Opinion
Case No. 20050981-CA.
Filed October 19, 2006. (Not For Official Publication).
Appeal from the Fourth District, Fillmore Department, 016700050 The Honorable Donald J. Eyre Jr.
A. Samuel Primavera, Riverton, for Appellant.
James K. Slavens, Fillmore, for Appellee.
Before Judges Greenwood, Davis, and Thorne.
MEMORANDUM DECISION
Betty York appeals a trial court order in a case involving the Utah Uniform Fraudulent Transfer Act (the Act). See Utah Code Ann §§ 25-6-1 to -14 (1998 Supp. 2006). York argues that there was insufficient evidence to support a finding of fraudulent transfer under Utah Code section 25-6-5, see id. § 25-6-5 (1998), and that there was "ample evidence to support a finding that there was [a] preexisting debt to [York,] which the [c]ourt simply ignored." We affirm.
Because York is challenging the trial court's findings of fact and the sufficiency of the evidence, she must also marshal the evidence in support of the findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be against the clear weight of the evidence.See Chen v. Stewart, 2004 UT 82, ¶ 19, 100 P.3d 1177 (imposing marshaling requirements on appellants challenging findings of fact); 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 69, 99 P.3d 801 (imposing marshaling requirements on appellants challenging sufficiency of evidence). Where an appellant fails to marshal the evidence, we assume that all findings are adequately supported by the record, see Chen, 2004 UT 82 at ¶ 19, and we need not consider the challenge to the sufficiency of the evidence, see Tanner v. Carter, 2001 UT 18, ¶ 17, 20 P.3d 332.
York has failed to marshal the evidence in support of the trial court's findings of fact, and therefore, we need not address her challenges to the sufficiency of the evidence to support the findings of fact. See Chen, 2004 UT 82 at ¶ 19; Tanner, 2001 UT 18 at ¶ 17. Taking the findings of fact as our starting point, we hold that they support the trial court's conclusion that a fraudulent transfer took place.
Under the Act, the transfer of an asset "is fraudulent . . . if the debtor made the transfer . . . with actual intent to hinder, delay, or defraud any creditor." Lakeside Lumber Prods. v. Evans, 2005 UT App 87, ¶ 9, 110 P.3d 154.
The existence of fraudulent intent is ordinarily considered a question of fact, and may be inferred from the existence of certain indicia of fraud enumerated in the Act. Indicia of fraud are facts having a tendency to show the existence of fraud, although their value as evidence is relative not absolute.
Id. (internal quotations and citation omitted). Indicia of fraudulent intent include several factors set forth in section 25-6-5(2), such as: "the transfer . . . was to an insider," "before the transfer was made . . . the debtor had been sued or threatened with suit," and "the transfer was of substantially all the debtor's assets." Utah Code Ann. § 25-6-5(2)(a), (d), (e);see also Lakeside Lumber Prods., 2005 UT App 87 at ¶ 9.
The trial court found that Richard Gardiner initiated an action against Interport, Inc. (Interport) and effectuated service on Interport in early August 2000. The trial court also found that Interport transferred its only asset of value to York and her husband — considered "insiders" under the Act — later that August. The trial court found that Interport continued to use the asset for its own purposes and that no value was given for the asset. York has not shown that the trial court's findings are clearly erroneous or that the trial court's findings fail to support its conclusion that a fraudulent transfer took place under the Act.
York misconstrues the term "insider" for purposes of the Act. As defined by the Act, an insider includes a "relative of a general partner, director, officer, or person in control of the debtor. . . ." Utah Code Ann. § 25-6-2(7)(b)(vii) (1998).
Accordingly, we affirm.
Pamela T. Greenwood, Associate Presiding Judge. James Z. Davis, Judge, William A. Thorne Jr., Judge concur.