruling only for abuse
of discretion.’” Lawrence v. MountainStar Healthcare, 2014 UT App
40, ¶ 16, 320 P.3d 1037 (quoting Daines v. Vincent, 2008 UT 51,
¶ 21, 190 P.3d 1269). Moreover, “[a] challenge to the sufficiency
of the evidence concerns the trial court’s findings of fact. Those
findings will not be disturbed unless they are clearly erroneous.”
Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (citation
and internal quotation marks omitted). “This court will approve
changes in a trial court’s property and debt distribution only if
there was a misunderstanding or misapplication of the law
resulting in substantial and prejudicial error, the evidence
clearly preponderated against the findings, or such a serious
inequity has resulted as to manifest a clear abuse of discretion.”
Finlayson v. Finlayson, 874 P.2d 843, 847 (Utah Ct. App. 1994)
(citations and internal quotation marks omitted). As a threshold
matter, however, we must consider Wife’s response that the trial
court’s findings and order should be summarily affirmed
because Husband has failed to provide a complete record, which
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is necessary for appellate review. Specifically, she contends this
court “should decline to consider Husband’s appeal” because
Husband has failed “to provide all of the transcripts from the
trial.”
ANALYSIS
¶11 Rule 11 of the Utah Rules of Appellate Procedure states:
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.
Utah R. App. P. 11(e)(2). In other words, “[p]arties claiming error
below and seeking appellate review have the duty and
responsibility to support their allegations with an adequate
record.” State v. Wetzel, 868 P.2d 64, 67 (Utah 1993). Accordingly,
“[w]here the record before us is incomplete, we are unable to
review the evidence as a whole and must therefore presume that
the [judgment] was supported by admissible and competent
evidence.” Sampson v. Richins, 770 P.2d 998, 1002 (Utah Ct. App.
1989) (citation and internal quotation marks omitted).
¶12 Husband has provided only a portion of the transcript of
the proceedings below. He attempts to justify this by contending
the “trial court in this case made unusually robust findings” and
he only provided a partial transcript “because he was unable to
afford a complete transcript.” The transcript provided begins
with Husband’s cross-examination of one of Husband’s
witnesses on March 5, 2015, the second day of trial. There is no
transcript of the first day and a half of the two-day trial, during
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which Husband, Wife, and three other witnesses testified.
Indeed, the partial transcript only includes one witness’s full
testimony and the parties’ closing arguments. We therefore
conclude that to the extent Husband challenges the sufficiency of
the evidence, particularly where the court’s findings rely on the
missing testimonies, those challenges must be rejected because
we cannot conduct a review of the record as a whole to
determine if the resulting findings of fact were clearly erroneous.
I. Sufficiency of the Evidence
¶13 First, Husband argues the court erred in its award of child
care expenses because Wife was required to offer written proof
of the costs of child care and because it relied solely on Wife’s
“improper summary of the child care expenses.” With respect to
the court’s determinations regarding the costs of child care,
relying on Wife’s testimony, the court found that the “children
attend a day care which does not send a statement or bill as
[Wife] works for Salt Lake County and it is somehow allied or
associated with the county.” The court also found that “[Wife]
has advised [Husband] of the amount of the monthly cost,
though it is not provided in written bill or statement form from
the day care provider and so [Wife] cannot provide it to
[Husband].” It noted that $416 per month was taken directly
from Wife’s paycheck and “goes directly to the day care
provider.” The court also indicated that “[t]he monthly cost, as
represented by [Wife], has varied with the amount of time the
children spend [there].” Finally, the court found Husband’s
“various receipts as to what he has paid unpersuasive, given his
reduced credibility and lack of clarity in various receipts and
money orders shown to the court. Some are not dated, some do
not have a payee.” The court ultimately accepted Wife’s
testimony regarding the cost of child care and then required her
to provide Husband “some form from the facility as to the
monthly cost to be paid” for future costs.
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¶14 In making its determinations, the court considered
Husband’s and Wife’s testimonies, Wife’s paycheck statements,
Wife’s summary of her expenses, and Husband’s receipts.
Although Husband argues Wife should have provided written
proof of child care expenses and the court should not have relied
on Wife’s summary of expenses, Husband cannot meet his
burden of showing the court’s factual findings are clearly
erroneous because we have no record of the parties’ testimonies.
For example, Husband argues that to properly enter her
summary of expenses into evidence, Wife “was required to
competently testify about the foundation for the underlying
documents.” But without a transcript of Wife’s testimony, we
have no way of knowing if there was testimony regarding
foundation. In addition, the court seemed to rely heavily on the
parties’ testimonies and even discredited Husband’s testimony
for lack of clarity and credibility. Further, we cannot agree with
Husband that the court erred by failing to require Wife to
provide written proof of child care costs because Wife provided
her paycheck statements demonstrating generally the amount of
child care costs and that those costs were taken out of her wages
regularly. And because Husband has not sufficiently challenged
Wife’s summary of expenses, we must presume it was properly
received into evidence by the court and that it provided written
proof of child care costs. Accordingly, we cannot conclude the
court erred in finding that Husband owed $11,883 in child care
arrearages.
¶15 Second, Husband contends “there was not a sufficient
evidentiary basis for the trial court to impute [Husband’s]
income at over $65,000 a year.” Again, the court’s determinations
regarding Husband’s income rely heavily on Husband’s
testimony at trial and the court’s credibility determinations
based on Husband’s interactions with the court. The court
determined there were large discrepancies between Husband’s
financial declaration and admitted evidence, which gave it
“great pause in believing [Husband] about his income.” Without
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the transcript of Husband’s testimony regarding his income,
Husband essentially asks this court to reweigh the documentary
evidence in the record, i.e., financial declarations and W-2s, and
determine, without the ability to review his testimony, that the
court improperly made credibility determinations and factual
findings. We refuse to do so. “Where the record before us is
incomplete, we are unable to review the evidence as a whole and
must therefore presume that the [judgment] was supported by
admissible and competent evidence.” Sampson, 770 P.2d at 1002(citation and internal quotation marks omitted). We therefore
reject Husband’s claims challenging the sufficiency of the
evidence.
II. Settlement Proceeds
¶16 Husband argues “the court erred in determining factually
and legally that the settlement from the civil rights lawsuit was
marital property.” He argues it was legal error not to conclude
that the settlement was for a personal injury. He further asserts
“the court’s determination that absolutely no part of the
settlement was to compensate for personal injury is unsupported
by any facts or findings.” Finally, Husband argues the trial court
“erred in deciding not to hear testimony from [his attorney in the
civil rights case] about the nature of the settlement.”
¶17 “There is no fixed formula upon which to determine a
division of properties in a divorce action . . . .” Naranjo v.
Naranjo, 751 P.2d 1144, 1146 (Utah Ct. App. 1988). Accordingly,
“[w]e afford the trial court considerable latitude in adjusting
financial and property interests, and its actions are entitled to a
presumption of validity.” Bradford v. Bradford, 1999 UT App 373,
¶ 25, 993 P.2d 887 (citation and internal quotation marks
omitted). Thus, “changes will be made in a trial court’s property
division determination in a divorce action only if there was a
misunderstanding or misapplication of the law resulting in
substantial and prejudicial error, the evidence clearly
preponderates against the findings, or such a serious inequity
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has resulted as to manifest a clear abuse of discretion.” Id.(citation and internal quotation marks omitted).
¶18 “In addressing the distribution of property between
divorcing spouses, the trial court must first determine whether
the assets in dispute are marital or separate property.” Keyes v.
Keyes, 2015 UT App 114, ¶ 28, 351 P.3d 90 (citing Dahl v. Dahl,
2015 UT 23, ¶ 121, 345 P.3d 566). “Marital property is ordinarily
all property acquired during the marriage . . . whenever
obtained and from whatever source derived.” Id. (omission in
original) (citation and internal quotation marks omitted); see also
Gardner v. Gardner, 748 P.2d 1076, 1078–79 (Utah 1988) (explaining
that “marital property encompasses all of the assets of every
nature possessed by the parties, whenever obtained and from
whatever source derived” (citation and internal quotation marks
omitted)). By contrast, “separate property, which may include
premarital assets, inheritances, or similar assets, will be awarded
to the acquiring spouse.” Keyes, 2015 UT App 114, ¶ 28 (citation
and internal quotation marks omitted).
¶19 Here, relying on Husband’s testimony, the Amended
Complaint, and the Settlement Agreement, the court determined
that Husband’s compensation was marital property. Specifically,
it concluded,
The First Amended Complaint does not mention
personal injury. The Settlement Agreement does
not use the words “personal injury” anywhere in
the document. The allegations included injuries
that could be considered personal, such as an
arrest, but the settlement did not describe whether
the payment was based solely on the Fair Housing
Act violations or other aspects of the litigation. The
court cannot guess the payment amount was
selected because of personal injury, again no claims
being directly styled personal injury. The complaint
sought only damages and sought compensation for
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lost rents and costs and attorney fees for bringing
the action. 4
The court declined to find that the settlement was for a personal
injury. But even if we assume it erred by failing to conclude that
violations of the Fair Housing Act are not considered personal
injuries, we are not convinced the court erred when it determined
the settlement was marital property.
¶20 This court has explained that compensation for a personal
injury can be either separate property or marital property,
depending on the nature of the damages. Naranjo, 751 P.2d at
1148. Specifically, “amounts received as compensation for pain,
suffering, disfigurement, disability, or other personal debilitation
are generally found to be the personal property of the injured
spouse in divorce actions.” Id.; see also Izatt v. Izatt, 627 P.2d 49,
51 (Utah 1981) (determining that a wife’s personal injury
compensation related to a medical malpractice suit that caused
her to have two cardiac arrests was her personal property). But
“money realized as compensation for lost wages and medical
expenses, which diminish the marital estate, are considered to be
marital property.” Naranjo, 751 P.2d at 1148; see also Bugh v. Bugh,
608 P.2d 329, 331–32 (Ariz. Ct. App. 1980) (concluding that
compensation awarded to an injured employee for lost wages
and medical expenses, and not pain and suffering, was marital
property).
¶21 So, even assuming Husband’s civil rights action against
the City equated to a personal injury claim, whether Husband’s
claims were for personal injuries is not determinative of whether
the compensation for those claims constitutes marital or separate
4. To the extent the court relied on Husband’s testimony, we
assume its determinations are accurate because, as discussed
above, Husband has offered no transcript of his testimony to
conduct a proper review.
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property. Rather, the court must look to the nature of the
personal injuries to determine whether the compensation is for
injuries usually considered so personal as to render it separate
property.
¶22 In Naranjo v. Naranjo, 751 P.2d 1144 (Utah Ct. App. 1988),
this court affirmed the trial court’s determination that the
defendant’s compensation for lost wages and medical costs for a
knee injury incurred in an industrial accident was marital
property. Id. at 1146, 1148–49. The defendant injured his knee
during his marriage to the plaintiff. The injury prevented
the defendant from working for nine months and required
numerous surgeries. Id. at 1146. At trial, he argued the
compensation was not marital property and that “he planned to
use the award proceeds to meet his future medical expenses and
to offset his potential reduced earning capacity.” Id. The
defendant further explained that he was unable to articulate how
much of the compensation was for pain and suffering “because
the judgment was awarded in Colorado, and, according to
Colorado procedure, the jury verdict was not broken into
general or special damages.” Id. at 1148. Nevertheless, the trial
court found that the defendant had failed to meet his burden of
showing the amount of the award attributable to pain and
suffering. Id. at 1146.
¶23 Like the defendant in Naranjo, Husband argues the
settlement was separate property, not marital. But Husband has
failed to set forth any evidence to show that any amount of the
settlement was for pain and suffering. The evidence Husband
offered regarding the settlement was his own testimony, the
Amended Complaint, and the Settlement Agreement. At most
the Amended Complaint alleged Husband was harassed by a
city official and was arrested. Husband’s prayer for relief in the
Amended Complaint only requested compensation for “lost
rental income,” “start-up costs lost,” “[r]easonable [a]ttorney
fees,” and civil penalties and punitive damages “in an amount
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sufficient to punish” the City for violating the Fair Housing Act.
At no point did it suggest Husband sought compensation for
pain and suffering, nor does it allege the City violated any law
that would warrant special damages that could be considered so
personal as to render them separate property. Furthermore, as
the trial court explained, the Settlement Agreement “did not
describe whether the payment was based solely on the Fair
Housing Act violation or other aspects of the litigation.”
¶24 At trial, Husband had arranged for his attorney in the
action against the City to testify regarding the lawsuit and
settlement. But because the attorney was not available when the
court was ready to hear his testimony, the attorney did not
testify. Husband now argues that because the attorney’s
testimony was relevant, the court erred by not hearing his
testimony. We cannot agree.
¶25 Generally, we will not consider an issue on appeal unless
it has been preserved. Patterson v. Patterson, 2011 UT 68, ¶ 12, 266
P.3d 828. To preserve an issue for appeal, a party claiming error
must object on the record to the purported error in a timely
fashion. Lamb v. B & B Amusements Corp., 869 P.2d 926, 931 (Utah
1993). The burden is on the appellant to ensure that the record he
compiles will adequately preserve his arguments for review.
Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1045 (Utah
1983). “One who fails to make a necessary objection or who fails
to insure that it is on the record is deemed to have waived the
issue.” Lamb, 869 P.2d at 931.
¶26 Here, after the examination of one witness concluded
earlier than expected, Husband’s counsel told the court that the
final witness, the attorney who represented Husband in his civil
lawsuit, was not available and was not scheduled to testify until
later in the afternoon. He offered to call the attorney, and
explained that the attorney was “the one that was actually
involved in the lawsuit and he’s just going to testify with regards
to the relationship with the status of that, whether [it involved a]
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personal injury or not. He’s the one that filed the lawsuit. . . .
[and] he’s probably the best one to give that testimony we have.”
The court responded, “So he’s going to say what? Tell me
specifically what you think he’ll say. That [the lawsuit] was for
personal injury?” Husband’s counsel replied, “That’s what his
testimony’s in relationship to, Your Honor. And more
specifically, because he’s the one that filed the lawsuit. If Your
Honor wants to not do that, I’m prepared to move into
closing . . . .” In response, the court indicated that the Amended
Complaint, which included a prayer for relief, and the
Settlement Agreement were clear on their face and explained
that the attorney’s characterization of the documents would not
make a difference. It expressed doubt that the question of
whether the settlement was for a personal injury was a question
of fact. Rather, the court stated the question is “probably more a
legal question” it could answer for itself. But the court asked
rhetorically “I don’t know what [the attorney] would say . . . I
mean, he could certainly have an opinion, but whether I should
even receive it, I’m not sure.” Wife’s attorney then emphasized
that the documentary evidence clearly showed the basis of the
lawsuit and that the attorney would only be able to “opine that
in his opinion this was personal injury.” Husband’s counsel did
not object and did not ask to wait for the attorney’s scheduled
testimony, but instead simply said, “At this point then, we
would rest.”
¶27 While the court indicated it did not think the attorney’s
testimony would have any bearing on its determinations
regarding the lawsuit, it had not yet made a definitive ruling
whether it would exclude the testimony or postpone
proceedings to hear it. At that point, Husband’s counsel
effectively capitulated. Indeed, rather than objecting or insisting
that the attorney testify, Husband’s counsel simply said he was
ready to move forward without the testimony. Specifically, he
stated, “If Your Honor wants to not [hear from the attorney], I’m
prepared to move into closing . . . .” Accordingly, because
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Husband did not object and acquiesced to not offering the
attorney’s testimony—in effect forestalling a final decision on the
issue by the court—he waived the objection and has not
preserved the issue for our review. See State v. McNeil, 2013 UT
App 134, ¶ 23, 302 P.3d 844 (“A claim is not preserved for appeal
if a party initially objects but later, while ‘the wheel’s still in
spin,’ abandons the objection and stipulates to the court’s
intended action.” (citation and footnote omitted)), aff’d, 2016 UT
3, 365 P.3d 699.
¶28 In any event, Husband fails to demonstrate that any harm
resulted from failing to hear the attorney’s testimony. The court
asked several times for a detailed explanation of the attorney’s
testimony. The only response was that the attorney was in the
best position to opine about the lawsuit and whether it was for
personal injury. Nothing suggested that the attorney would
testify regarding the settlement. Further, as explained above, the
question of whether the settlement was for personal injury is not
determinative of whether the settlement proceeds were marital
property, and nothing in the record suggests the attorney could
testify about a breakdown of the settlement proceeds, let alone
whether any part of the settlement was for Husband’s pain and
suffering. Furthermore, unless the City told him that the
settlement was compensation for personal injuries of the nature
Husband urges, as opposed to lost income or other economic
loss, to opine that the settlement was for personal injuries would
be outside the scope of his layperson testimony.
¶29 We therefore conclude the trial court did not err when it
determined that the settlement proceeds were marital property.
Further, because he failed to actually object to the court not
hearing the attorney’s testimony, Husband has not preserved the
issue for appeal. In any event, he has not met his burden of proof
to demonstrate that not hearing the attorney’s testimony was a
harmful error.
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III. Attorney Fees
¶30 Husband “requests that this Court award him his
attorney fees and costs on appeal.” In response, Wife argues that
because she was awarded attorney fees below and “will
substantially prevail on this appeal,” she should be awarded her
attorney fees incurred on appeal.
¶31 In divorce proceedings, “a [trial] court may order a party
to pay the costs, attorney fees, and witness fees, including expert
witness fees, of the other party to enable the other party to
prosecute or defend the action.” Stonehocker v. Stonehocker, 2008
UT App 11, ¶ 49, 176 P.3d 476 (alteration in original) (citation
and internal quotation marks omitted); accord Utah Code Ann.
§ 30-3-3 (LexisNexis 2012). “Both the decision to award fees and
the amount of such fees are within the trial court’s sound
discretion.” Stonehocker, 2008 UT App 11, ¶ 49 (citation and
internal quotation marks omitted). Further, “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 the
party on appeal.” Kimball v. Kimball, 2009 UT App 233, ¶ 52, 217
P.3d 733 (citation and internal quotation marks omitted).
¶32 In this case, the trial court awarded Wife costs and
attorney fees. Accordingly, because Husband has failed to
persuade us that the court erred in its award and Wife has
therefore prevailed on appeal, we must decline Husband’s
request to award his attorney fees and costs on appeal, and grant
Wife’s request.
CONCLUSION
¶33 In sum, because Husband failed to provide all the
necessary transcripts, we are unable to review the whole record
for sufficiency of the evidence regarding the court’s findings
about the child care and support costs and the imputation of
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Husband’s income. We therefore reject Husband’s challenges to
these findings. We also conclude that Husband has failed to
meet his burden of demonstrating the court erred in determining
the settlement proceeds from Husband’s suit against the City
were marital property. Although a suit alleging violations of
civil rights may be characterized as a personal injury lawsuit,
our court has explained that proceeds from a personal injury
lawsuit may be either separate or marital property, depending
on the nature of the relief sought. See Naranjo v. Naranjo, 751 P.2d
1144, 1146 (Utah Ct. App. 1988). Thus, because Husband sought
compensation for lost wages and rents—costs usually defined as
marital—we cannot agree with Husband that the district court
erred. Furthermore, we conclude Husband waived his objection
to the court’s decision to not hear the attorney’s testimony.
Finally, because Wife was awarded attorney fees below and has
prevailed substantially on appeal, she is entitled to attorney fees
and costs incurred on appeal. We therefore affirm the trial
court’s order and remand the case to the trial court for the
limited purpose of calculating and awarding Wife’s reasonable
attorney fees and costs incurred on appeal.
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