CHRISTIANSEN FORSTER, Judge
Opinion Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 064402132 Danielle Marie Hartvigsen, Appellant Pro Se Richard Myers Hartvigsen, Appellee Pro Se JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred. CHRISTIANSEN FORSTER, Judge: ¶1 This is an appeal from a district court's division of property and award of alimony in the aftermath of a contentious divorce between Danielle Marie Hartvigsen and Richard Myers Hartvigsen. Danielle contends that the court abused its discretion when it imputed income to her, declined to accept her claimed expenses at face value, and credited Richard's unrebutted testimony about his intent to convey real property to himself and Danielle as joint tenants. Danielle also contends that she was denied due process. We affirm.
Assisted by Leslie W. Slaugh.
As is our practice in cases where both parties share a last name, we refer to the parties by their first names with no disrespect intended by the apparent informality.
BACKGROUND
¶2 Danielle and Richard married in 1995 and separated in 2005. Danielle filed for divorce in 2006, and in 2007 the district court entered a bifurcated decree of divorce, granting the divorce but reserving all other issues for later decision. After extensive litigation, a trial was held in 2012, and a supplemental decree of divorce was entered awarding Danielle a total property award of more than $1 million and alimony of $1,000 per month. Danielle filed several post-trial motions, including a motion for new trial which were denied in December 2015. Danielle appeals.
ISSUES AND STANDARDS OF REVIEW
¶3 Danielle first argues that the district court's alimony award was insufficient because the court exceeded its discretion by imputing income to her and in assessing her needs. We "review a district court's alimony determination for an abuse of discretion" and will not disturb its alimony ruling "as long as the court exercises its discretion within the bounds and under the standards [set by Utah appellate courts] and has supported its decision with adequate findings and conclusions." Dahl v. Dahl, 2015 UT 79, ¶ 84 (quotation simplified). ¶4 Danielle next argues that because Richard transferred a home that he purchased before marriage to the couple as joint tenants, the district court erred in determining that the home should be considered Richard's separate property. "Generally, district courts have considerable discretion concerning property distribution in a divorce proceeding and their determinations enjoy a presumption of validity." Id. ¶ 119 (quotation simplified). Accordingly, we will reverse only when "a clear and prejudicial abuse of discretion is demonstrated." Id. (quotation simplified). In reviewing the district court's decision, "we will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous, and we give due regard to the district court's superior position from which to judge the credibility of witnesses." Id. ¶ 121. ¶5 Finally, Danielle asserts that the district court erred in refusing to grant her motion for new trial because misstatements by Richard in the pretrial phase precluded her from obtaining funds necessary to hire an attorney and resulted in a denial of due process. "Generally, we afford trial judges wide latitude in granting or denying rule 59 motions . . . . Consequently, we generally disturb a trial court's grant or denial of a rule 59 motion only if it constitutes an abuse of discretion." Sanpete Am., LLC v. Willardsen, 2011 UT 48, ¶ 28, 269 P.3d 118. Furthermore, we will not reverse a denial of a motion for new trial unless the appellant can demonstrate a reasonable likelihood that the outcome would have been different in the absence of the alleged error. See Pullham v. Kirsling, 2018 UT App 65, ¶ 38, 427 P.3d 261.
ANALYSIS
I. Alimony
¶6 Danielle first asserts that the district court's alimony award should be reversed because the court abused its discretion in imputing income to her and in calculating her needs. ¶24 In evaluating Danielle's needs, the court found that her "monthly needs . . . are overstated and bear no relation to her historical needs or standard of living as of the date of separation" and that her "claimed need exceeds [Richard]'s take-home income earned during the parties' marriage." The court called out a number of expenses that it considered to be overstated. It also found that Danielle's "testimony regarding finances and expenses is not credible," that "[s]he failed to provide any credible evidence regarding expenses," and that her evidence contradicted itself. The court contrasted this with Richard's testimony regarding the marital standard of living, which it deemed to be "credible, detailed and specific." ¶25 We defer to the factfinder's advantaged position to weigh conflicting evidence and testimony, and we will not set aside findings of fact so long as evidence supports them. See Dahl v. Dahl, 2015 UT 79, ¶ 121; Bonnie & Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 18, 305 P.3d 196. Danielle's evidence of her financial needs was largely limited to her testimony and was generally unsupported by documentation. Yet, rather than address the district court's credibility determination, on which its assessment of her needs largely rested, Danielle asks us to reconsider the reasonableness of her expenses. We decline to do so, because she has failed to demonstrate that the district court exceeded its discretion in its credibility determination, or even to address that determination. Moreover, in fashioning an alimony award, Danielle fails to address the district court's consideration of the extensive support Richard provided Danielle from the date of the parties' separation to the trial, the large property settlement Danielle received in the divorce, and the court's finding that Danielle wrongly diverted marital funds from the parties' joint accounts at the time of their separation. ¶26 Because the district court did not exceed its discretion in imputing income to Danielle and in calculating her need, we decline to disturb its alimony award.
Danielle also challenges the court's calculation of Richard's income. Specifically, she claims that the court should have considered Richard's W-2 for 2004. Danielle has not demonstrated that this argument was preserved. See Utah R. App. P. 24(a)(5). In fact, it does not appear that the disputed W-2 was admitted into evidence by the district court; we have not been able to locate the W-2 in the record on appeal, and Danielle does not provide a record citation to where the W-2 may be found. We therefore do not address this claim further. See id. R. 24(a)(8); id. R. 24(a)(12)(C); id. R. 24(e).
Because the language of some statutes have changed, we cite to the version of the statutes in effect at the time of trial.
"Although this section of the Utah Code addresses imputation for the purposes of child support, it is also relevant to imputation in the alimony context." Fish v. Fish, 2010 UT App 292, ¶ 14 n.5, 242 P.3d 787.
The expert explained that the term "state of Utah metro area" referred to the region between Provo and Ogden.
Danielle cites one case for the proposition that, when determining "a recipient's 'income and resources,' [the government] must ensure that any such income or resources 'actually exist,' be not 'fictitious' or 'imputed,' and 'be actually on hand or ready for use when it is needed.'" See Heckler v. Turner, 470 U.S. 184, 200 (1985). But that case concerned public assistance from the government, not alimony. Moreover, the quoted language was describing a Social Security Board "policy statement applicable to various aid programs" and was not a legal holding by the Court. Id.
II. Richard's Intent and Presumption of Gift
¶27 Danielle next contends that the district court erred by ruling that certain real property, owned solely by Richard before the marriage, remained his individual property despite being subsequently conveyed to Richard and Danielle as joint tenants. While a "transfer of otherwise separate property to a joint tenancy with the grantor's spouse is generally presumed to be a gift," Bradford v. Bradford, 1999 UT App 373, ¶ 22, 993 P.2d 887, it "is not conclusive [evidence] that a gift has been made." Jesperson v. Jesperson, 610 P.2d 326, 328 (Utah 1980). Generally, the gift must be "coupled with an evident intent to do so [to] effectively change[] the nature of that property to marital property." Bradford, 1999 UT App 373, ¶ 22. And "[t]he trial judge has wide discretion in the division of marital property (a matter of equity) and [the court's] findings will not be disturbed unless the record shows there has been an abuse of discretion." Jesperson, 610 P.2d at 328. ¶28 The two cases cited above are illustrative of the central role intent plays in dividing marital property. In Jesperson, the district court found that despite the fact that the parties' property was held in joint tenancy, "there was no intention by Plaintiff to create a one-half property interest in Defendant, nor any expectation by Defendant that he had received a one-half property interest." Id. The Utah Supreme Court upheld the district court's finding in light of the court's "wide discretion in the division of marital property." Id. In contrast, in Bradford, this court held that real property that a husband had conveyed to himself and his wife as joint tenants was marital property because the husband himself testified that he "intended at that time to give a one-half interest in the home to his wife" and nothing in the record indicated otherwise. See Bradford, 1999 UT App 373, ¶ 24. ¶29 In this case, Richard owned the property in question prior to the marriage but then conveyed it to himself and Danielle as joint tenants. At the divorce trial, Richard was asked why the house had been retitled jointly:
Q. Okay. You heard [Danielle] testify that the Woodland Hills house was titled jointly. How did that occur?
A. Ahhh, I believe it was several months after we were married she demanded that I put her name on the deed for the Woodland Hills house. She claimed that if I wouldn't do that she was going to leave me and leave the marriage.
Q. So you acquiesced in that?
A. I did.
Q. Did you intend for your premarital contribution to be a gift to her?
A. No, I didn't.
. . .
Q. Do you consider your premarital contribution [of the Woodland Hills house proceeds] to be a gift to [Danielle]?
A. No, I don't.
Q. Do you consider it a gift to the marriage?
A. No.
¶30 The court explained in its ruling on Danielle's motion for new trial that "there was no evidence of intent by [Richard] to
change the nature of his separate property contributions to marital property" and that the court had therefore exercised its equitable discretion to award Richard his premarital property.
In light of Richard's testimony that he added Danielle's name to the deed for the property only because Danielle threatened to leave him if he did not and the lack of any additional evidence, apart from the transfer itself, indicating that Richard intended to make a gift of the property, we conclude that the district court did not exceed its discretion in determining that Richard's property retained its premarital character.
Danielle was also awarded premarital assets in the amount of $8,482.
III. Due Process
¶31 Finally, Danielle contends that she "was denied due process by [Richard's] misstatements to the court regarding financial matters, which resulted in [Danielle] having inadequate support to employ counsel" because the district court refused to release funds from the estate to her. She claims that this was a denial of due process and that the district court therefore should have granted her motion for new trial. ¶32 First, we are skeptical of Danielle's claim that the funds she had prior to trial were insufficient for her to hire legal counsel. Danielle concedes that in addition to her temporary alimony award, the court released $10,000 to each party on two separate occasions. And the parties further stipulated to a release claim, and we therefore conclude that Danielle has failed to carry her burden of persuasion on this issue.
At the outset of the divorce proceedings, the commissioner made a temporary award of $3,915 per month, of which half was child support and half was alimony. In arriving at this amount, the commissioner imputed to Danielle an after-tax income of $1,850 per month.
We note that Danielle does not allege the court refused to allow her to be represented by counsel at her own expense. In such a case, our analysis would be different.
Danielle also includes three claims regarding the adequacy of the record in her briefing of this issue. In all three, she essentially argues that a new trial should be granted due to the district court's failure to record certain post-trial proceedings. We reject these claims because Danielle did not show "that the issue was preserved" or provide a "statement of grounds for seeking review of an issue not preserved." See Utah R. App. P. 24(a)(5). Moreover, as the appellant, Danielle bears the burden of establishing a record adequate to support her claims on appeal. See, e.g., Reperex, Inc. v. May's Custom Tile, Inc., 2012 UT App 287, ¶ 13, 292 P.3d 694; see also Utah R. App. P. 11(e)(2). This burden entails either providing a transcript of the relevant hearings or, where no transcript can be made, reconstructing the proceedings through the participants' affidavits. See id. R. 11(g); see also Ajinwo v. Chileshe, 2018 UT App 39, ¶ 3, 420 P.3d 51. Danielle has not done the latter, and thus unable to carry her burden on appeal of showing prejudicial error.
CONCLUSION
¶35 The district court's factual findings supporting its imputation of income to Danielle and its assessment of her needs were supported by sufficient evidence and not clearly erroneous. Similarly, the court did not exceed its discretion by crediting Richard's testimony regarding his separate premarital property and awarding him a credit for the value of that property. Further, we reject Danielle's due process claims because she has failed to adequately brief them. Accordingly, we affirm the 17 district court's findings and conclusions and its denial of Danielle's motion for new trial.