Opinion
Case No. 20060643-CA.
Filed July 6, 2007. Not For Official Publication
Appeal from the Third District, Tooele Department, The Honorable Randall N. Skanchy.
D. Bruce Oliver, Salt Lake City, for Appellant.
Kevin P. Sullivan, Ogden, for Appellee.
Before Judges Greenwood, Billings, and McHugh.
MEMORANDUM DECISION
Stephen T. Baker Jr. appeals from an order on order to show cause requiring him to pay Shannon Ty Melvin, his former spouse, $26,589.93, Baker's share of unpaid child care and medical expenses incurred on behalf of their children. We affirm.
Baker asserts that this court should reverse the judgment against him because Melvin failed to comply with Utah Code sections 78-45-7.15 and 78-45-7.16. See Utah Code Ann. §§ 78-45-7.15(7), 78-45-7.16(2)(b)(i) (2002). Baker, however, failed to raise this argument before the trial court, and he fails to argue plain error or exceptional circumstances on appeal. "As a general rule, claims not raised before the trial court may not be raised on appeal."State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. One of the policy considerations for this rule is that, "`in the interest of orderly procedure, the trial court ought to be given an opportunity to address a claimed error and, if appropriate, correct it.'" Id. (quoting State v. Eldredge, 773 P.2d 29, 36 (Utah 1989)).
Utah Code section 78-45-7.15 states that a parent seeking reimbursement of medical expenses "shall provide written verification of the cost and payment of medical expenses to the other parent within 30 days of payment." Utah Code Ann. § 78-45-7.15(7) (2002). Section 78-45-7.16 states that "a parent who incurs child care expense shall provide written verification of the cost and identity of a child care provider to the other parent upon initial engagement of a provider and thereafter on the request of the other parent." Id. § 78-45-7.16(2)(b)(i) (2002).
Baker claims that he preserved this issue with the trial court when he testified that he never received proof of any of the bills at issue. This is a distinctly different argument, however, than the one Baker advances on appeal. The argument Baker presented to the trial court — that he did not receive copies of the bills that Melvin's husband provided to the court as exhibits and testified to mailing — required the trial court to make a credibility determination. In contrast, the claim that Melvin failed to comply with statutory requirements presents a different issue regarding the details of the information Melvin provided. Because the latter argument was not presented to the trial court, and Baker does not assert plain error or exceptional circumstances, we decline to further review it on appeal.
Baker next argues, briefly, that the judgment against him was against the weight of the evidence. Specifically, he states that the "judgment entered in this matter was not as a result of the evidence," and that the trial court "ignor[ed] the evidence." We decline to reach the merits of this argument because it was inadequately briefed and Baker has failed to marshal the evidence.
Rule 24 of the Utah Rules of Appellate Procedure requires briefs to set forth "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." Utah R. App. P. 24(a)(9). Appellate courts will generally not address arguments that are not briefed in accordance with rule 24. See, e.g., State v. Wareham, 772 P.2d 960, 966 (Utah 1989) (declining to address an issue raised on appeal because it was inadequately briefed). In this case, Baker has not cited any legal authority or provided any analysis on this issue.
Moreover, Baker has failed to marshal the evidence in support of the trial court's ruling. The "marshaling rule requires plaintiffs to `marshal all the evidence in favor of the facts as found by the trial court and then demonstrate that even viewing the evidence in a light most favorable to the court below, the evidence is insufficient to support the findings of fact.'" Save Our Sch. v. Board of Educ., 2005 UT 55, ¶ 10, 122 P.3d 611 (quoting Chen v. Stewart, 2004 UT 82, ¶ 76, 100 P.3d 1177). Instead of marshaling the facts in support of the judgment, Baker merely asserts that the ruling contradicted the evidence. This is insufficient to meet the marshaling requirement, and we therefore "assume that the evidence supports the trial court's findings." Chen, 2004 UT 82 at ¶ 80.
Baker also contends that Melvin's claim was barred by res judicata because "the parties had a trial set for `all claims' on December 1, 2005, which [should have] included . . . determin[ation of] any judgments for arrears." Claim preclusion, a "branch of res judicata[,] . . . precludes claims which `could and should have been litigated in a prior action, but were not raised.'" Krambule v. Krambule, 994 P.2d 210, 214 (Utah Ct.App. 1999) (emphasis omitted) (quoting Masters v. Worsley, 777 P.2d 499, 503 (Utah Ct.App. 1989)). Based on this doctrine, Baker asserts that Melvin's motion for an order to show cause regarding past-due child care and medical expenses could have, and should have, been brought in the December 2005 proceedings.
Baker concedes that he did not raise this argument before the trial court, and he attempts to argue plain error on appeal; however, he fails to do so successfully because he does not demonstrate error. First, the trial court was not precluded from considering the issue of arrears for medical and child care expenses because trial courts have "continuing jurisdiction to make subsequent changes or new orders for the custody of the children and their support, maintenance, health, and dental care, and for. . . obligations for debts as is reasonable and necessary." Utah Code Ann. § 30-3-5(3) (Supp. 2006). Second, the December 2005 order to show cause was initiated by the State, not Melvin, in an attempt to adjust Baker's child support. Because we conclude that Baker failed to demonstrate error, we will not further address his plain error argument regarding res judicata.
Finally, Baker asserts that it was plain error for the trial judge to fail to recuse himself in light of a letter that Melvin had sent to Governor Jon Huntsman that complained of the judicial system in general, and the trial judge in this matter in particular. This claim is untimely. Rule 63 of the Utah Rules of Civil Procedure governs disqualification of judges. Under rule 63(b), a party alleging bias, prejudice, or conflict of interest must file a motion to disqualify "after commencement of the action, but not later than 20 days after . . . the date on which the moving party learns or with the exercise of reasonable diligence should have learned of the grounds upon which the motion is based." Utah R. Civ. P. 63(b)(1)(B)(iii). In this case, Baker did not file a motion to recuse the trial judge, and he argues, for the first time on appeal, that the letter Melvin sent to Governor Huntsman affected the trial judge's ability to be fair. Baker's failure to timely file a motion to disqualify is fatal to his claim on appeal.
In summary, we decline to rule in favor of Baker on any of his arguments advanced on appeal. Moreover, because Melvin was awarded attorney fees in the trial court, and she substantially prevails on appeal, she is entitled to attorney fees incurred on appeal. See Lyngle v. Lyngle, 831 P.2d 1027, 1031 (Utah Ct.App. 1992) ("Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal."). Consequently, we affirm the trial court's order and remand for a determination of fees incurred on appeal.
Pamela T. Greenwood, Associate Presiding Judge
WE CONCUR: Judith M. Billings, Judge, Carolyn B. McHugh, Judge