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Porenta v. Porenta

Supreme Court of Utah

November 15, 2017

Louise Porenta, Appellant,
v.
Patricia Porenta, Appellee.

         On Direct Appeal

         Third District, Salt Lake Dep't The Honorable Andrew H. Stone No. 080923394.

          Stephen A. Starr, Layton, for appellant Jennifer

          P. Lee, Salt Lake City, for appellee

          Justice Durham authored the opinion of the Court, in which Chief Justice Durrant, Justice Pearce, and Judge Mortensen joined.

          Having recused himself, Justice Himonas does not participate herein; District Court Judge David N. Mortensen sat.

          OPINION

          Durham Justice

         INTRODUCTION

         ¶1 Patricia and Robert Porenta were married for approximately seventeen years before the couple filed for divorce. During the divorce proceedings, Robert transferred his interest in the couple's marital home to his mother with the intent to avoid Patricia's claim to the home. After transferring his interest in the home, Robert died and the divorce case was dismissed for lack of jurisdiction. Patricia filed this action against Robert's mother alleging that the transfer was fraudulent under the Utah Fraudulent Transfer Act and sought to gain full ownership of the home. On appeal, both parties concede that the transfer was fraudulent at the time it was made. Robert's mother merely argues that the debtor-creditor relationship was extinguished when Robert died, and that the Utah Fraudulent Transfer Act requires an ongoing debtor-creditor relationship when a claim under the act is filed, therefore entitling her to retain her interest in the home. Robert's mother also argues that the only remedy available under the act is an award of money damages rather than the return of the fraudulently transferred asset. While we hold that an ongoing debtor-creditor relationship is required, we affirm the district court's grant of the marital home to Patricia.

         BACKGROUND

         ¶2 The plaintiff, Patricia Porenta (Wife), married Robert Porenta (Husband) in 1988. During their marriage, the couple purchased a home as joint tenants. After the home was purchased the couple began having marital problems, and in November 2005, Wife filed for divorce. The disposition of the home was at issue in the divorce as part of the distribution of the marital estate. During the divorce proceedings, Husband filed a motion asking the divorce court for an order to list and sell the home, with the net proceeds to be held in escrow pending distribution by the court or by written agreement of Husband and Wife.

         ¶3 Seven days after filing his motion, Husband executed a quit claim deed transferring "an undivided 01/100th share of" Husband's interest in the home to himself and his mother, Louise Porenta (Mother), a defendant in the current action, as joint tenants. The deed transferred the remaining "undivided 99/100th share of" Husband's interest in the home to Mother as a tenant in common. Seven days after executing the quit claim deed, Husband filed a reply memorandum in support of his original motion to sell the home. In the reply memorandum, Husband stated that "[o]nce the home is listed, either side has the option of buying it. . . . If [Wife] wants the house, she can buy it. Proceeds can then be paid into escrow pending equitable division or by a court order." The reply memorandum does not disclose that Husband had already fraudulently transferred a large portion of his interest in the home to Mother, retaining only a minor fraction for himself.

         ¶4 The divorce court held a hearing on Husband's motion, with Husband, Wife, and Mother present. Husband continued to represent to Wife and the divorce court that the home was still within the marital estate under the jurisdiction of the divorce court, and that he desired to sell the home and leave the proceeds in escrow. The divorce court denied Husband's motion, and reserved the issue of the sale of the home until trial unless a "danger of loss" arose.

         ¶5 Wife discovered the transfer to Mother in the spring of 2008, roughly one and a half years after Husband executed the quit claim deed. Then, in September 2008, while the divorce case was still pending before the divorce court, Husband died. The divorce court subsequently dismissed the case for lack of jurisdiction.

         ¶6 Shortly thereafter, Wife filed the current action against Mother, asking the trial court to set aside the quit claim deed under the Utah Fraudulent Transfer Act (UFTA).[1] Mother answered and counterclaimed, alleging that the transfer was repayment of $200, 000 in loans she had made to the couple.[2]

         ¶7 In September 2014, a trial was held on whether the transfer to Mother was fraudulent and whether the home should be awarded to Wife. Nine days before the trial on Wife's UFTA claim, without any disclosure to Wife or the court, Mother executed a quit claim deed purporting to transfer the entire home to Diamond Fork Land & Livestock Company. This company, according to Mother, is owned by Robert Copier, the attorney who represented Husband in the underlying divorce case and represented Mother at the beginning of the present action. At the September trial, Mother again did not disclose the transfer to Diamond Fork. Rather, she actively concealed the fact that she had transferred all of her interest a week before the trial. During the September trial, Mother suffered from a medical issue and was transported to the hospital. The trial was continued, and Wife later learned of the transfer from Mother to Diamond Fork. Wife then amended her complaint to include a claim under UFTA that Mother had fraudulently transferred her interest in the home to Diamond Fork and Robert Copier.

         ¶8 Trial finally resumed in November 2015, seven years after the original complaint had been filed. The trial court ultimately held that Husband's transfer to Mother was fraudulent under UFTA. Additionally, the trial court awarded Wife her attorney fees because of Mother's misconduct during trial. Diamond Fork and Robert Copier defaulted, and the trial court found that Mother's "transfer to Diamond Fork Land & Livestock Company was an attempt to transfer the subject property beyond the jurisdiction of the court to avoid the remedy sought by" Wife. The trial court further found that Mother "filed at least sixty motions during the pendency of this case, many of them repeating previously denied motions." It held that Mother's "defenses were brought in bad faith, made with the intention of hindering or delaying restoration of the property to [Wife] or forcing [Wife] to abandon her case because of the legal fees required by [Mother's] paperwork blizzard for repetitive, baseless, unsupported motions." Mother appealed.

         STANDARD OF REVIEW

         ¶9 Mother appeals two issues. First, she argues that the Utah Fraudulent Transfer Act requires an ongoing debtor-creditor relationship when the action is filed, and that the death of Husband extinguished any such relationship prior to Wife filing her UFTA claim. Our interpretation of a statute is a question of law that we review for correctness. Sill v. Hart, 2007 UT 45, ¶ 5, 162 P.3d 1099. Whether a debtor-creditor relationship exists is an "application of a legal standard to a set of facts unique to a particular case." In re Adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382. Thus, it is a mixed question in which "our review is sometimes deferential and sometimes not." Id. The amount of deference we grant to a lower court is based to some extent on whether the question is more "factlike" or more "law-like." Id. ¶¶ 43-47; see also Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶¶ 28-29, 164 P.3d 384. The question of whether a debtor-creditor relationship is extinguished upon the death of the debtor during a divorce proceeding is more law-like, as the only real fact at issue is the death of the spouse. The remainder of the inquiry is a legal question, determining the effect of that death on the debtor-creditor relationship. Because this question is more law-like, we review this mixed question for correctness. Adoption of Baby B., 2012 UT 35, ¶¶ 42, 44.

         ¶10 The second issue is whether UFTA authorized the trial court to award Wife with Mother's interest in the home, rather than awarding Wife money damages. This is a question of statutory interpretation, which we review for correctness. Sill, 2007 UT 45, ¶ 5.

          ANALYSIS

         ¶11 Mother raises two issues on appeal: 1) whether the death of Husband extinguished any debtor-creditor relationship, and 2) whether UFTA authorized the trial court to award Wife the entire home, or if it was limited to awarding Wife with money damages.[3] Finally, Wife argues that she is entitled to attorney fees under Utah Rule of Appellate Procedure 33 because Mother's appeal was brought for an improper purpose. We address each issue in turn.

         I. DEBTOR-CREDITOR RELATIONSHIP UPON DEATH OF A SPOUSE

         ¶12 The trial court held that the transfer from Husband to Mother was fraudulent under three different sections of UFTA: Utah Code sections 25-6-5, 25-6-6(1), and 25-6-6(2). All of these require a debtor-creditor relationship. Utah Code §§ 25-6-5, -6 (2016) (stating that a transfer by a "debtor is fraudulent as to a creditor" when certain requirements are met). A "debtor" is defined as "a person who is liable on a claim." Id. § 25-6-2(6) (emphasis added). A "creditor" is defined as "a person who has a claim." Id. § 25-6-2(4) (emphasis added). The existence of a claim, or right to payment, is at the heart of the debtor-creditor relationship. See id. § 25-6-2(3) (a claim is a "right to payment"). Both of these definitions use the present tense when discussing the claim, indicating that there must be a claim or right to payment held by the creditor against the debtor at the time a UFTA claim is filed. See In re Discipline of Bates, 2017 UT 11, ¶ 23, 391 P.3d 1039 (use of present tense informs our interpretation of rules and statutes); Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (when interpreting a statute, "[t]he best evidence of the legislature's intent is the plain language of the statute itself" (alteration in original) (citation omitted)).

         ¶13 UFTA's apparent purpose is to prevent insolvent debtors from transferring all of their assets to avoid their creditors' claims, and to provide a means whereby creditors can collect against a fraudulently transferred asset. See Utah Code §§ 25-6-5, -6. A creditor cannot typically execute against a fraudulently transferred asset under UFTA if the creditor no longer has a claim against the debtor because the debt has been satisfied or is otherwise no longer enforceable. See Tolle v. Fenley, 2006 UT App 78, ¶ 46, 132 P.3d 63 (Thorne, J., concurring in the result) (“The UFTA plaintiff herself must have some current claim against the grantor, as it is only the need to satisfy that claim that justifies revesting the property in the grantor.” (citation omitted)); but see Rupp v. Moffo, 2015 UT 71, 358 P.3d 1060 (claim brought solely against transferee by bankruptcy trustee where it could not have been brought against debtor because of bankruptcy).

         ¶14 In this case, the trial court held that "[t]he creditor-debtor relationship, and [Wife's] claim against [Husband], arose when [Wife] filed for divorce on November 10, 2005." It further held that Wife's underlying claim against Husband was for "the whole of the marital estate, including the right to preserve the joint tenancy or require [Husband] to convey his interest free and clear to [Wife]."

         ¶15 On appeal, Mother argues that the divorce court's orders for "child support and medical and insurance expenses" were vacated when Husband died.[4] Furthermore, she argues that the debtor-creditor relationship-based on the child support orders amounting to $20, 086.63-between Husband and Wife was extinguished at Husband's death. (Relying on Nelson v. Davis, 592 P.2d 594, 597 (Utah 1979) ("[W]hen the death of one or both parties to a divorce action occurs during the pendency of the action, the action itself abates and their status, including their property rights, reverts to what it had been before the action was filed.")).

         ¶16 However, an order and a claim are two distinct things. A claim is "[t]he assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional." Claim, Black's Law Dictionary (10th ed. 2014). An order or judgment is a court's adjudication of the viability of a claim. Id. Order ("A written direction or command delivered by a government official, esp. a court or judge."). Mother did not argue that the district court erred in holding that Wife had a claim to preserve the joint tenancy. Nor did she argue why that specific claim-the primary claim at issue in this case-abated upon Husband's death. She argues primarily that court orders that award a spouse with property abate upon the death of a spouse. Regarding claims, she simply makes the general statement that Wife's claims against Husband are unenforceable because Husband is dead and she cannot bring a claim against a dead person.

         ¶17 Whether court ordered child support versus a claim for a joint tenancy abate upon the death of a spouse are two very distinct questions. Utah courts have only ever wrestled with whether court orders dealing with property rights abate upon the death of a spouse. Whether a claim for equitable distribution or some other property claim survives the death of a spouse during a divorce proceeding has never been addressed by this court, and we decline to address it for the first time without adequate briefing. We first address our precedent discussing the effect of the death of a party on court orders entered during a divorce proceeding. Next, we address the effect of the death of a party on a claim that was or could have been brought against that party. Finally, we address some additional arguments that Mother raised for the first time during oral arguments concerning the debtor-creditor relationship.

         A. Utah's Treatment of Court Orders Dealing With Property Rights in Divorce Proceedings Where One Party Dies Prior to a Final Decree

         ¶18 We have previously addressed whether a court order addressing marital property survives the death of a party in a divorce proceeding, and we originally held that it does. In a string of cases we purportedly abandoned our original holding, but we now dismiss those cases as dicta and reaffirm our original holding that a court order dealing with marital property survives the death of a spouse.

         ¶19 A claim for equitable distribution arises when one party in a marriage threatens divorce. See Bradford v. Bradford, 1999 UT App 373, ¶¶ 14-16, 993 P.2d 887 (holding that a debtor-creditor relationship is created between husband and wife once divorce is threatened); see also Dahl v. Dahl, 2015 UT 79, ¶ 26, ___ P.3d ___ ("Utah law presumes that property acquired during a marriage is marital property subject to equitable distribution."). Once the parties file for divorce, the divorce court has the power to enter "equitable orders relating to the . . . property" belonging to the marital estate. Utah Code § 30-3-5(1). See also Dahl, 2015 UT 79, ¶ 25 ("Utah has a long-established policy in favor of the equitable distribution of marital assets in divorce cases."). "Thus, by legislative enactment and our long-standing precedent, Utah has an interest in ensuring that marital assets are fairly and equitably distributed during divorce and that divorcing spouses both retain sufficient assets to avoid becoming a public charge." Dahl, 2015 UT 79, ¶ 25. When one spouse transfers assets out of the marital estate during the divorce proceeding with the intent to keep those assets out of the hands of their spouse, the equitable division of assets is frustrated.[5]

         ¶20 Our precedent has addressed what happens when a divorce court enters an order that relates to the marital property, but then a spouse dies before the final divorce decree is entered. Originally, a court order that divided marital property did not abate upon the death of a spouse before a final divorce decree could be entered. In In re Harper's Estate, this court held that

[w]hen the death of one of the parties occurs after the entry of a divorce decree and before the decree is final the decree becomes ineffective to dissolve the marriage, death having terminated that personal relationship. However, the occurrence of death does not abate the action itself and to the extent that property rights are determined by the decree it remains effective and becomes final . . . .

265 P.2d 1005, 1006 (Utah 1954) (emphasis added). This appears to comport with the majority of jurisdictions. "The general rule followed in virtually all jurisdictions is that, " after one of the spouses dies during a divorce proceeding, and "during the time an appeal is pending or during the time when an appeal may be taken, a divorce or dissolution action abates with respect to marital status of the parties but does not abate with respect to property interests affected by the decree." 27A C.J.S. Divorce § 194 (2017 update).[6]

          ¶21 Despite this general agreement among jurisdictions, this court, without analysis, purportedly abandoned the majority approach in Daly v. Daly, 533 P.2d 884 (Utah 1975). In that case, this court applied the rule of In re Harper's Estate, but then prospectively reversed "that part of the decision in In re Harper's Estate . . . having to do with determination of property rights . . . ." Id. at 885. Despite this statement being pure dictum, as recognized in a separate opinion, id. at 886 (Crocket, J., concurring and dissenting), the majority went on to craft a new rule: "when the death of one or both of the parties occurs after the entry of a divorce decree and before the decree is final, the decree becomes ineffective and is deemed and held to be of no further force or effect, " id. at 885-86. The court in Daly did this without any analysis and the statement did not affect the outcome of the case. "For a decision to become precedent and trigger stare decisis, it must be (1) [a] deliberate or solemn decision of a court or judge [2] made after argument of a question of law fairly arising in a case, and [3] necessary to its determination." State v. Robertson, 2017 UT 27');">2017 UT 27, ¶ 25, __P.3d__ (alterations in original) (citation omitted) (internal quotation marks omitted). Without affecting the ultimate decision of the case, the statement in Daly was not necessary to the court's determination and is clearly dictum.

         ¶22 This statement was mentioned in Nelson v. Davis, 592 P.2d 594 (Utah 1979). However, it was again applied in dictum. In that case, a mother going through a divorce executed a quit claim deed to her daughter and also executed a "Notice of Termination of Joint Tenancy." Id. at 596. This court held that both the deed and the notice of termination had no legal effect for various reasons and, therefore, neither the daughter nor the mother's estate had any interest in the home. The daughter raised an alternative contention that "even if she does not take by the deed, she should be entitled to succeed to her mother's interest in the property as the executrix of her estate." Id. at 597. This court stated that, from its prior analysis regarding the deed and notice of termination, "it is obvious that there was never any such conversion of the joint tenancy to a tenancy in common." Id. Thus, the husband "became the owner of the home as the surviving joint tenant, " and the mother (and by extension, the mother's estate) did not have any interest in the home. Id. After holding that the mother and the mother's estate did not have any interest in the home, the court went on to state that even if the mother had acquired some other interest in the home during the divorce proceeding, "the death of one or both parties to a divorce action . . . during the pendency of the action [causes] the action itself [to] abate[] and [the married couple's] status, including their property rights, reverts to what it had been before the action was filed." Id. This was clearly dictum as it did not affect the outcome of the case. The court had already established that the joint tenancy was never severed and that the mother, and her estate, did not have any remaining interest in the home.

         ¶23 We abandon any implication that this statement was anything more than dictum. The dissenting opinion argues that this dictum from Nelson means that all court orders and all claims that arise in a divorce proceeding abate upon the death of a spouse.[7] See infra ¶ 60 ("[A]ny right or claim arising from the existence or threat of a divorce proceeding is extinguished upon the death of one of the spouses."). Even if Nelson's statement wasn't dictum, it does not do the work that the dissent argues it does-it does much more. The dissent argues that this statement means that all claims arising from a divorce abate upon the death of a spouse. However, if we were to apply the meaning and intent of Nelson's actual statement in this case, then the property rights of Husband and Wife would have reverted to "what [they] had been before the [divorce] action was filed." Nelson, 592 P.2d at 597. In Nelson, the mother held a joint tenancy in the home with her husband prior to the divorce proceeding. Id. at 595. The court used Daly's dictum statement to say that, even if a tenancy in common had somehow been created or the mother had gained some other interest that could pass to her estate in the divorce, that interest was extinguished upon her death during the divorce proceeding and the parties' interest in the home "revert[ed] to what it had been before the action was filed." Id. at 597. Nelson's dictum stands for the proposition that the parties' property interests in the marital estate are frozen in time during the pendency of divorce litigation.[8] If a party dies before the divorce becomes final, than the couple's status, including property rights in the marital estate, are transported back in time to what they held before the divorce case was filed. Thus, the only alteration in property rights that are available is a final divorce decree that divides the marital estate.

         ¶24 This court failed to apply this outcome in In re Estate of Knickerbocker, 912 P.2d 969 (Utah 1996). After overruling a portion of Nelson that is not at issue in this case, we stated that a litigant's property rights were not frozen by a divorce proceeding when a court order[9] prohibits the transfer of property out of the marital estate. Id. at 976. In that case, we held that a spouse could sever a joint tenancy and create a tenancy in common in the marital home because the home remained in the name of the spouse, [10] and thus, remained in the jurisdiction of the divorce court. Id. at 982. Such an outcome would not be available under the Nelson dictum. If we apply Nelson on its face then the severance of the joint tenancy would be ineffective because the parties would be placed back in their original positions upon the death of either spouse.

         ¶25 This was not the outcome in Knickerbocker, and for good reason. As we stated in Knickerbocker, a divorce case or any order prohibiting a transfer of marital property in a divorce case is not intended to "'freeze' the status of the parties' assets, " or to "freeze each party's estate plan." 912 P.2d at 976. Parties subject to a court order similar to that in Knickerbocker are merely prevented from unilaterally dissipating the marital estate by transferring marital assets to a third party, thereby removing them from the jurisdiction of the divorce court and preventing equitable distribution of those assets.[11]

         ¶26 Before the divorce action was filed in this case, Husband and Wife were joint tenants. Wife did not acquire her interest as a joint tenant in the property during the divorce proceeding; it preexisted as an interest that was part of the marital estate and was subject to equitable distribution. Under the Nelson dictum, we would be required to restore the joint tenancy. As joint tenants, Wife would have succeeded to Husband's interest in the home upon Husband's death. If the statements in Nelson are not dictum but are binding precedent, we must affirm the district court on alternative grounds. However, we reject this statement as dictum, and reaffirm our holding in In re Harper's Estate regarding the effect of the death of a spouse on court orders dealing with property rights.[12] The death of a spouse during a divorce proceeding abates the action concerning the dissolution of the marriage, but it "does not abate the action itself" when certain "property rights" have been determined by the court. In re Harper's Estate, 265 P.2d at 1006.

         ¶27 Conversely, all interlocutory orders that are effective only during litigation abate upon the dismissal of a divorce case. In Knickerbocker, the district court ordered that, "[e]ach of the parties is restrained from selling . . . the assets of the parties . . . during the pendency of this action." 912 P.2d at 976. During the pendency of the divorce action, the wife died and the divorce proceeding "died with" her. Id. at 977. The court's order prohibiting the transfer of marital assets abated because it was expressly limited to the "pendency of this action."[13] Id. at 976.

         B. Mother Inadequately Briefed Whether a Claim Arising in the Context of a Divorce Proceeding Abates Upon the Death of a Spouse

         ¶28 While we reaffirm our precedent in In re Harper's Estate, we note that this line of precedent addresses only the effect of the death of a party on a court order dealing with property rights. Indeed, Mother expressly argued that the Nelson v. Davis line of cases only applies to "those [property] rights granted by the court via an order issued during the divorce." She did not argue that it applied to any claims that could be held by Wife. None of these cases address the effect of the death of a party on a claim for equitable distribution or any other property rights claim. This question appears to be an issue of first impression in Utah.

         ¶29 "On appeal, the burden is upon the appellant to convince us that the trial court committed error . . . ." Brigham v. Moon Lake Elec. Ass'n, 470 P.2d 393, 397 (Utah 1970). When an appellant fails to adequately argue an issue on appeal, she will "almost certainly fail to carry [her] burden of persuasion on appeal." Bank of Am. v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d 196 (citation omitted). Mother spent the vast majority of her opening brief on whether court orders abate upon the death of a spouse in a divorce proceeding. Concerning claims, rather than court orders, Mother simply stated that Wife "has no currently enforceable claim against Husband" because "Husband is dead" and Wife "cannot haul Husband back into the divorce court." Essentially, Mother argued in her opening brief that no claim exists simply because Husband died. Wife countered by arguing that her property claims "could be brought against the [Husband's] estate." She argues that Utah Rule of Civil Procedure 25 is evidence of the ability to substitute the deceased party with the deceased party's estate. Mother never filed a reply brief explaining why such a claim does not extend to Husband's estate.

         ¶30 At oral argument, Mother conceded that any claim held by Wife against Husband that survived the abatement of the divorce proceeding extended to Husband's estate once he died.[14] We agree. Claims that survive the death of a party are typically chargeable against that party's estate. See Utah R. Civ. P. 25(a)(1) ("If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties."); Bridgeman v. Bridgeman, 391 S.E.2d 367, 369 ( W.Va. 1990) ("[D]ivorce actions abate at death except as to property rights. . . . because the award is chargeable against the estate." (emphasis added)). Yet, Mother's only argument that Wife did not have a claim (rather than court-ordered property rights) against Husband was because she could not haul her dead Husband back into the court to bring such a claim. She did not argue why Wife's property rights claim cannot be brought against Husband's estate.[15] This is fatal.

         ¶31 The dissent argues that Mother's briefing did not address this issue because Mother "is arguing for a broad rule that doesn't require the nuance now demanded by the majority."[16] Infra ¶ 95. However, we do not demand this nuanced argument. It is demanded by Wife's counter-argument that property claims brought in a divorce proceeding survive the death of a spouse. She argued that while "the death of a spouse ends the cause of action for divorce and abates any pending action for divorce[, ] . . . insofar as a divorce action seeks an adjudication of property rights, the cause of action survives and may be revived." (Quoting 24 Am. Jur. 2d Divorce & Separation § 119 (2017)). She further argued that "[c]laims relating to property rights" are not personal, unlike seeking a termination of the marital relationship, and could be brought against the decedent's estate.

         ¶32 Mother never filed a reply brief and never grappled with this important question. As the appellant, Mother had the burden of establishing that the district court erred. Without adequate briefing from Mother, we do not believe the time is right to rule on this issue. We are rightly hesitant to address an issue of first impression without the aid of adequate adversarial briefing. Mother failed to adequately address the question of whether Wife's claim for the joint tenancy survived the death of Husband and thereby failed to meet her burden on appeal, so we affirm the district court's holding. Because of this, we hold that Wife's claim against Husband for the joint tenancy extended to Husband's estate.[17] The question then becomes whether Wife's claim is somehow barred against the estate or is no longer for the entire marital estate. We do not reach these issues, however, because Mother failed to brief them or to include an adequate record on appeal. She also failed to demonstrate that they were preserved at trial.

         C. Claims Raised by Mother for the First Time During Oral Argument

         ¶33 After conceding at oral argument that any claim that survived the death of Husband extended to his estate, Mother alleged for the first time that Wife actually brought a claim against the estate, but that it was disallowed by the personal representative and Wife did not timely seek review by the probate court. Thus, her underlying claim against the estate is time barred. If the underlying claim against the debtor is barred then a UFTA claim against the transferee could be barred as well. But see Goldberg, Bowen & Co. v. Demick, 247 P. 261, 263-64 (Cal. Dist. Ct. App. 1926) (holding that statute of limitations defense is personal to the debtor and may not be asserted by the transferee in a fraudulent conveyance action). But Mother raised this argument for the first time during oral argument, and has not identified preservation in the trial court. We do not address issues raised for the first time during oral argument. Allen v. Friel, 2008 UT 56, ¶¶ 7-8, 194 P.3d 903 (appellants failing to raise an issue in their opening brief have waived the issue on appeal). This alone is fatal to Mother's arguments.

         ¶34 Additionally, Mother failed to point to any part of the record before us to support the assertion that a claim against the estate was made, or the result of such a claim. On appeal, "we do not abrogate a [party's] obligation or assume the role of an advocate by researching all applicable law and searching the entire record for each and every indication of possible or potential error." State v. Honie, 2002 UT 4, ¶ 67, 57 P.3d 977 (citation omitted). This is especially true where Mother could not confirm what claims were brought by Wife against the estate, when they were brought, or whether a probate court ever addressed those claims. While the Utah Uniform Probate Code provides for different instances in which a claim against an estate may be barred, Mother did not cite to any authority or make any legal argument as to why Wife's claim against the estate is barred. She merely stated that Wife's claim is time barred. In the absence of timely argument or a record on the question of whether Wife's claims against the estate are time barred, we will not assume as much.

         ¶35 At oral argument, the nature of Wife's claim against the estate-whether it is for the entire marital estate or some lesser amount-was also raised for the first time. Once again, Mother did not raise this issue in her opening brief, nor did she argue how this should affect our analysis during oral arguments, nor point to any will or other evidence in the record to indicate how Wife's claim should be decreased. For these reasons, we do not address this issue.

         ¶36 "On appeal, the burden is upon the appellant to convince us that the trial court committed error . . . ." Brigham, 470 P.2d at 397. Additionally, "when an appellant fails to provide an adequate record on appeal, we presume the regularity of the proceedings below. As this court has previously stated, 'When crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court.'" State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (citation omitted). In this case, Mother is the appellant. Once Wife won in the trial court, the burden shifted to Mother to persuade us, on appeal, that the trial court erred. This included Mother's duty to provide an adequate record. Utah R. App. P. 11(e)(2) ("If the appellant intends to urge on appeal that a . . . conclusion is unsupported by . . . the evidence, the appellant shall include in the record a transcript of all evidence relevant to such . . . conclusion. Neither the court nor the appellee is obligated to correct appellant's deficiencies in providing the relevant portions of the transcript."); id. 24(a)(9) (an appellant's argument must include "citations to the . . . parts of the record relied on"). Because Mother has failed to provide us with timely argument or to point to the record to challenge the trial court's findings and conclusions, we presume that Wife's claim for the "whole of the marital estate, including the right to preserve the joint tenancy, " extended to Husband's estate upon Husband's death, and that this claim is still valid. Based on this, a debtor-creditor relationship existed between Husband's estate and Wife at the time Wife filed her UFTA claim.

         ¶37 While Wife's underlying claim for the joint tenancy is against Husband's estate, her UFTA claim was brought only against Mother. But Wife's failure to bring her UFTA claim against the estate as well as Mother is not fatal to her claim. Nothing in UFTA requires a fraudulent transfer claim to be brought by the creditor against the debtor. See Hoesman v. Sheffler, 886 N.E.2d 622, 627 (Ind.Ct.App. 2008) (noting that "nothing under" Indiana's Fraudulent Transfers Act "indicates that a debtor is a mandatory party"). Indeed, UFTA allows a claim to be brought by the creditor directly against the transferee, even though the transferee was not the party that made the fraudulent transfer. See Utah Code ยง 25-6-9(2) ("[J]udgment may be entered against . . . the first transferee of the asset or the person for whose benefit ...


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