Opinion
Case No. 20080415-CA.
Filed December 11, 2008. Not For Official Publication
Appeal from Fourth District, Provo Department, 070402784 The Honorable Samuel D. McVey.
Wendy J. Lems, Midvale, for Appellant.
Kristin B. Gerdy and Ronald D. Wilkinson, Orem, for Appellee.
Before Judges Greenwood, Thorne, and Bench.
MEMORANDUM DECISION
Isabel Morkel appeals the three-year civil stalking injunction entered against her, arguing essentially that there was insufficient evidence to justify such a determination.
Morkel is the ex-mother-in-law of Appellee Michael Blocker. Now divorced from one another, Blocker and Morkel's daughter have a son with whom they still interact. The events pertinent to this appeal relate to these interactions as well as to other aspects of the divorce. After, among other things, receiving repeated phone calls and emails from Morkel, Blocker petitioned the district court for a three-year civil stalking injunction against Morkel. After a hearing, the court made the following findings: (1) "Morkel committed at least four incidents of stalking against Mr. Blocker . . . causing emotional distress to him and/or members of his household"; (2) Blocker's suffering was caused by Morkel's "outrageously intolerable conduct, which offends generally accepted standards of decency and morality"; and (3) three of the four incidents of stalking "were particularly invasive and offensive" because they were directed at Blocker's home. Accordingly, the district court granted Blocker's request and issued the injunction. This appeal followed.
Contemporaneously, Blocker asked the district court to enter a civil stalking injunction against Neil Morkel, Isabel Morkel's husband. However, the district court refused to enter the injunction against Mr. Morkel due to an insufficiency of evidence. Blocker does not appeal that denial in the present appeal, and Mr. Morkel is therefore not a party to this appeal.
On appeal, Morkel argues that there was insufficient evidence to justify entry of the civil stalking injunction against her, especially in light of the ongoing and "longstanding contentious family feud centering around divorce modification and child custody." In particular, Morkel challenges the district court's findings that (1) Morkel's conduct had caused Blocker to suffer emotional distress and (2) her behavior amounted to "outrageous and intolerable conduct." In order to properly challenge factual findings such as these, Morkel was required to marshal "`all of the evidence supporting the findings and show that despite the supporting facts, and in light of the conflicting or contradictory evidence, the findings are not supported by substantial evidence.'" Martinez v. Media-Paymaster Plus, 2007 UT 42, ¶ 17, 164 P.3d 384 (quoting Grace Drilling Co. v. Board of Review of Indus. Comm'n, 776 P.2d 63, 68 (Utah Ct.App. 1989)). Thus, Morkel was required "to construct the evidence supporting [Blocker's] position, and then `ferret out a fatal flaw in the evidence.'" Id. (quoting West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App. 1991)). This marshaling requirement is designed, in part, to ensure that we are able to meaningfully review the sufficiency of the evidence upon which the court relied and overturn only those factual determinations that lack the support of substantial evidence. See id.
Morkel did not meet this heavy burden. Instead of presenting, "in comprehensive and fastidious order, every scrap of competent evidence introduced [below] which supports the very findings [she now] resists,"see Majestic Inv. Co., 818 P.2d at 1315, Morkel simply attempts to reargue the position she espoused below. More specifically, Morkel asks us to reverse the district court's factual determinations because, as she contends, Blocker and his family were just as culpable as was she. In doing so, Morkel deprives this court of its opportunity to meaningfully review the district court's factual determinations. We therefore presume that the district court's findings are supported by substantial evidence and decline to review them further. See Martinez, 2007 UT 42, ¶ 19.
In a similar vein, Morkel argues the district court's findings are deficient given the totality of the circumstances. However, the failure to adequately marshal the evidence also defeats this argument.
Morkel cites Towner v. Ridgway, 2008 UT 23, 182 P.3d 347, to support her arguments. In Towner, decided just prior to entry of the stalking injunction against Morkel, our supreme court was faced with a similar challenge to the sufficiency of the evidence supporting issuance of a civil stalking injunction. See id. ¶ 1. The Towner court did not reach the sufficiency challenge, however, because it determined that "the district court [had] failed to make findings on the elements of the statute defining stalking." Id. Consequently, the Towner court "remand[ed] th[e] case to the district court for an entry of those findings." Id. ¶ 16. Morkel does not explicitly argue that the district court's findings of fact are inadequate under Towner, and does not request a remand for further findings, as was done in Towner. See id. Briefing on this potential argument is therefore inadequate, and we will not sua sponte undertake an analysis under Towner. See Valcarce v. Fitzgerald, 961 P.2d 305, 313 (Utah 1998); see also State v. Thomas, 1999 UT 2, ¶ 11, 974 P.2d 269 ("[A] reviewing court is entitled to have the issues clearly defined . . . and is not simply a depository in which the appealing party may dump the burden of argument and research." (first alteration in original) (internal quotation marks omitted)).
Finally, Blocker asks this court to grant him attorney fees incurred on appeal pursuant to rule 33 of the Utah Rules of Appellate Procedure. Rule 33 allows appellate courts to award attorney fees to the responding party "if the court determines that a[n] . . . appeal taken . . . is . . . frivolous." Utah R. App. P. 33(a). A frivolous appeal "is one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law."Id. R. 33(b). While Morkel's appeal was unsuccessful, we do not believe it to be frivolous. See Munns v. Munns, 790 P.2d 116, 123 (Utah Ct.App. 1990) ("[A]n unsuccessful appeal which is worthy of consideration is not an egregious case worthy of sanctions and, therefore, is not frivolous."). For this reason, we deny Blocker's request for attorney fees incurred on appeal.
Affirmed.
WE CONCUR: William A. Thorne Jr., Associate Presiding Judge, Russell W. Bench, Judge.