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Sauer v. Sauer

Court of Appeals of Utah

July 13, 2017

Paul R. Sauer II, Appellant,
v.
Pauline L. Sauer, Appellee.

         Third District Court, Salt Lake Department The Honorable Su J. Chon No. 134902556

          David Maddox, Attorney for Appellant.

          Pauline L. Sauer, Appellee Pro Se.

          Judge Michele M. Christiansen authored this Opinion, in which Judges J. Frederic Voros Jr. and Jill M. Pohlman concurred.

          CHRISTIANSEN, JUDGE:

         ¶1 Paul R. Sauer II and Pauline L. Sauer married in 1987 and separated in 2004. Paul filed for divorce in 2013. After a bench trial, the court issued a decree of divorce in November 2015, in which it awarded Pauline half of Paul's retirement benefits and alimony of $576 per month and ordered Pauline to reimburse Paul approximately $1, 438 for moving expenses and utility bills. Paul appeals, contending that the trial court abused its discretion in weighing the evidence, by imputing Pauline's needs, and by entering conclusions not supported by the evidence. We affirm.

         ¶2 Paul first contends that the trial court "abused its discretion when it stated that [he] failed to meet his burden of proof when offering evidence relating to debt and property distribution." Paul notes that the standard of proof applicable to civil actions is the preponderance of the evidence. See Morris v. Farmers Home Mutual Ins. Co., 500 P.2d 505, 507 (Utah 1972). Paul then asserts that because he "provided copious amounts of evidence in testimony and exhibits" that "went un-refuted by [Pauline], " the court abused its discretion when it determined that he had not met his burden of proof. In essence, Paul's argument is that because he presented uncontested evidence regarding the value of certain items, the trial court was required to find that evidence credible.

         ¶3 At trial, Paul entered into evidence a list of items he claimed Pauline had lost. The list included his estimates as to the value of each item. Pauline denied losing the items and did not present competing evidence of those items' value.

         ¶4 The court rejected Paul's estimates of the values of the items because he "did not testify that he had any experience in evaluation or training in that area." But the court also found that Paul had not demonstrated that Pauline was responsible for losing the items. Specifically, the court explained it was troubled that, although Paul "voluntarily stored" at the homes of acquaintances some of the items that later went missing, Paul nevertheless sought "to hold [Pauline] responsible for the loss of all of the personal property" on the list. The court also noted that Paul had never reported the loss of any property to law enforcement. The court ultimately found Paul's testimony "not credible as to why he would voluntarily store his property at other people's homes and then blame the resulting loss on [Pauline]."

         ¶5 Thus, the record shows that the trial court considered testimony by both Paul and Pauline before finding that Paul had failed to demonstrate that Pauline caused the loss of the listed items. Paul does not challenge that finding. Because the court rejected Paul's claim that Pauline was responsible for the loss of the items, it is irrelevant whether the court correctly valued them.[1]

         ¶6 Paul also asserts that the court's "pattern of disbelief" regarding his testimony and the evidence he proffered "is a clear abuse of discretion." But we give great deference to a trial court's determinations of credibility "based on the presumption that the trial judge, having personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties, is in a better position to perceive the subtleties at issue than we can looking only at the cold record." See State v. Calliham, 2002 UT 87, ¶ 20, 57 P.3d 220. Consequently, in "all actions tried upon the facts without a jury, findings of fact 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." Hale v. Big H Constr. Inc., 2012 UT App 283, ¶ 9, 288 P.3d 1046 (quoting Utah R. Civ. P. 52(a) (2012)) (brackets, ellipses, and internal quotation marks omitted). A court may well find that several pieces of evidence presented by a single party are not credible; such a "pattern of disbelief" does not, standing alone, prove clear error or otherwise constitute grounds for withdrawing the due regard we owe to the trial court. And, here, the trial court was not required to believe Paul simply because he presented more evidence than Pauline or because Pauline did not directly contradict his proffered testimony. See, e.g., Anderson v. State Farm Fire & Cas. Co., 583 P.2d 101, 104 (Utah 1978) ("The testimony of a party . . . is not conclusive, even if it is not contradicted . . . . [The party's] testimony is to be given such weight and credibility as the trier of fact finds reasonable under the circumstances." (emphasis added)); Fullmer v. Fullmer, 2015 UT App 60, ¶ 25, 347 P.3d 14 ("Determinations regarding the weight to be given to the testimony of witnesses, including expert witnesses, are within the province of the finder of fact, and we will not second guess a court's decisions about evidentiary weight and credibility if there is a reasonable basis in the record to support them." (brackets, citation, and internal quotation marks omitted)).

         ¶7 Because the trial court found that Paul failed to prove that Pauline lost the items, his complaint that the trial court improperly rejected his valuation of those items is irrelevant. Even if the trial court had found that Pauline lost the items, Paul has failed to demonstrate that the court's credibility determination was clearly erroneous, and the nature of appellate review would require us to defer to that credibility determination. See id.; see also Utah R. Civ. P. 52(a)(4) ("Findings of fact . . . must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the credibility of the witnesses."); Dahl v. Dahl, 2015 UT 79, ¶ 121 (same, in the context of a marital property distribution).

         ¶8 Paul next contends that the trial court "abused its discretion when it awarded alimony, mistakenly relying on Dahl v. Dahl to reject the financial statement figures submitted by [Pauline] and impute its own on her behalf." Specifically, Paul argues that the trial court was bound by Pauline's testimony, or lack thereof, regarding Pauline's needs and her living expenses related to her housing costs. Paul asserts that, whereas "Dahl explicitly states that courts may impute figures [only] when there is insufficient evidence, " "[t]here is no lack of evidence in this case."

         ¶9 Dahl did not hold, as Paul claims, that imputing an amount for an alimony factor is improper whenever evidence pertaining to that factor has been presented. Rather, Dahl instructs that the court may impute a reasonable amount for an alimony factor when no credible evidence regarding that factor has been presented. See Dahl, 2015 UT 79, ¶¶ 115-16 (noting that "there [was] insufficient evidence of one of the statutory alimony factors" due to a party's "failure to provide credible evidence of her financial need, " and thus that the trial court could impute figures).[2] When a party obviously underestimates (as here) or overestimates (as is more common) his or her living expenses, the trial court is not limited to ...


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