Case Information
*1
T HE U TAH C OURT OF A PPEALS
A NDREA A NDERSEN , Appellee, v.
A LLEN A NDERSEN , Appellant.
Oрinion 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 J UDGE K ATE A. T OOMEY authored this Opinion, in which J UDGES S TEPHEN L. R OTH and M ICHELE M. C HRISTIANSEN concurred.
TOOMEY, Judge: 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.
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 divorcе 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. 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 cоurt sustained. The court ultimately received
roughly sixty exhibits, including Wife’s financial declaration, tax
returns, and information regarding the parties’ property.
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
,
2. At various times prior to trial, Husband represented himself or was represented by one of at least six differеnt attorneys. 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 cаre 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. 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 receivеd 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] 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.
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 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. “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 сlearly erroneous.”
Kimball v. Kimball
,
ANALYSIS 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
,
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 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 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. 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 tо 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 evidenсe 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. 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
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
,
II. Settlement Proceeds 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.”
“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
,
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
,
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 оr 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 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. 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
,
the City equated to a personаl 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.
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.
In
Naranjo v. Naranjo
,
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 аnd 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. 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 amоunt 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. Generally, we will not consider an issue on appeal unless
it has been preserved.
Patterson v. Patterson
,
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] 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 intо 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.” 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
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,
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. 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.
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 othеr 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
,
CONCLUSION 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 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 Husbаnd 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.