Andersen v. Andersen

• Decision Date: 25 August 2016
• Docket Number: No. 20150299–CA,20150299–CA
• Citation: 2016 UT App 182,379 P.3d 933
• Parties: Andrea Andersen, Appellee, v. Allen Andersen, Appellant.
• Court: Utah Court of Appeals

379 P.3d 933

2016 UT App 182

Andrea Andersen, Appellee,

v.Allen Andersen, Appellant.

No. 20150299–CA

Court of Appeals of Utah.

Filed August 25, 2016

Marshall Thompson, Salt Lake City, Attorney for Appellant

David C. Blum, Salt Lake City, Attorney for Appellee

Judge Kate A. Toomey authored this Opinion, in which Judges Stephen L. Roth and Michele M. Christiansen concurred.

Opinion

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.

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, 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 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 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 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.

¶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...