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