Ostermiller v. Ostermiller

2010 UT 43
233 P.3d 489
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Shirlene Ostermiller
nka Shirlene Shaw, 	No. 20080769
Petitioner and
Cross-Respondent,
v.
Dave G. Ostermiller, 	F I L E D
Respondent and
Cross-Petitioner. 	May 28, 2010
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First 	District, Logan Dep’t
The Honorable Gordon J. Low
No. 004100017
Attorneys: 	Marlin J. Grant, Logan, for petitioner
Paige Bigelow, Salt Lake City, for respondent
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	David and Shirlene Ostermiller were both dissatisfied
with the court of appeals’ decision on their respective appeals
from the district court rulings in their divorce action.
¶2 	Shirlene appealed and contends that the court of
appeals erred in reversing the district court’s award of alimony
to her for the period between the couple’s divorce and Shirlene’s
remarriage. 	Shirlene also claims the court of appeals erred when
it failed to address the merits of her claim that the district
court erred in failing to award her a share of rental proceeds
derived from marital property.
¶3 	David filed a cross-appeal. 	He contends that the court
of appeals erred when it declined to address the merits of his
claim that the district court erred by failing to award him child

No. 20080769 	2
support payments because David did not provide the court of
appeals with certain trial transcripts.
¶4 	We reverse in part and affirm in part.
BACKGROUND
¶5 	Shirlene and David Ostermiller were married on
August 1, 1992. 	On January 11, 2000, Shirlene filed for divorce.
She sought child support and alimony. 	The court awarded David
temporary physical custody of the couple’s twin boys. 	On
March 26, 2001, the district court bifurcated the divorce
proceedings. 	In a manner consistent with bifurcated divorce
actions, the court granted the Ostermillers a divorce and
reserved the issues of alimony, child support, and division of
assets for a later hearing.
¶6 	Shirlene remarried two-and-a-half years later on
October 2, 2003. 	The parties did not have another hearing
concerning the reserved issues until December 17, 2003. 	After
conferring outside the presence of the court, the parties agreed
to terms related to permanent custody, parent-time and
prospective child support. 	The stipulation was later reduced to
Findings of Fact and Conclusions of Law entered April 27, 2005.
During the December 17, 2003 hearing, the court did not
determine, and it seems that the parties did not reach an
agreement on, whether retroactive alimony would be awarded from
the date the court dissolved the marriage on March 26, 2001, to
the date of Shirlene’s remarriage on October 2, 2003, a period of
approximately thirty months. 	Instead, when the court approved
and entered the stipulation, it noted that it had again reserved
for later determination the issue of retroactive alimony.
¶7 	The district court held a trial on the remaining issues
on August 31, 2005 and November 16, 2006. 	In its Memorandum
Decision following the trial, the district court found the
question of alimony must be addressed by separating the request
into two time periods: 	(1) between February 2000 (soon after the
court had entered its temporary orders) and April 2001
(corresponding to the entry of the divorce decree) and
(2) between April 2001 (the divorce date) and October 2003
(Shirlene’s remarriage). 	The parties filed multiple objections
to various portions of the Memorandum Decision. 	After the court
considered all of the parties’ arguments and issued additional
memorandum decisions, the court issued an Amended Final Decree.
The Decree ordered David to pay Shirlene retroactive alimony for
the months between the Decree and her remarriage.

3 	No. 20080769
¶8 	In the Amended Final Decree, the district court also
found that Shirlene was not entitled to receive a share of the
proceeds from the couple’s rental properties between January 2,
2000 and March 31, 2001, because during that time David “paid all
of the family expenses.” 	In addition, the district court
determined that David was ineligible for retroactive child
support between April 2001 and October 2003. 	The district court
cited in its Amended Final Decree the “analysis as discussed in
the trial on December 17, 2003.”
¶9 	David appealed to the court of appeals and Shirlene
cross-appealed. 	Ostermiller v. Ostermiller, 2008 UT App 249,
¶ 1, 190 P.3d 13. 	Shirlene argued that the district court erred
by failing to award her a portion of the rental income. 	Id. ¶ 6.
David contended that the district court could not grant Shirlene
temporary alimony for the time period before her remarriage. 	See
id. ¶ 2. 	He also argued the district court erred when it refused
to award him retroactive child support. 	Id. ¶ 4.
¶10 	The court of appeals affirmed in part and reversed in
part. 	Id. ¶ 8. 	First, the court of appeals held that the
district court abused its discretion by awarding Shirlene
retroactive alimony. 	Id. ¶ 2. 	The court acknowledged that
“there may be some circumstances where an alimony award may apply
retroactively to the time during which a request for alimony was
pending,” but this case “does not present such a circumstance
because [Shirlene] was remarried over three years before any
alimony was awarded.” 	Id. 	The court of appeals interpreted the
language in Utah Code section 30-3-5(9) (2007) that a party’s
obligation to pay alimony “automatically terminates” when the
other party remarries as meaning that “[David’s] obligation to
pay alimony to [Shirlene] terminated before it ever arose,” i.e.,
before the district court finally took up the issue it had
reserved. 	Id. 	The court emphasized the fact that Shirlene did
not request a trial on the alimony issue until four years after
she initiated the divorce proceeding and eight months after her
remarriage. 	Id. ¶ 3. 	The court went on to state that its
holding comported with the purpose behind alimony to “‘enable the
receiving spouse to maintain as nearly as possible the standard
of living enjoyed during the marriage and to prevent the spouse
from becoming a public charge.’” 	Id. (quoting Paffel v. Paffel,
732 P.2d 96, 100 (Utah 1986)).
¶11 	Second, the court of appeals affirmed the district
court’s refusal to award Shirlene one-half of the rental proceeds
accumulated between January 2000 and March 2001 from apartments
that constituted marital property. 	Id. ¶ 6. 	The district court
declined to make this award because it found that “the income

1 David has also submitted a lengthy motion to strike
portions of Shirlene’s brief. 	Under Utah Rule of Appellate
Procedure 24(k), briefs that are not “presented with accuracy” or
are not “free from burdensome, irrelevant, immaterial or
scandalous matters,” may be “disregarded or stricken” by the
court. 	The court may also “assess attorney fees against the
offending lawyer.” 	Id. 	David requests attorney fees and costs
for the time and expense incurred in preparing the motion to
strike. 	David’s motion to strike alleges Shirlene made several
factual misstatements in her brief. 	We conclude that the motion
(continued...)
No. 20080769 	4
from those apartments was used to provide for family expenses.”
Id. (internal quotation marks omitted). 	The court of appeals
held that because Shirlene failed to marshal the evidence on
whether the income was used for family expenses, it “assume[d]
that the finding [was] adequately supported by the evidence.”
Id.
¶12 	Third, the court of appeals affirmed the district
court’s decision to deny David retroactive child support for the
nearly four years between the entrance of the Bifurcated Divorce
Decree and the December 2003 stipulation. 	Id. ¶ 4. 	The court of
appeals found that to determine this issue, it had to examine the
transcript for the trial conducted on December 17, 2003. 	Id.
The court of appeals reasoned that examining this transcript was
necessary because a “trial” was referenced in the Memorandum
Decision and the Amended Final Decree as the basis of the
district court’s decision not to award retroactive child support.
Id. According to the court of appeals, David failed to provide
the court of appeals with the transcript from the December 17
trial and the court of appeals therefore “assume[d] the
regularity of the proceedings.” 	Id. (citing State v. Miller, 718
P.2d 403, 405 (Utah 1986) (“If an appellant fails to provide an
adequate record on appeal, this Court must assume the regularity
of the proceedings below.”)).
¶13 	Shirlene petitioned this court for certiorari review
and David cross-petitioned. 	We agreed to decide the following
issues raised by Shirlene: 	(1) whether the court of appeals
erred in reversing the district court’s award of retroactive
alimony and (2) whether the court of appeals erred in declining
to address Shirlene’s argument regarding her claim for a share of
the rental income. 	We also granted David’s cross-petition to
resolve the following issue: 	whether the court of appeals erred
in assuming the regularity of the proceedings as to David’s
challenge to the district court’s denial of retroactive child
support. 1 	We have jurisdiction pursuant to Utah Code section

1 (...continued)
to strike does not highlight blatant misstatements of fact, but
rather argues Shirlene used more inflammatory language than
necessary and possibly construed the facts in a way that departs
from David’s perception of the facts. 	The misstatements
highlighted do not arise to the level of burdensome, irrelevant,
immaterial or scandalous. 	David’s motion to strike is therefore
denied, and we decline to award him attorney fees and costs for
the time spent preparing the motion and accompanying memorandum.
2 We refer to the 2009 version of Utah Code section 30-3-3
because no substantive changes were made to the version in effect
at the time the relevant events in this proceeding took place.
5 	No. 20080769
78A-3-102(3)(a) (2008).
STANDARD OF REVIEW
¶14 	“On certiorari, we review the court of appeals’
decision for correctness.” 	Magana v. Dave Roth Constr., 2009 UT
45, ¶ 19, 215 P.3d 143.
DISCUSSION
I. 	THE COURT OF APPEALS ERRED IN REVERSING THE DISTRICT COURT’S
AWARD OF RETROACTIVE ALIMONY
¶15 	The court of appeals erred in reversing the district
court’s award of retroactive alimony. 	Utah Code section 30-3-
3(3) (2009) 2 allows a district court to “order a party to provide
money, during the pendency of the action, for the separate
support and maintenance of the other party.” 	Section 30-3-3(4)
permits the district court to amend any order entered prior to
final judgment “during the course of the action or in the final
order or judgment.” 	However, “[u]nless a decree of divorce
specifically provides otherwise, any order of the court that a
party pay alimony to a former spouse automatically terminates
upon the remarriage . . . of that former spouse.” 	Id. § 30-3-
5(9).
¶16 	The district court never made a temporary alimony
award, but instead awarded retroactive alimony for the time
period between entry of the Bifurcated Divorce Decree and
Shirlene’s remarriage. 	David argues that section 30-3-5(9)
prohibited the district court from awarding temporary alimony to
Shirlene after her remarriage, even though the district court
specifically reserved the issue in the Bifurcated Divorce Decree
and throughout the proceedings. 	We disagree.

No. 20080769 	6
¶17 	We hold that the district court could award retroactive
alimony to Shirlene for the time period before her remarriage
because the district court reserved the issue throughout the
proceedings. 	In the Decree of Divorce entered March 26, 2001,
the court listed alimony as an issue “reserved for further
settlement or trial.” 	In the minutes of the December 17, 2003
hearing in which the parties stipulated to various issues, the
district court expressly noted “alimony is reserved.” 	In the
court’s Memorandum Decision dated April 27, 2005, issued partly
in response to David’s argument that the court wrongly determined
it must address retroactive alimony in the March 5, 2007
Memorandum Decision, the district court noted that the issue of
temporary alimony was “specifically” and “continually” reserved
first “on February 3, 2000, then on March 26, 2001, and on
December 17, 2003.” 	Because the district court specifically and
unequivocally reserved the retroactive alimony issue, Shirlene’s
failure to move for a temporary alimony award or take other
action to resolve the alimony issue before her remarriage did not
prevent the court from addressing the issue.
¶18 	In Roberts v. Roberts, the court of appeals held that a
wife’s remarriage did not moot the issue of whether the district
court had properly calculated alimony for the time period between
entry of the final decree and remarriage. 	835 P.2d 193, 197-98
(Utah Ct. App. 1992). 	David argues that the difference between
Roberts and the issue here is that the wife in Roberts properly
moved for an award of alimony. 	We find the distinction between a
district court’s reservation of an issue and a specific motion to
resolve an issue, given the facts of this case, to be artificial
and without legal consequence. 	The district court specifically
reserved the issue and then addressed the issue, correctly
observing that Shirlene was only entitled to an award of alimony
for the time period before her remarriage, the time period
section 30-3-5(9) permits. 	The court of appeals therefore erred
when it reversed the district court on this question.
II. 	THE COURT OF APPEALS DID NOT ERR WHEN IT AFFIRMED THE
DISTRICT COURT’S REFUSAL TO AWARD SHIRLENE THE REQUESTED RENTAL
PROCEEDS
¶19 	The court of appeals affirmed the district court’s
refusal to award Shirlene one-half of the rental proceeds from
apartments that constituted marital property for the fourteen-
month period between the couple’s separation and entry of the
Bifurcated Divorce Decree. 	Ostermiller v. Ostermiller, 2008 UT
App 249, ¶ 6, 190 P.3d 13. 	It was correct in doing so. 	The
district court declined Shirlene’s claim because it found that

7 	No. 20080769
“the income from those apartments was used to provide for family
expenses” by David. 	Id. (internal quotation marks omitted). 	The
court of appeals held that because Shirlene failed to marshal the
evidence on whether the income was used for family expenses, it
had to “assume that the finding [was] adequately supported by the
evidence.” 	Id. 	After reviewing the briefs submitted to the
court of appeals, we agree that Shirlene was required to, but did
not, marshal the evidence and therefore the court of appeals had
no obligation to reach the merits of Shirlene’s argument.
¶20 	To challenge a factual finding, “‘an appellant must
first marshal all the evidence in support of the finding and then
demonstrate that the evidence is legally insufficient to support
the finding even when viewing it in a light most favorable to the
court below.’” 	Chen v. Stewart, 2004 UT 82, ¶ 76, 100 P.3d 1177
(quoting Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT 94,
¶ 21, 54 P.3d 1177). 	To properly marshal the evidence,
[t]he challenging party must temporarily
remove its own prejudices and fully embrace
the adversary’s position; he or she must play
the devil’s advocate. 	In so doing,
appellants must present the evidence in a
light most favorable to the [district] court,
and not attempt to construe the evidence in a
light favorable to their case. 	Appellants
cannot merely present carefully selected
facts and excerpts from the record in support
of their position. 	Nor can they simply
restate or review evidence that points to an
alternate finding or a finding contrary to
the [district] court’s finding of fact.
Id. ¶ 78 (internal quotation marks and citations omitted).
¶21 	Shirlene did not present the court of appeals with a
trial transcript nor did she point to record citations that
demonstrate the district court’s findings were against the clear
weight of the evidence. 	Although Shirlene cited Exhibit 18,
written closing arguments from the trial and a sur-reply,
presentation of this evidence does not constitute sufficient
marshaling of the evidence. 	Shirlene only attempted to
demonstrate, based on her own assertions, that the district court
erred, but did not present to the court of appeals the evidence
underlying the district court’s determination and why that
determination was against the clear weight of the evidence.

No. 20080769 	8
¶22 	Shirlene argues, alternatively, that she did not have a
duty to marshal the evidence because the record does not support
the district court’s determination. 	See Martinez v. Media-
Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007
UT 42, ¶¶ 18-21, 164 P.3d 384 (“The reviewing court . . . retains
discretion to consider independently the whole record and
determine if the decision below has adequate factual support.”).
¶23 	The district court heard evidence at a three-day trial
and made factual findings based on the evidence presented. 	The
district court stated the following in the Memorandum Decision
entered April 27, 2005:
[Shirlene’s] first point is that she should
be awarded alimony for the period of January
2000 through April 2001 on the basis that the
apartment income of the parties was received
and used entirely at the discretion of
[David]. 	The Court did not ignore that fact
in issuing its decision but found . . . that
the income from those apartments was used to
provide for family expenses and that
virtually all of the family expenses were
assumed by [David]. 	The exact figures were
not supplied, but the lifestyle of the
parties continued during that period of time
much in the fashion it had before, in that
the monthly bills and expenses were paid for
and that they were, by testimony, paid for in
part from the proceeds of those apartments.
¶24 	Shirlene neither presented a transcript of the August
2006 and November 2006 trial to the court of appeals, nor
indicated that a transcript contained evidence that would
undermine the district court’s determination that the apartment
rents were received by David and that he used the apartment rents
to pay for “virtually all of the family expenses.” 	Shirlene took
the position that because the district court’s findings denied
Shirlene both alimony and one-half of the apartment rents, it
could not, therefore, be supported by the record. 	Shirlene
“cannot shift the burden of marshaling by falsely claiming that
there is no evidence in support of the district court’s
findings.” 	Chen, 2004 UT 82, ¶ 78. 	We therefore affirm the
court of appeals’ use of its discretion to decline to address the
issue.

3 The district court’s Findings of Fact, Conclusions of Law
and Order entered on April 27, 2005, reaffirms the nature of the
December 17, 2003 proceeding. 	The Order states, “After an
analysis of the procedural history and opening statements by
respective counsel were heard, and after extensive in-chambers
discussions between counsel and the Court and between counsel and
the parties, a stipulation regarding the issues of custody and
visitation was reached.”
9 	No. 20080769
III. 	THE COURT OF APPEALS ERRED IN ASSUMING THE REGULARITY OF
THE PROCEEDINGS REGARDING THE DISTRICT COURT’S FINDING THAT DAVID
WAS NOT ENTITLED TO RETROACTIVE CHILD SUPPORT
¶25 	The court of appeals did not address the merits of
David’s claim that the district court erred when it ruled that
David was not entitled to retroactive child support for the
period between February 2000 and December 2003. 	Because the
Amended Final Decree states it uses “‘the same analysis as
discussed in the trial on December 17, 2003,’” and David did not
provide a transcript of the “trial,” the court of appeals
“assume[d] the regularity of the proceedings below.” 	Ostermiller
v. Ostermiller, 2008 UT App 249, ¶ 4, 190 P.3d 13 (citing State
v. Miller, 718 P.2d 403, 405 (Utah 1986)). 	David points to the
December 17, 2003 proceeding and urges that it was limited to the
entry of a stipulation between the parties and that a transcript
therefore would not be helpful for review of the district court’s
findings. 	We agree with David that the December 17, 2003
proceeding was not a trial or hearing for which a transcript
could be provided or would be helpful. 3 	The court of appeals
therefore erred when it determined that the December 17, 2003
hearing was a trial from which a transcript could be obtained,
the contents of which would be relevant to resolving the issue of
child support. 	Consequently, the court of appeals could not rely
on the regularity of the proceedings presumption to avoid the
merits of David’s child support claim. 	We therefore remand to
the court of appeals to address David’s claim that the district
court did not adequately address child support between the time
David was granted sole custody and December 2003. 	On remand, the
court of appeals must also consider David’s claim that the
district court never adequately addressed why it abandoned its
use of the sole custody worksheet suggested in the first
Memorandum Decision and the joint custody worksheet suggested in
the second Memorandum Decision.
CONCLUSION
¶26 	We reverse the court of appeals’ decision that the
district court improperly awarded temporary alimony to Shirlene.

No. 20080769 	10
The district court specifically and continually preserved the
issue throughout the divorce proceedings and therefore acted
properly in addressing it after Shirlene’s remarriage. 	We also
hold that the court of appeals did not err in declining to
address the district court’s failure to award Shirlene a portion
of the rental income because Shirlene failed to marshal the
evidence. 	Finally, the court of appeals erred in holding David
accountable for producing a trial transcript, which after cursory
review of the record, did not exist. 	We therefore remand to the
court of appeals for proceedings consistent with this opinion.
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¶27 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.
¶28 	Justice Wilkins acted prior to his retirement.
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