Opinion
Case No. 20070066-CA.
Filed April 17, 2008. Not For Official Publication
Appeal from the Second District, Ogden Department, 034902394 The Honorable Parley R. Baldwin.
Philip C. Patterson, Ogden, for Appellant.
Paul H. Olds, Ogden, for Appellee.
Before Judges Greenwood, Davis, and McHugh.
MEMORANDUM DECISION
Carrie Ann Waldrop (Wife) filed for a divorce from William Frank Waldrop Jr. (Husband) in December 2003. In January 2004, the parties stipulated to, and the trial court ordered, a parent-time schedule that would apply during the pendency of the divorce proceedings. Some time thereafter, the trial court ordered Husband to commence paying temporary child support, alimony, and credit card debt.
In February 2006, the parties obtained a Decree of Divorce, with the issues of child custody, child support, alimony, marital debt, and marital property division reserved for further proceedings. The parties thereafter attempted mediation, which was ultimately unsuccessful. In December 2006, the trial court entered its Final Order on Bifurcated Divorce, resolving the reserved issues. Husband appeals this order, disagreeing with the parent-time and property division determinations.
Husband contests the trial court's award of parent-time, arguing that the court abused its discretion when it failed to award parent-time according to the agreement reached by the parties during mediation. Although the parties did attempt mediation prior to trial and apparently were able to agree tentatively on a new parent-time schedule during discussions, the parties were not able to agree on other issues and the parties ultimately left mediation without resolving any matters. By the time of trial, Wife no longer agreed to that proposed parent-time schedule but, instead, requested standard visitation, see Utah Code Ann. § 30-3-35 (2007). In resolving the issue, the trial court determined that the parent-time schedule that had been followed while the action was pending should continue; however, the court further instructed that the parties should follow the parent-time arrangement discussed during mediation if the parties agreed that such would be in the best interests of the children. Thus, the trial court did not override the parties' failed mediation agreement regarding parent-time. Instead, the court continued a parent-time schedule that had been previously agreed upon by the parties and also left the parties free to follow a different schedule if they could agree thereon; such deference is consistent with statutory guidelines, see id. § 30-3-33(1) (advising that "parent-time schedules mutually agreed upon by both parents are preferable to a court-imposed solution").
Husband also argues that in making the parent-time determination the trial court did not address the best interests of the children as required by Utah Code section 30-3-32, see id. § 30-3-32(1); see also id. § 30-3-32(2)(b)(i), (iii) (specifying what actions are in a child's best interests). The trial court specifically determined "that it is in the best interest of the children that the parties maintain their current parent-time schedule." Husband argues that such a recital is not enough and that the trial court's factual findings are insufficient to support this determination. But the trial court's ruling from the bench gives the required support for this determination, including the court's findings that (1) the advantage to the current parent-time schedule was that Husband had every Saturday, which "is one of the biggest days for a chance to have visitation — really time for parenting" and (2) the arrangement that the parties had originally made was "working." These findings are sufficient to show that the judge considered the best interests of the children, which include "hav[ing] frequent, meaningful, and continuing access to each parent," id. § 30-2-32(2)(b)(i), and "hav[ing] both parents actively involved in parenting the child,"id. § 30-2-32(2)(b)(iii). Further, although we acknowledge that the trial court is required to make factual findings on all material issues,see Howell v. Howell, 806 P.2d 1209, 1213 (Utah Ct.App. 1991), we also recognize that "[t]he trial court is not required to recite each indicia of reasoning that leads to its conclusions, nor is it required to marshal the evidence in support of them," Knickerbocker v. Cannon (In re Estate of Knickerbocker), 912 P.2d 969, 979 (Utah 1996).
Husband next alleges error with the trial court's refusal to provide him a financial offset for prior child support overpayments totaling $10,501.47. It is somewhat unclear as to whether Husband is attacking the sufficiency of the findings that support the trial court's determination or the sufficiency of the evidence that supports the trial court's findings. We assume he is attacking the sufficiency of the evidence because he acknowledges the existence of findings that would sufficiently support the trial court's determination:
The trial court found that the amount of equity in the 2002 Honda Odyssey vehicle awarded to [Husband] coupled with his failure to make all court ordered interim payments provided him surplus value beyond the value of the marital property awarded to [Wife]. The court found that this net surplus was sufficient to nullify [Husband's] child support overpayment claim.
As to the sufficiency of the evidence argument, there is ample evidence to support the trial court's findings. Wife testified that (1) the Honda Odyssey Husband received was worth $18,350 and the payoff amount on the vehicle was $6,989; (2) the vehicle Wife received was worth approximately $4,000 and she still owed $2,300 on it; and (3) Husband did not make several of his court-ordered temporary credit card payments of $329 per month. Wife's testimony was sufficient to support the trial court's determination regarding the child support overpayment.
In his argument, Husband focuses on his contradictory testimony and other evidence that was not presented that may have allowed the court to conduct more precise calculations on the matter. However, it is the role of the fact finder to determine credibility of conflicting testimony, and Husband should have provided the court with any documents he had that would have challenged Wife's testimony. In the absence of any such documents, with Wife testifying one way and Husband testifying another, the trial court's findings consistent with Wife's testimony are not clearly erroneous. See Utah R. Civ. P. 52(a) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."); State v. Pena, 869 P.2d 932, 935-36 (Utah 1994) ("For a reviewing court to find clear error, it must decide that the factual findings made by the trial court are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court's determination."). Furthermore, the division of property need not be exactly equal. See Sinclair v. Sinclair, 718 P.2d 396, 398 (Utah 1986) ("The law contemplates a fair and equitable, not an equal, division of the marital debts.").
Wife requests attorney fees based on her inability to pay.See Utah Code Ann. § 30-3-3(1) (2007). The parties were each ordered to pay their respective attorney fees below, notwithstanding the discussion of Wife's financial situation and needs. Wife does not challenge this determination; we therefore deny her request. See Bagshaw v. Bagshaw, 788 P.2d 1057, 1062 (Utah Ct.App. 1990). We also deny Wife's request to grant fees for Husband's "borderline frivolous" appeal.See Porco v. Porco, 752 P.2d 365, 369 (Utah Ct.App. 1998) ("We recognize that sanctions for frivolous appeals should only be applied in egregious cases, lest there be an improper chilling of the right to appeal erroneous lower court decisions.").
WE CONCUR: Pamela T. Greenwood, Presiding Judge, Carolyn B. McHugh, Judge.