Vol. 23, No. 6, 11. Utah Standards of Appellate Review - Third Edition.

Authorby Norman H.Jackson and Lisa Broderick Thornton

Utah Bar Journal

Volume 23.

Vol. 23, No. 6, 11.

Utah Standards of Appellate Review - Third Edition

Utah Bar JournalVolume 23 No. 6Nov/Dec 2010Utah Standards of Appellate Review - Third Editionby Norman H.Jackson and Lisa Broderick ThorntonEDITOR'S NOTE: This article is the third installment of a series of articles that first appeared in Volume 23, No. 4 July/ August 2010 of the Utah Bar Journal.

D. Challenges in Specific Practice Areas

1. Challenges in Divorce Cases

a. Challenging Findings of Fact

(i) Clearly Erroneous Standard

Appellate courts give great deference to the trial court's findings of fact in divorce cases and will not overturn them unless they are clearly erroneous. See Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733; Thompson v. Thompson, 2009 UT App 101, ¶ 10, 208 P.3d 539; Leppert v. Leppert, 2009 UT App 10, ¶ 8, 200 P.3d 223; Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 9, 176 P.3d 476; Kelley v. Kelley, 2000 UT App 236, ¶ 18, 9 P.3d 171. A finding of fact will be adjudged clearly erroneous if it violates the standards set by the appellate court; is against the clear weight of the evidence; or the reviewing court is left with a definite and firm conviction that a mistake has been made, although there is evidence to support the finding. See Kimball, 2009 UT App 233, ¶ 14; Shinkoskey v. Shinkoskey, 2001 UT App 44, ¶ 10 n.5, 19 P.3d 1005; Kelley, 2000 UT App 236, ¶ 18.

(ii) Marshaling Cases

The following are cases involving divorce proceedings in which appellate courts have addressed the marshaling requirement: Kimball, 2009 UT App 233, ¶¶20-22 (finding husband and wife both failed to adequately marshal evidence in challenging property issues); Levin v. Carlton, 2009 UT App 170, ¶ 16 n.5, 231 P.3d 884 (holding wife failed to marshal all record evidence that supported challenged finding); Young v. Young, 2009 UT App 3, ¶ 12, 201 P.3d 301 (determining husband failed to adequately marshal evidence, rather he simply reargued issues raised below); Stonehocker, 2008 UT App 11, ¶ 9 n.4 (finding husband met minimum threshold of marshaling burden); Sweet v. Sweet, 2006 UT App 216, ¶ 6, 138 P.3d 63 (mem.) (finding wife failed to marshal all evidence in support of the finding and then demonstrate that evidence was legally insufficient to support the finding even when viewing it in light most favorable to trial court); Davis v. Davis, 2003 UT App 282, ¶ 10, 76 P.3d 716 (rejecting marshaling effort by husband who simply reargued evidence he presented at trial and ignored factual support for trial court's decision to award wife alimony); Wilde v. Wilde, 2001 UT App 318, ¶¶ 29-30, 35 P.3d 341 (holding appellant failed to meet her obligation to marshal evidence, and thus the court assumed the record supported the trial court's finding); Shinkoskey, 2001 UT App 44, ¶ 10 n.5 (finding husband failed to marshal evidence); Kelley, 2000 UT App 236, ¶ 19 (determining husband merely reargued his view of the evidence rather than marshaling other evidence supporting court's findings).

(iii) Examples of Fact Questions

(1) Whether the trial court properly valued the marital home. See Olson v. Olson, 2010 UT App 22, ¶ 9, 226 P.3d 751, cert. denied, 2010 Utah LEXIS 144 (Utah, July 1, 2010).

(2) Whether a person has been served with process. See Cooke v. Cooke, 2001 UT App 110, ¶ 7, 22 P.3d 1249.

(3) Whether husband was voluntarily underemployed and his earning capacity had not diminished. See Arnold v. Arnold, 2008 UT App 17, ¶¶ 5-6, 177 P.3d 89.

(4) Whether property was commingled such that separate property converted to marital property. See Keiter v. Keiter, 2010 UT App 169, ¶¶ 22-26, 235 P.3d 782; Thompson v. Thompson, 2009 UT App 101, ¶ 10, 208 P.3d 539 (discussing whether property is marital or separate).

(5) Whether a husband used money from forged or altered checks for family purposes. See Kimball v. Kimball, 2009 UT App 233, ¶ 22, 217 P.3d 733.

(6) Whether husband was in "receipt" of his social security benefits and whether the amount of the benefits was readily ascertainable. See Young v. Young, 2009 UT App 3, ¶ 12, 201 P.3d 301.

(7) Whether husband was able to pay alimony. See Leppert v. Leppert, 2009 UT App 10, ¶ 14, 200 P.3d 223.

(8) Whether a party misrepresented her Income in a mediation or during subsequent enforcement proceedings. See Arnold v. Arnold, 2008 UT App 17, ¶ 9, 177 P.3d 89.

(9) Whether a line of credit was debt of the family home or debt of the business. See Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 26, 176 P.3d 476.

(10) Whether husband had any active involvement in a limited liability company. See Levin v. Carlton, 2009 UT App 170, ¶ 16 n.5, 213 P.3d 884.

(11) Whether husband misappropriated funds from his children's accounts. See Shinkoskey v. Shinkoskey, 2001 UT App 44, ¶ 10, 19 P.3d 1005.

(iv) Adequacy of Trial Court's Factual Findings

To ensure that the trial court acted within its broad discretion, the facts and reasons for the court's decision must be set forth fully in appropriate findings and conclusions. See Connell v. Connell, 2010 UT App 139, ¶¶5, 13, 233 P.3d 836 (holding trial court's findings of fact regarding alimony were sufficient); Thompson v. Thompson, 2009 UT App 101, ¶ 15, 208 P.3d 539 (regarding premarital contributions to retirement account findings); Kunzler v. Kunzler, 2008 UT App 263, ¶ 15, 190 P.3d 497, cert. denied, 199 P.3d 970 (Utah 2008) (regarding property division findings);Arnold, 2008 UT App 17, ¶ 11 ("[A] district court exceeds its permitted discretion when it fails to make findings establishing an adequate and reviewable basis for its fee award.").

The trial court must make sufficiently detailed findings on each

factor to enable a reviewing court to ensure that the trial court's discretionary determination was rationally based upon the applicable factors. See Ostermiller v. Ostermiller, 2010 UT App 218, ¶ 7, -P.3d- (mem.) ("Detailed findings of fact and conclusions of law are necessary for this reviewing court to ensure that the trial court's discretionary determination . . .was rationally based." (internal quotation marks omitted)); Keiter v. Keiter, 2010 UT App 169, ¶ 17, 235 P.3d 782 (stating trial court's findings "'should be sufficiently detailed and Include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached'" (quoting Stonehocker, 2008 UT App 11, ¶ 16)); Mark v. Mark, 2009 UT App 374, ¶ 9, 223 P.3d 476 (concluding the absence of adequate findings of fact is a fundamental defect that warrants reversal unless the record is clear and uncontroverted such to allow appellate court to apply statutory factors as matter of law on appeal); Leppert v. Leppert, 2009 UT App 10, ¶ 14, 200 P.3d 223 (finding district court's findings of fact addressing parties' financial needs and husband's ability to pay were not sufficiently detailed to disclose process court used in setting alimony award); Hodge v. Hodge, 2007 UT App 394, ¶ 3, 174 P.3d 1137 (mem.) (concluding property distribution must be based upon adequate factual findings); Andrus v. Andrus, 2007 UT App 291, ¶ 19, 169 P.3d 754 (holding trial court's finding regarding husband's ability to pay attorney fees failed to show steps it took in reaching its decision).

Formal findings of fact greatly help the parties determine if a basis for appeal exists, and, if the appeal is taken, significantly aid the appellate court in its review. See Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 17, 176 P.3d 476 (noting that adequate findings are necessary for appellate courts to perform their assigned review function).

Appellate courts review the legal adequacy of findings of fact in divorce cases for correctness as a question of law. See Kimball v. Kimball, 2009 UT App 233, ¶ 13, 217 P.3d 733; Levin v. Carlton, 2009 UT App 170, ¶¶ 13, 20, 213 P.3d 884 (providing that findings of fact must be adequately supported by the evidence and the correct law); Young v. Young, 2009 UT App 3, ¶ 5, 201 P.3d 301; Jensen v. Jensen, 2009 UT App 1, ¶ 6, 203 P.3d 1020; Wall v. Wall, 2007 UT App 61, ¶ 7, 157 P.3d 341. If the findings are legally inadequate, the exercise of marshaling the evidence supporting the findings becomes futile and appellant need not marshal. See Williamson v. Williamson, 1999 UT App 219, ¶ 8 n.2, 983 P.2d 1103.

b. Challenging Discretionary Rulings

(i) Abuse-of-Discretion Standard

"'Trial courts may exercise broad discretion in divorce matters so long as the decision is within the confines of legal precedence.'" Connellv. Connell, 2010 UT App 139, ¶ 45, 233 P.3d 836 (quoting Childs v. Childs, 967 P.2d 942, 944 (Utah Ct. App. 1998)). Where the trial court may exercise broad discretion, we presume the correctness of the court's decision absent a clear and prejudicial abuse of discretion. See Trubetzkoy v. Trubetzkoy, 2009 UT App 77, ¶ 8, 205 P.3d 891 (noting that the trial court's discretion is so broad "that its actions enjoy a presumption of validity" (internal quotation marks omitted)), cert. denied, 215 P.3d 161 (Utah 2009). While trial courts have broad discretion, that discretion must be exercised under the standards and parameters set by appellate courts. See Connell, 2010 UT App 139, ¶ 5; Mark, 2009 UT App 374, ¶ 6 (stating that appellate courts will not disturb alimony ruling as long as court exercises discretion within bounds and standards set by appellate courts); Kimball, 2009 UT App 233...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT