Sawyers v. Sawyers

558 P.2d 607 (1976)

Ann J. SAWYERS, Plaintiff and Respondent,
v.
Don M. SAWYERS, Defendant and Appellant.

No. 14461.

Supreme Court of Utah.

December 13, 1976.

Don M. Sawyers pro se.

Bruce E. Humberstone, Salt Lake City, Udell R. Jensen, Nephi, for plaintiff and respondent.

WILKINS, Justice:

This is an appeal by defendant from a judgment and order of the District Court in and for Salt Lake County, dated January 8, 1976, upon petitions by each of the parties to modify the terms of a decree of divorce dated November 27, 1976.

Plaintiff was represented by counsel and defendant appeared before this court pro se, though he was represented by counsel in the district court. In his brief, defendant disagrees with many of said court's findings of fact, conclusions of law, and modified decree. He seeks to have the lower court's decision entitled "Judgment and Order Upon Petitions for Modification of Decree of Divorce Of Both Parties" reversed in several particulars.

The clerk of the district court transmitted to this court pursuant to the designation "all of the original papers ... on file herein ...". Nothing else has been received by this court in this matter except the briefs filed by the parties. No certificate was filed with the clerk of the district court as required by Rule 75(a)(1), Utah Rules of Civil Procedure, that a transcript of evidence had been ordered or that defendant did not intend to rely on said transcript. And no copy of the transcript by the reporter in the district court was included in this record on appeal, nor is an abstract of testimony presented for this court's consideration.

Basically, the defendant's brief consists of a statement of facts and a commentary on the nineteen paragraphs of the district court's judgment and order, which commentary substantially consists of disagreement with said court's rulings and an attempt to have this court consider facts which defendant claims existed subsequent to the date of the lower court's judgment.

Plaintiff in her brief disputes the matters raised by defendant which are at variance with the findings of fact, conclusions of law, and judgment and order of the district court.

The defendant in oral argument before this court stated that he was primarily appealing the award of judgment to plaintiff of (1) $750.00 for attorney's fees (agreeing though to an amount of $300.00) and (2) $578.00 for delinquent alimony and child support.

Defendant's contentions and points on this appeal involve factual matters which this court cannot resolve or undertake to determine without a transcript of the testimony.^[1]

Appellate review of factual matters can be meaningful, orderly, and intelligent only in juxtaposition to a record by which lower courts' rulings and decisions on disputes can be measured. In this case without a transcript no such record was available, and therefore no measurement of the district court's actions can be made as urged upon us by defendant.

And, as under elementary principles of appellate review we "... presume the findings of the court to have been supported by admissible competent, substantial evidence ...",^[2] we affirm. Costs to plaintiff.

HENRIOD, C.J., and ELLETT, CROCKETT and MAUGHAN, JJ., concur.

NOTES

[1] Mitchell v. Mitchell, 527 P.2d 1359 (Utah 1974).

[2] Bagnall v. Suburbia Land Company, 542 P.2d 183 (Utah 1975) and cases cited therein.