Brown v. Babbitt

2015 UT App 161, 353 P.3d 1262, 789 Utah Adv. Rep. 12, 2015 Utah App. LEXIS 173, 2015 WL 3897789
CourtCourt of Appeals of Utah
DecidedJune 25, 2015
Docket20130641-CA
StatusPublished
Cited by8 cases

This text of 2015 UT App 161 (Brown v. Babbitt) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Babbitt, 2015 UT App 161, 353 P.3d 1262, 789 Utah Adv. Rep. 12, 2015 Utah App. LEXIS 173, 2015 WL 3897789 (Utah Ct. App. 2015).

Opinion

Memorandum Decision

DAVIS, Judge:

T1 Anthony Babbitt appeals the trial court's custody and parent-time orders regarding his and Kelsey Brown's child (Child). We affirm.

I. Sufficiency of the Notice of Appeal

12 As a threshold matter, we address Brown's argument that we lack jurisdiction over this case because Babbitt's notice of appeal failed to identify the decree of divoree-the court's final order in this case-as the order from which he appealed. Instead, Babbitt's notice of appeal identified the trial court's denial of his rule 52(b) motion to alter or amend the court's findings and the court's Findings of Fact and Conclusions of Law and Order. "[Tlimely filing of a notice of appeal is the only jurisdictional requirement for appellate review," and dismissal for other defects in the notice of appeal is a matter for the appellate court's discretion. Davis v. Central Utah Counseling Ctr., 2006 UT 52, ¶¶ 13-14, 147 P.3d 390. Because the notice of appeal was timely filed, we construe this argument as a challenge to the sufficiency of the notice of appeal.

13 "The purpose of the notification requirement is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case ... [because the opposing party] is entitled to know specifically which judgment is being appealed." Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 14, 199 P.3d 957 (alteration and omission in original) (citation 'and internal quotation marks omitted). "In determining whether the notification requirement has been met, we have long adhered to the policy that where the notice of appeal sufficiently identifies the final judgment at issue and the opposing party is not prejudiced, the notice of appeal is to be liberally construed." Id. {citation and internal quotation marks omitted). Thus, "[wlhere the appealing party's intent is clear and the appellee suffers no prejudice, the notice of appeal is sufficient." Id. ¶ 15; see, e.g., id. ¶ 16 (holding that an appeal was perfected, despite the appellant's failure to "explicitly reference" the relevant *1264 order in the notice of appeal, because the appellant's intent was clear and the appellee was not prejudiced); Speros v. Fricke, 2004 UT 69, ¶¶ 14-15, 98 P.3d 28 (rejecting the appellee's argument that the appellant's identification of a nonexistent January 11 order rather than the January 15 order from which the appellant actually intended to appeal rendered its notice of appeal inadequate); In re B.B., 2004. UT 39, ¶ 11, 94 P.3d 252 ("While the notice of appeal was not a model of clarity, it adequately notified the [petitioners] of the issues to be reviewed.").

[ 4 Although Babbitt did not explicitly appeal from the decree of divorcee, his intent to do so was clear. Furthermore, there is nothing to indicate that Brown was prejudiced by the technical deficiency of Babbitt's notice of appeal. Thus, we consider it appropriate to treat Babbitt's appeal as an appeal from the decree of divorce and to address it on its merits. See Davis, 2006 UT 52, ¶¶ 13-14, 147 P.3d 390.

II. Custody and Parent-Time Awards

$5 Babbitt challenges the trial court's award of primary physical custody to Brown and its parent-time determination. Babbitt argues, first, that the trial court's findings of fact in support of its rulings were not supported by the evidence and, second, that the trial court failed to make statutorily required findings in support of its decision to award Babbitt less parent-time than is outlined in the minimum statutory parent-time schedule. We will not disturb a trial court's findings of fact unless they are clearly erroneous. Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733. Findings "are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made." Id. (citation and internal quotation marks omitted). "We review the legal sufficiency of factual findings"-that is, whether the trial court's factual findings are sufficient to support its legal conclusions-"under a correction-of-error standard, according no particular deference to the trial court."" Id. (citation and internal quotation marks omitted).

A. Sufficiency of the Evidence

T6 Babbitt first argues that the evidence did not support a number of the findings that the trial court ultimately relied on in awarding custody to Brown and in fixing parent-time for Babbitt. He argues that "there are material discrepancies between the written Custody Evaluation Report ... and the testimony of various witnesses at trial, including [the custody evaluator] herself." Babbitt asserts that it was an abuse of the trial court's discretion to give more weight to the "stale" custody evaluation report than to the witnesses at trial who testified in his favor. He also asserts that the custody evaluator's testimony at trial differed in some respects from her report and that her trial testimony should have been considered more reliable because it was more recent. Finally, he takes issue with the trial court's decision to give weight to Brown's testimony over that of other witnesses.

17 Rather than analyze these issues in the text of his brief, Babbitt simply lists them and then refers us to "Addendum E" of his brief, a nineteen-page addendum in which he identifies the findings he takes issue with and selectively lists evidence relating to those findings. "It is improper for counsel to attempt to enlarge the page limit of the brief by placing critical facts in appendices." DeBry v. Cascade Enters., 879 P.2d 1353, 1360 n. 3 (Utah 1994). Furthermore, both Babbitt's brief and Addendum E take issue with the trial court's credibility determinations and its weighing of the evidence rather than addressing the sufficiency of the evidence to support the trial court's findings. "[I]t is the role of the fact finder to assess the credibility of witnesses and to weigh the evidence." Child v. Child, 2008 UT App 338, ¶ 3 n. 1, 194 P.3d 205, vacated in part on other grounds by 2009 UT 17, 206 P.3d 633 (per curiam). Thus, we give deference to the trial court's factual findings unless "they are in conflict with the clear weight of the evidence." Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (citation and internal quotation marks omitted). Because Babbitt attempted to cireumvent the briefing requirements by discussing the evidence in Addendum E rather than in the text of the brief, and because *1265 he reargues the evidence rather than demonstrating how the evidence is insufficient to support the trial court's findings, we will not disturb those findings. Cf. Warner v. Warner, 2014 UT App 16, ¶¶ 47-48, 319 P.3d 711 (holding that an appellant's attempt to marshal the evidence in an addendum was "inadequate to carry the burden of challenging a court's finding of fact on appeal because, among other things, [the appellant] violated the page limit rule, relied extensively on facts that have no apparent grounding in the ree-ord, and failed to even address the record evidence in support of the district court's finding").

B. Adequacy of the Findings

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lamb v. Lamb
2024 UT App 16 (Court of Appeals of Utah, 2024)
Cox v. Cox
2023 UT App 62 (Court of Appeals of Utah, 2023)
Erickson v. Erickson
2018 UT App 184 (Court of Appeals of Utah, 2018)
Lay v. Lay
2018 UT App 137 (Court of Appeals of Utah, 2018)
Judd v. Bowen
2017 UT App 56 (Court of Appeals of Utah, 2017)
Robertson v. Robertson
2016 UT App 55 (Court of Appeals of Utah, 2016)
Brown v. Babbitt
2015 UT App 291 (Court of Appeals of Utah, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
2015 UT App 161, 353 P.3d 1262, 789 Utah Adv. Rep. 12, 2015 Utah App. LEXIS 173, 2015 WL 3897789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-babbitt-utahctapp-2015.