2013 UT App 57

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

B RIGETTE J EANNE C OOK

,

Petitioner and Appellee,

v.

L ON A RDEN C OOK

,

Respondent and Appellant.

Memorandum Decision

No. 20120035

‐ CA

Filed March 7, 2013

First District, Brigham City Department

The Honorable Ben H. Hadfield

No. 084100428

F. Kim Walpole, Attorney for Appellant

Kirk M. Morgan, Attorney for Appellee

J UDGE J. F REDERIC V OROS J R

. authored this Memorandum

Decision, in which J UDGES W ILLIAM A. T HORNE J R

. and C AROLYN B. M C H UGH concurred.

VOROS, Judge:

¶1 Lon Arden Cook (Husband) and Brigette Jeanne Cook

(Wife) divorced in 2011. Husband appeals from the Decree of

Divorce, asserting six claims of error. We affirm.

¶2 Each of Husband’s six claims challenges a substantive ruling

of the trial court and contends that the trial court’s findings of fact

for that ruling were inadequate. See Hall v. Hall

, 858 P.2d 1018, 1021

(Utah Ct. App. 1993) (noting that a “trial court abuses its discretionCook v. Cook

20120035

‐ CA 2013 UT App 57 2 when it fails to enter specific, detailed findings” that support its

ultimate determinations). Because Husband failed to object to the

trial court’s findings, his attacks on those findings are unpreserved

and thus cannot succeed on appeal.

¶3 To preserve an appellate challenge to the adequacy of trial

court findings, an appellant must first have raised the objection in

the trial court with sufficient clarity to alert the trial court to the

alleged inadequacy. See 438 Main St. v. Easy Heat

, 2004 UT 72, ¶ 56,

99 P.3d 801. Lest an appellant overlook this requirement on appeal,

the appellate rules require the appellant’s opening brief to include,

with each issue statement, a “citation to the record showing that

the issue was preserved in the trial court” or “a statement of

grounds for seeking review of an issue not preserved in the trial

court.” See Utah R. App. P. 24(a)(5)(A), (B). Husband’s opening

brief does not comply with this requirement. Nor does the argu

‐

ment section of his brief contain citations showing that the claim

was actually preserved. See Salt Lake City Corp. v. Jordan River

Restoration Network

, 2012 UT 84, ¶ 101, 293 P.3d 300 (exercising

discretion to address the merits of a claim despite appellant’s

noncompliance with rule 24(a)(5)(A) because the argument section

of the opening brief contained citations showing that the claim was

in fact preserved). Moreover, our review of the record indicates

that, although proposed findings and conclusions were served on

Husband, he made no objection to them.

¶4 “The preservation rule applies to every claim, including

constitutional questions, unless a defendant demonstrates that

exceptional circumstances exist or that plain error occurred.”

Seamons v. Brandley

, 2011 UT App 434, ¶ 3, 268 P.3d 195 (citing State

v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346). Husband has not

complied with the preservation rule, nor does he invoke any

exception to it. We therefore do not consider the merits of his

challenges to the adequacy of the trial court’s findings. See Taylor

v. Taylor

, 2011 UT App 331, ¶ 7, 263 P.3d 1200 (refusing to consider

unpreserved challenge to the adequacy of findings). We turn then

to his challenges to the substance of the trial court’s rulings.Cook v. Cook

20120035

‐ CA 2013 UT App 57 3 ¶5 First, Husband contends that the trial court “abused its

discretion in awarding to [Wife] the custody of the minor children

contrary to the child custody evaluator’s recommendation.” We

review custody determinations under an abuse of discretion

standard, see Hudema v. Carpenter

, 1999 UT App 290, ¶ 21, 989 P.2d

491, giving the trial court “broad discretion” to make custody

awards, see Davis v. Davis

, 749 P.2d 647, 648 (Utah 1988). Husband

contends that the trial court abused its discretion in not ordering

joint physical and legal custody of the children. In determining

whether the best interests of a child will be served by ordering joint

legal or physical custody, the trial court must consider, among

other factors, “the past and present ability of the parents to

cooperate with each other and make decisions jointly.” See Utah

Code Ann. § 30

‐ 3

‐ 10.2(2)(h) (LexisNexis 2007).

¶6 Here, the trial court stated that, contrary to the child custody

evaluator’s “well intended” recommendation that the parties could

work together, the parties had in the course of the trial convinced

the court that they could not. In fact, Husband testified at trial, “I

feel strongly, at this point, that [Wife] and I are not going to be able

to get along.” In addition, Husband was held in contempt of court

for disregarding a court order relating to his parent

‐ time. He also

entered a plea in abeyance to a separate domestic violence charge

involving Wife. In light of this evidence, Husband has not shown

that the trial court abused its discretion in its custody award.

¶7 Second, Husband contends that the trial court “abused its

discretion and erred in its award of only standard parent

‐ time to

[Husband],” contrary to the recommendation of the child custody

evaluator’s report. “In custody matters, appellate courts generally

give the trial court considerable discretion because the trial court’s

proximity to the evidence places it in a better position than an

appellate court to choose the best custody arrangement.”

Trubetzkoy v. Trubetzkoy

, 2009 UT App 77, ¶ 6, 205 P.3d 891

(citations and internal quotation marks omitted). “That broad

discretion, however, must be guided by the governing law adopted

by the Utah Legislature [and we] review questions of statutoryCook v. Cook

20120035

‐ CA 2013 UT App 57 4 interpretation for correctness.” Id. (citations and internal quotation

marks omitted).

¶8 Here, the court ordered parent

‐ time as agreed by the parents

but with the statutory guidelines serving “as a minimum.” See Utah

Code Ann. § 30

‐ 3

‐ 33 (LexisNexis Supp. 2012). Parent

‐ time

conforming with the statutory guidelines is “presumed to be in the

best interests of the child” unless “a parent can establish

. . . by a

preponderance of the evidence that more or less parent

‐ time

should be awarded” under statutory criteria. Id. § 30

‐ 3

‐ 34(2)

(LexisNexis Supp. 2012). Husband’s brief does not address this

statutory presumption and in effect treats the child custody

evaluator’s recommendation as the governing presumption.

Accordingly, he has not demonstrated that the trial court abused

its discretion in awarding parent

‐ time “as a minimum” in

conformity with the statutory presumption. See Trubetzkoy

, 2009 UT

App 77, ¶ 18; Utah R. App. P. 24(a)(9).

¶9 Third, Husband contends that if we reverse the trial court’s

award of parent

‐ time, the joint physical custody child support

worksheet should be used to recalculate child support on remand.

Our decision to affirm the trial court’s award of parent

‐ time moots

this claim.

¶10 Fourth, Husband contends that the trial court “abused its

discretion in awarding to [Wife] the sum of $48,500.00 as her share

of the parties’ home equity and erred in only allowing [Husband]

less than one

‐ half of his premarital contribution to the home.”

Husband has not demonstrated an abuse of discretion. Husband

contends that he testified that he “contributed $37,000 from his

premarital funds to the marital home but was only given credit for

. . . $16,000.00.” Husband actually testified that he spent

approximately $38,000 “for the home, for the water shares[, and]

for the tractor.” He further testified that of the total amount,

$16,618 went toward the purchase of the marital home.

Accordingly, Husband’s claim is not supported by the record facts.Cook v. Cook

20120035

‐ CA 2013 UT App 57 5 ¶11 Fifth, Husband contends that the trial court should have

calculated Wife’s share of the pension and thrift savings plan

retirement as of “the time of the parties’ separation, not the date of

the trial.” However, Husband has not demonstrated that the trial

court’s ruling departs from legal requirements, because he has

cited no legal authority in support of his argument. See generally

Utah R. App. P. 24(a)(9) (“The argument [in the appellant’s brief]

shall contain the contentions and reasons of the appellant with

respect to the issues presented,

. . . with citations to the authorities,

statutes, and parts of the record relied on.”); State v. Thomas

, 961

P.2d 299, 305 (Utah 1998) (stating that an argument is inadequately

briefed “when the overall analysis of the issue is so lacking as to

shift the burden of research and argument to the reviewing court”).

In any event, “[i]t is well settled that the present value

. . . of

retirement accounts accrued during the marriage[] are marital

assets and, whenever possible, should be valued as of the time of

the divorce.” Dunn v. Dunn

, 802 P.2d 1314, 1319 (Utah Ct. App.

1990).

¶12 Finally, Husband contends that the trial court “failed to

make findings as to [Wife’s] need of financial assistance to pay her

attorney’s fees” and thus “abused its discretion in awarding

attorney’s fees” to Wife. As this claim appears to be almost entirely

a challenge to the adequacy of the trial court’s findings, it fails

under the preservation rule for the reasons stated above.

¶13 The judgment of the trial court is affirmed.