Category: Divorce Mistakes

When Is It Appropriate to Leave a Marriage if Your Spouse Does Not Contribute Financially or Emotionally and Has No Intention of Doing So Due to a Sense of Entitlement From Their Upbringing?

This is a very hard question to answer honestly and sincerely, though at first blush, it may not appear that way.

There are very good reasons to divorce in certain situations. There are also many convenient excuses people who just don’t want to be in a marriage anymore can give for seeking a divorce.

I am a divorce lawyer, and I hate divorce. I do not want to see people divorce unless they must. And far, far too many people divorce who need not have divorced and should not have divorced.

If we examine this kind of marriage through the lens of a business partnership (i.e., “we’re 50/50 partners”), then one partner is wholly justified in ending and leaving the partnership if the other partner does not do his/her fair share (50%) of the work and make his/her share of the sacrifices necessary to keep the venture afloat and to make it successful.

But marriage is not purely a partnership or quid pro quo but a solemn vow “to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, until we are parted by death . . . bound to each other through Jesus Christ our Lord, what’s mine is yours”.

The church of which I am a member (Church of Jesus Christ of Latter-day Saints) has this statement on divorce on its website:

When men and women marry, they make solemn covenants with each other and with God. Every effort should be made to keep these covenants and preserve marriage. When divorce occurs, individuals have the obligation to forgive, lift, and help rather than to condemn.

This got me to thinking, “If that is true (and I accept it as true), wouldn’t it also be true that we don’t limit forgiveness, support, aid, and not condemning to ex-spouses? Indeed, a marriage in which spouses don’t forgive, lift, help, and not condemn is a marriage that is doomed to failure (whether it ends in divorce, or the couple just stays miserable for life).

The only teaching we have from Jesus himself about divorce is in Matthew 19, and the only ground for divorce he taught there was adultery. I’m no scholar of the scriptures, but I have to believe that adultery cannot be the only ground for divorce. Surely, for example, God does not expect one to stay married to a spouse who physically or sexually abuses him/her and/or the couple’s children, right?

In researching this question, I found this article from enlightening and clarifying on the subject (note: the bold portions are my emphasis, not that of the author):

[From the Catechism] “If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, [then] it can be tolerated and does not constitute a moral offense.”

This is the first mention of civil law. Civil law is the recourse that citizens have from their government to secure certain legal protections. As we see from the Catechismthose protections can be accessed via civil divorce if they are the “only possible way” of ensuring very specific legal rights. It helps to think of civil divorce as a “protective legal maneuver” rather than an actual severing of marriage. Why? Because Catholics may never use civil divorce with the intent to end their marriage (which, as we’ve seen, is neither moral nor possible).

If a Catholic approaches a civil court for civil divorce with the intent of ending his marriage, then he commits a grave offense. To claim to break the marital contract, either in civil court or otherwise, is precisely what Christ forbade. Again, to use the words of the Catechism, it is immoral, it is gravely harmful, and it is traumatizing to the abandoned spouse and children. It is the very thing that “introduces disorder into the family and into society.”

We must remember that those who complete a civil divorce—whether for licit or illicit reasons—are still very much, in reality, married.

Here’s an example of how this distinction plays out in real life:

A dear friend of mine saw no other possible option but to file for civil divorce from her husband of many years, specifically to get physical and financial protection for herself and her children in a dire situation. There was simply no other mechanism in the civil law that could be used to secure those protections. My friend, whom I accompanied to court, would be the first to tell you that she was in no way claiming to break the marriage contract by approaching for a civil divorce.

Nor was she in any way thinking of “moving on” from her marriage, which in her mind (rightly) could never be “ended” by a civil court. She still prays for her husband’s redemption (matrimony is one of two sacraments ordered toward the salvation of the other [CCC 1534]) and the eventual restoration of her family.

Why is it necessary to be so clear about the distinction between divorce (a grave sin) and “civil divorce” (as a tolerable legal maneuver)? Because confusion surrounding this issue leads countless well-meaning but misguided Catholics to advise their hurting friends that it’s okay to civilly divorce when they are unhappy in their marriages—even absent the narrow conditions the Church requires for civil divorce to be tolerable, and quite often with the intent that the unhappy friend should “move on.”

But with even Catholic families shattering all around us, we must never be afraid to say that the act of approaching the civil court with the intent to break the marriage contract and “end the marriage” is always gravely immoral. Such civil divorces are not tolerable nor permissible, yet even otherwise faithful Catholics are routinely obtaining them. By contrast, accessing civil courts when there is no other possible way to get very specific legal protections is “tolerable” and permitted — but with hope for the repentance and healing necessary for potential resumption of the conjugal life, even if that possibility seems remote.

So, if you read this far and still, in your own mind, don’t have an answer to your question, my answer to it, in my opinion, is this: If your husband is shamelessly exploiting your labor and your goodwill, then he’s not a spouse, he’s a parasite. Worse, he’s a deplorable example to your own impressionable children of what a husband and spouse should be. It’s one thing if a spouse cannot work to support the family, but choosing to mooch off of one’s spouse is indefensible. If, after giving your husband the opportunity to take real, substantial steps toward cleaning up his act, he will not commit to breaking his bad habits, will not commit to being equally yoked with you to support the family (this does not mean each you must work precisely the same number of hours and do the same number of dishes, obviously, but that each of you does his/her best as a spouse), you are justified in divorcing him.

Utah Family Law, LC | | 801-466-9277

(12) When is it appropriate to leave a marriage if your spouse does not contribute financially or emotionally and has no intention of doing so due to a sense of entitlement from their upbringing? – Mother-in-Law Mysteries and Conflicts – Quora

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Can My Spouse Take out a Loan Using Our House as Collateral After I File for a Divorce?

This is a good question and one that often comes up in divorce cases.

I cannot speak for the law in all jurisdictions, but as this question applies in the jurisdiction where I practice law (Utah), these are my observations (my discussion of a general question on Quora does not constitute legal advice, so anyone who has this particular question needs to consult with an attorney personally):

In Utah, can a spouse take out a loan using the marital home as collateral after the other spouse files for a divorce?

First, we need to know what “marital home” means in this context. Even if the house is in your spouse’s name alone, if the house was purchased by one spouse during the marriage, it is (unless the spouses contracted otherwise) still considered marital property because it was purchased by your spouse while he/she was married to you.

So, is it possible for your spouse to borrow against the marital home after a divorce action has been filed in Utah? Yes, but not likely, and even if the loan/credit was made, a Utah court would almost surely void the loan/credit contract.

Yes, if by “possible” we mean that your spouse was able to find a lender who is willing to contract with your spouse to borrow against the marital home’s value without your consent. This does not mean that the loan/credit contract is necessarily enforceable. This does not mean that the loan/credit contract could not be set aside by the divorce court as a fraudulent conveyance under the right circumstances (see below).

Not likely because 1) I don’t know of an institutional lender who would agree to accept as collateral all or a portion of a marital home without obtaining the consent of both spouses first; 2) such unilateral action on the part of your spouse to encumber marital property without your consent could be set aside as a fraudulent conveyance (See Bradford v. Bradford, 993 P.2d 887, 1999 UT App 37 (Court of Appeals of Utah 1999)); and 3) Utah Rules of Civil Procedure 109 provides, in pertinent part:

Rule 109. Injunction in certain domestic relations cases. Effective: 1/1/0021

(a) Actions in which a domestic injunction enters. Unless the court orders otherwise, in an action for divorce, annulment, temporary separation, custody, parent time, support, or paternity, the court will enter an injunction when the initial petition is filed. Only the injunction’s applicable provisions will govern the parties to the action.

(b) General provisions.

(1) If the action concerns the division of property then neither party may transfer, encumber, conceal, or dispose of any property of either party without the written consent of the other party or an order of the court, except in the usual course of business or to provide for the necessities of life.

And so, if your spouse attempted, after a divorce action was filed, to encumber marital property without your written consent, the court would likely void the transaction as fraudulent and/or penalize your spouse for violating the Rule 109(b) prohibition against a spouse encumbering marital property without his/her spouse’s written consent.

Utah Family Law, LC | | 801-466-9277

(61) Can my spouse take out a loan using our house as collateral after I file for a divorce? – Mother-in-Law Mysteries and Conflicts – Quora

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What Would I Have Done Differently If I Were In My Parents’ Shoes? By Braxton Mounteer, Legal Assistant

Like many people, I am a child of divorce. While I may not understand every reason why my parents chose to end their marriage (I was too young to understand at the time), I can look back on how I was raised, both pre- and post-divorce, and see what worked and what only caused problems. Hindsight is 20/20, after all.

I know that I cannot go back in time to do things differently, but if my experience might help divorcing parents who are contemplating these issues and help them avoid the difficulties and disappointments I encountered, this post will be among my best.

One of the things that affected me the most was how my divorced parents handled the matter of my clothes. Having two sets of similarly styled clothes might not have mattered to some people, but it always felt like a continental divide to me. I am the same person at both homes, but no matter what I did, I was never comfortable in either set of clothes. They always felt like I was borrowing clothing from a twin that I had just missed in passing.

My parents lived close enough that during major holidays, we did mid-day drop offs. On paper, this meant that I got two Christmases (and other holidays) on the same day. In reality, I was always late to the party. Always too early or too late to enjoy the holiday.

I love both my parents, but two Christmases gets old very quickly. I was surprised to find that as a child I had a limited amount of avarice during that particular holiday. Both parents want child-like wonder, and it always felt forced to drum up that much emotion for each holiday.

What I would have done differently (and what I did do when I was older) is use a suitcase. I combined both sets of clothing and made one set that I used all the time. It wasn’t the best solution to the problem, but it did help. To fix the holiday problem, I would adjust the schedule so that the holiday wouldn’t have been so taxing for my siblings and me.

Ultimately, the worst issues of my parents divorce are not something that I could have fixed as a child. For those issues I wish my parents would have come to me and my siblings together (parents together talking with their children together), to learn what our needs were and how they could meet them as best they could under the circumstances.

Utah Family Law, LC | | 801-466-9277

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Why All Communications with Your Former Spouse Should be in Writing By Braxton Mounteer, Legal Assistant.

Even if you trust your former spouse to deal with you honestly and in good faith in any matter pertaining to your divorce, why should you communicate in writing with your ex?
Writing down or recapping your conversations in writing (text and/or email) with your spouse creates a verifiable record. If you later present this to your spouse refer back to the record and avoid confusion, refute false claims, and prove real claims.
So if your ex tries to claim you didn’t give him or her notice of the day, time, and place for Timmy’s baseball game, referring back to that text message or email message will vindicate you. If you need to prove you made a timely request for reimbursement for a child health care or daycare expense, written record is essential.
If there is no record, the event or the claim might as well never have existed. If you can’t prove it exists, it doesn’t in the world of law. Phone calls do not exist. Well, to be fair, you may be able to prove a phone call to place, but not what was discussed during the call. Likewise with in-person communications. All the other person would have to do is to claim that the conversation didn’t happen and then it is your word against another’s. To avoid that, create a written record.
Your former spouse may try to get you to discuss (or worse, to agree to) something “off the record,” as it were, and then use that opportunity to take advantage of you. Avoid the hassle; get it in writing.
Utah Family Law, LC | | 801-466-9277
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Holding Marital Property Hostage During a Divorce Just Makes You Look Petty By Braxton Mounteer, Legal Assistant

You may have the idea that you can leverage his or her favorite or most valued things to get a more favorable outcome in your divorce. Holding property that rightfully belongs to the other party (like her jewelry or his tools) makes you look bad any way that you spin it. You may see the situation as a delicate hostage negotiation in order to get what you believe that you deserve, but in reality, if you behave this way, it reveals you as the petty and vengeful spouse you are.
During your divorce, you will be required to divide the marital property between your spouse and yourself and it cannot be avoided. Property division is a major and often, though not always, contentious issue between divorcing parties, getting only more complex the longer the marriage has lasted and the more affluent parties are the. Purposely delaying the division of marital property only makes you look bad and drags out your already expensive divorce.
Every time that you do something just to “get a jab in” on your former spouse, you only look petty and childish. You and your spouse end up making more work (and more profit) for your attorneys and slow the irritating, painful, and angst-inducing process of divorce down.
Be as equitable as possible. Do you really need that specific item of personal property, or are you just trying to be spiteful? If you cannot agree on who should get an item of significant value, or there are not enough items of or there are not enough items (such as a house or a car), or if there are not enough items of property to divide value equally, then sell the item(s) and split the profit.
Take a cool headed and business like approach to the division of property.
Utah Family Law, LC | | 801-466-9277
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Your Divorce Lawyer is Serious About Deadlines By Braxton Mounteer, Legal Assistant

Throughout the divorce process you will have to meet many deadlines.

The court will even provide you with a list of due dates known as a notice of event due dates. If your lawyer does not provide you with a copy, ask for a copy, so that you know the deadlines for yourself.

The consequences for failing to meet the deadlines set by the court and the rules of court in your case can be damaging, even fatal to your case.

When a petition for divorce is filed and served, there is a deadline by which you must file and serve responsive pleadings, meaning your answer or answer and counterclaim. If you don’t respond by the set deadline, default judgment could be entered against you.

If you do not complete discovery or provide your initial disclosures by the deadlines, you may be barred from gathering or presenting evidence or witnesses at trial.

What about extensions of time? You might get an extension on a deadline if you have a legitimate reason to ask for one and if the opposing party agrees to grant you an extension or the court grants your request for an extension. Be careful when asking for extensions, however. If you get an extension on one deadline, the opposing party will almost surely expect a favor from you too in the future.

You are better off (and better for it) by religiously adhering to deadlines. Complying with the deadlines set by the court and the rules of court results in the fewest errors and setbacks and in the fairest and most equitable treatment from the court. And that results in your greatest changes of success.

Utah Family Law, LC | | 801-466-9277

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What Should I Do if My Divorce Is Not Getting Solved Quickly?

This is a great question.

Go find a good (a good, not just any) retired divorce attorney (a divorce attorney, not some other kind of attorney who has no idea how a divorce case works), or, if you are fortunate to know a good (a good) divorce attorney as a personal friend (whether active or retired), go to that divorce attorney friend and recount for this attorney how long your case has been pending from the day it was filed to the present.

In your consultation answer—honestly and forthrightly and with as few adjective and adverbs as possible the questions the attorney you’re consulting with asks you; just the facts (if you are responsible—either in whole or in part—for delays, be honest about that too). The consulting attorney will ask you these questions to help him/her determine both 1) whether your attorney, the opposing party’s attorney, and the court is unreasonably or outright maliciously delaying the resolution of your case; and 2) what options you may have for getting your case moving and progressing expeditiously.

If the attorney you consulted tells you that your case is not progressing at an unduly slow pace, then consider yourself fortunate (even if you’re surprised to learn your case isn’t moving as slowly as you might have expected). Ask the consulting attorney what he/she sees in the handling of your case to this point that you and your attorney can and should do going forward to ensure the case does not lose momentum.

If the attorney you consulted tells you that your case is moving sluggishly, ask the consulting attorney 1) what the problems are; 2) why they are problems and 3) what to do to solve them. Take notes! Ensure that you cover all three subjects with the consulting attorney, so that you can 1) truly identify and understand the problems, 2) confront your attorney with them, 3) what can be done, and 4) why you expect it to be done going forward, if your attorney wants to continue representing you and being paid well to do it. When you do confront your attorney, don’t be a jerk about it. Don’t be a boob, but don’t be a jerk, either. Be businesslike and discuss the matter in a manner most likely to expose the problems, identify the solutions, and start implementing them.

Utah Family Law, LC | | 801-466-9277

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What Do We Do When Equal (50/50) Physical Custody Is Awarded but One Parent Isn’t Bearing the Responsibilities Equal Custody Requires of That Parent?

Recently a reader commented on my answer to this question: Is there a primary parent in joint custody in Utah which is also known as “equal” or “50/50” custody?

They were good comments that reflect the frustrations of many parents in equal custody situations. To summarize them:

  • Equal physical custody should not be awarded unless each parent exercises equal parental responsibility
    • Or at the very least, if one equal custodial parent does more of the work of caring for the children during his/her time when the children are in his/her care, award that parent some (or more) child support for his/her trouble.
  • Equal custody should not be awarded or exercised if an equal custodial parent who is ordered to pay child support does not pay it.

It is absolutely and indisputably correct that for a parent to merit an award to him or her of equal physical child custody that parent must bear parental responsibility equally as well.

The question, then, is: what is equal parental responsibility?

While bearing parental responsibility equally could mean that the parents perform each and every parental task equally and in equal amounts (“if I take the child to the doctor this time, you have to take the child to the doctor the next time”), it does not necessarily require it. Pulling equal weight doesn’t mean pulling the same particular weight at the same particular time. If one parent is happier helping with homework than with athletics or club activities, then it may not be a bad idea for that parent to help with most of the homework and for the other parent to take care of getting the kids to and from soccer practices and games. You get the idea.

You mentioned that your ex-husband can pay but chooses not to pay the $40 he is court-ordered to pay each month for homeschooling costs. That’s inexcusable, if you were awarded sole custody, that wouldn’t magically cause Dad to pay you $40 every month either. So not paying money isn’t a reason not to award equal custody. THAT STATED, I know that some parents who were awarded equal custody want all the benefits of equal custody without meeting any of the associated responsibilities. The only way to keep some (some, not all) of these types honest is to hit them in the pocketbook.

We all know that if spending time with the children were conditioned on paying child support in full and on time (when able, of course), we’d see a lot more child support being paid. Not always, but a lot more. We also all know that if receiving child support were conditioned on ensuring that you showed up for every custody and parent-time exchange on time (when able, of course), we’d see a lot more child support being paid as well.

Unfortunately*, Utah’s law is “If a parent fails to comply with a provision of the parenting plan [i.e., the physical custody and parent-time awards] or a child support order, the other parent’s obligations under the parenting plan or the child support order are not affected.” (Utah Code § 30–3–10.9(9)) and “A parent may not withhold parent-time or child support due to the other parent’s failure to comply with a court-ordered parent-time schedule.” (Utah Code § 30–3–33(9))

You also referred to the situation in which Dad never attends health care appointments. This is a hard question to analyze, but here’s my reasoning:

  • If Dad can take the kids to these appointments without placing his job in jeopardy, he should. That way, neither parent is burdened too much with appointments and each parent stays apprised of their children’s health and health care.
  • But if Dad works a 9 to 5 job, and if the appointments take place during the 9 to 5 work day and you’re a stay-at-home parent who homeschools the kids, doesn’t it make more sense for you to take the kids to these appointments? Why make Dad do it just to make him do it? Why make Dad do it when you can do it easier and without placing Dad’s job in jeopardy?
  • On the other hand, if Dad could bear the health care appointments burdens with you equally, but refuses to do so, resulting in you spending all the time and making all the effort required to take care of this important custodial responsibility, that may justify awarding you sole physical custody of the children.

Utah Family Law, LC | | 801-466-9277

*Again, and in fairness (and while I don’t have any data to support this), I’d bet that conditioning custody and parent-time on paying child support and conditioning the payment of child support on the child support recipient complying with custody and parent-time exchanges causes more problems than it solves. Maybe it doesn’t. If there is no data, I think it’s worth experimenting with to find out.

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Elder v. Elder – 2024 UT App 68 – enforcement vs. modification

Elder v. Elder – 2024 UT App 68



Opinion No. 20210902-CA Filed May 9, 2024

Second District Court, Farmington Department

The Honorable David M. Connors No. 154700355

Julie J. Nelson and Jaclyn Robertson, Attorneys for Appellant Steven C. Tycksen, Attorney for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 The district court issued an order requiring Matt Blake Elder to reimburse his ex-wife, Brittany Lee Elder, for the amount she had paid to satisfy a loan on a townhouse that she had been awarded in the divorce.[1] Matt challenges this ruling on appeal, arguing that it was a procedurally improper modification of the couple’s divorce decree. For the reasons set forth below, we affirm.


¶2 Brittany and Matt were married in 2008. In early 2015, Brittany filed a petition for divorce. Later that year, Brittany and Matt entered into a stipulated agreement that the district court subsequently adopted in a Decree of Divorce (the Decree). Under a “Division of Property” heading, the Decree divided the couple’s real property, vehicles, and other personal property. Matt received the “marital home along with any accompanying debts and/or equity.” Of note here, Brittany was awarded a townhouse “as an equalization of the distribution of the assets.” The Decree specified that “Matt will be responsible for any loans associated with the townhouse and have them paid off within 120 days of signing this Stipulation.”

¶3        A separate provision in the Decree was captioned “Remedies on Default.” It stated that in “the event that either party defaults in her or his obligations, or must seek relief from the Court in the enforcement of the Decree of Divorce, the nonprevailing party shall be liable to the other party for all reasonable expenses, including attorneys’ fees and court costs actually incurred.”

¶4        Matt failed to remove the loan on the townhouse within 120 days. After that 120-day period expired, Brittany filed a motion for an order to show cause. In this motion, Brittany asked the court to hold Matt in contempt for failing to comply with several terms of the Decree—including, of note here, his obligation to pay off the loan associated with the townhouse. The district court later issued an order in which it refused to find Matt in contempt on the townhouse issue, but it did order Matt to “remove all liens on the townhouse” within 30 days. Matt failed to comply with this order.

¶5        In 2017, Matt filed for bankruptcy. Later that year, Brittany sold the townhouse. “[P]ursuant to a short sale agreement she made with the bank,” she paid off a discounted loan balance of $143,165.

¶6        In April 2019, Brittany filed another motion for an order to show cause relating to the townhouse. In this motion, Brittany requested a judgment in excess of $180,000, a figure that included the final loan balance, realtor’s commissions, closing costs, and repairs that she alleged were necessary to make the townhouse habitable.

¶7        During a hearing in July 2020, the district court noted that a domestic relations commissioner had certified for hearing the issue of “the amount [Matt] should pay [Brittany] due to his failure to have the liens removed from the townhouse.” At that point, Brittany’s counsel expressed the desire to conduct discovery on the issue. In response, Matt’s counsel suggested that she wasn’t sure if discovery was warranted because there was “no petition to modify pending,” after which she asked the court to “clarif[y]” whether it would “allow[] there to be discovery between the parties.” The court responded that it was allowing “discovery” on “what amounts, if any,” it should order Matt to pay Brittany for his “failure to have the liens removed from the townhouse,” and the court specifically ruled that the parties could depose each other on this if they wished.

¶8        Brittany subsequently submitted interrogatories, a request for production of documents, and requests for admission to Matt. For his part, Matt issued several subpoenas duces tecum to financial institutions. At a pretrial hearing in November 2020, Brittany argued that Matt’s responses to her requests for admission had been inadequate. Over the protest of Matt’s counsel, the court agreed that Matt’s responses had been inadequate and ordered Matt to submit more detailed responses. In the course of that hearing, Matt never argued that he was being deprived of the opportunity to conduct discovery of his own.

¶9        A few weeks later, the court held an evidentiary hearing on the question of “potential damages connected with the failure to deliver the title” to the townhouse “free and clear of liens.” At that hearing, both parties presented extensive arguments about their positions.

¶10      After almost a year of additional litigation, the court issued a written ruling on Brittany’s motion for an order to show cause. There, the court first noted that the provision in the Decree that made Matt “responsible” for any loans associated with the townhouse had “never been modified.” The court also ruled that Matt’s bankruptcy had not discharged his obligations relating to the townhouse.

¶11      The court then found that Matt had “failed to satisfy, pay off or remove the liens related to the loans associated with” the townhouse and that Matt’s failure had “forced” Brittany to sell the townhouse in order to pay off the discounted loan balance. The court also found that the “actual amount paid by” Brittany to the bank “to remove the lien” on the townhouse “that was associated with the loan was $143,165.00.” And it further found that the “required payment of this amount” by Brittany “was a direct result of [Matt’s] failure to comply with the provisions of the Decree of Divorce.” The court accordingly awarded Brittany “the actual amount she paid the bank, $143,165,” plus post-judgment interest, though it then determined that she was not entitled to any additional amounts related to the renovation and sale of the townhouse. Finally, the court awarded Brittany her “reasonable expenses, including attorney fees and court costs actually incurred, related to the issue of [Matt’s] failure to comply with his obligations” under the Decree.


¶12 Matt challenges the district court’s ruling granting Brittany’s motion for an order to show cause. In Matt’s view, the ruling was not a valid enforcement of the Decree but instead improperly modified it. “We review procedural issues for correctness and afford no deference to the lower court’s ruling.” Berman v. Yarbrough, 2011 UT 79, ¶ 12, 267 P.3d 905.[2]


¶13 Matt argues that when the district court ordered him to reimburse Brittany for what she had paid to satisfy the loan on the townhouse, the court modified the Decree. In Matt’s view, because Brittany had only filed an enforcement action, not a modification action, this ruling was procedurally improper. We disagree with Matt’s assessment of the nature of the ruling.

¶14 District courts enjoy “inherent” authority, “when properly invoked,” to “enforce a final judgment.” Little Cottonwood Tanner Ditch Co. v. Sandy City, 2016 UT 45, ¶¶ 23–24, 387 P.3d 978 (quotation simplified); see also id. ¶ 33 (explaining that district courts may “make such orders as may be necessary to carry out and give effect to their decrees” (quotation simplified)). “If a party fails to comply with a specific directive of a judgment, another party to the judgment may move to enforce this directive.” Id. ¶ 24. However, a “court’s power to enforce a judgment is confined to the four corners of the judgment itself.” PacifiCorp v. Cardon, 2016 UT App 20, ¶ 6, 366 P.3d 1226 (quotation simplified). And a “motion to enforce cannot be used to take up matters beyond the contours of the judgment and thereby short-circuit the usual adjudicative processes.” Berman v. Yarbrough, 2011 UT 79, ¶ 15, 267 P.3d 905 (quotation simplified). A motion to enforce is thus “procedurally improper” where a judgment contains neither an “unequivocal mandate” nor a “clear directive” enjoining “the respondent to undertake some action.” Id. (quotation simplified). This is so because, “without a directive or unequivocal mandate, there is nothing for the court to enforce.” Id.[3]

¶15 Separate from the enforcement power, courts in some instances have power to modify a final judgment that has already been entered. And we’ve previously recognized that a key difference between the power to modify and the power to enforce is that the latter does “not generally extend to modifying the substantive rights of parties that have previously been agreed to or adjudicated.” Robertson v. Stevens, 2020 UT App 29, ¶ 8, 461 P.3d 323. In the family law context, “proceedings to modify a divorce decree . . . must be commenced by filing a petition to modify.” Utah R. Civ. P. 106(a). And a petition to modify allows courts to “revisit many of the provisions contained in a typical divorce decree, including provisions pertaining to child custody, child support, alimony, property distribution, and debts,” under the terms set forth by certain statutes. Robertson, 2020 UT App 29, ¶ 7.

¶16      Here, Brittany filed a motion for an order to show cause, which, as noted, was the procedural mechanism at the time for filing an enforcement action. But Brittany did not file a petition to modify the Decree. The question before us, then, is whether the district court moved beyond its enforcement powers when it ordered Matt to reimburse Brittany for what she had paid to satisfy the loan on the townhouse. Put differently, the question is whether this ruling was authorized from within “the four corners of the judgment,” Little Cottonwood, 2016 UT 45, ¶ 24 (quotation simplified), or whether it instead “modif[ied] the substantive rights of [the] parties,” Robertson, 2020 UT App 29, ¶ 8. In our view, this was indeed an enforcement ruling, as opposed to a modification, because it was grounded in the four corners of the Decree itself and did not alter the parties’ substantive rights.

¶17 “We interpret a divorce decree according to established rules of contract interpretation.” Osborne v. Osborne, 2011 UT App 150, ¶ 6, 260 P.3d 202 (quotation simplified). “When interpreting a contract, a court first looks to the contract’s four corners to determine the parties’ intentions, which are controlling.” Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179. “If the language within the four corners of the contract is unambiguous, then a court does not resort to extrinsic evidence of the contract’s meaning, and a court determines the parties’ intentions from the plain meaning of the contractual language as a matter of law.” Id. Finally, in “interpreting a contract, we determine what the parties intended by examining the entire contract and all of its parts in relation to each other, giving an objective and reasonable construction to the contract as a whole.” G.G.A., Inc. v. Leventis, 773 P.2d 841, 845 (Utah Ct. App. 1989).

¶18 The Decree in question stated that “Matt [would] be responsible for any loans associated with the townhouse and have them paid off within 120 days of signing this Stipulation.” And it further explained that the townhouse was being awarded to Brittany “as an equalization of the distribution of the assets.” In this sense, the Decree plainly contemplated that Brittany would receive the townhouse free and clear. But she didn’t. As indicated, Matt failed to pay off the loan within 120 days. And when the court subsequently issued another order requiring Matt to remove the liens within an additional 30-day period, Matt failed to comply with that order too.

¶19 In the ruling at issue, the court found that Brittany was ultimately “forced to sell” the townhouse and “pay the discounted bank loan balance in the amount of $143,165,” and it further found that the “required payment of this amount” by Brittany “was a direct result of [Matt’s] failure to comply with the provisions of the Decree.” Matt has not challenged these findings on appeal.

¶20 In light of these findings, the order requiring Matt to reimburse Brittany was a proper exercise of the court’s enforcement power. The language of the Decree didn’t narrowly require Matt to pay a particular amount to a particular bank. Rather, the provision in question was worded more broadly, requiring Matt to “be responsible for any loans associated with the townhouse” and requiring him to “have them paid off within 120 days.” (Emphasis added.) As a result, when Brittany was subsequently “forced” to pay the loan off herself due to Matt’s failure to comply with his obligations, the court’s decision to place that financial burden back onto Matt’s shoulders did nothing more than “carry out and give effect” to the Decree’s own terms. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified).

¶21      Matt responds on several fronts, but we find none of them availing.

¶22      First, Matt argues that under the principles set forth in Gullickson v. Gullickson, 2013 UT App 83, 301 P.3d 1011, the court’s order could only have been accomplished through a modification action. We disagree. In Gullickson, the divorce decree had set forth a specific arrangement for how to deal with the marital home after the divorce: namely, the wife was permitted to live in it for a period of five years, during which period she was responsible for making the mortgage payments; at the end of the five years, the husband would be required to either buy out the wife’s share of the equity in the home or instead sell it and give her half of the proceeds. Id. ¶ 2. Of some note, the arrangement under which the wife could remain in the home for five years was “prompted at least in significant part” by the “ongoing special needs” of the parties’ son. Id. ¶ 22. When the wife subsequently faced a changed financial situation, however, she decided to move from the home earlier than planned. Id. ¶ 4. To facilitate this, she “filed a petition to modify the divorce decree,” asking the court to require the husband to either buy her out sooner than was required by the decree (thus changing the time-period set forth in that decree), or to instead agree that she could move from the home and rent it out in order to help her pay the mortgage. Id. ¶ 4. The district court granted the wife’s request and directed the husband to make that choice. Id. ¶¶ 6–7, 13.

¶23 On appeal, we considered various questions relating to whether the district court had properly followed the modification procedures. Id. ¶¶ 21–25. Drawing on aspects of that discussion, Matt now suggests that Brittany’s request in this case could only have been brought as a modification petition. But unlike the wife in Gullickson, Brittany did not file a petition to modify her divorce decree; rather, she filed a motion for an order to show cause, so she chose an entirely different procedural tack all along. Moreover, unlike the wife in Gullickson, Brittany did not ask the court to change any particular term of her divorce decree. Rather, when Brittany asked the court to order Matt to reimburse her for the pay-off amount on a loan that Matt was supposed to have paid from the beginning, Brittany was asking for Matt to be held “responsible” for that loan, which is what her divorce decree already required. Thus, Gullickson involved a modification because the order changed that divorce decree’s terms; by contrast, this case involved an enforcement action because it sought to effectuate the divorce decree’s terms. Gullickson therefore doesn’t mean that Brittany could only proceed through a modification action.

¶24      Second, Matt argues that because the Decree required him to pay off any loans within 120 days, and because the amount at issue had been paid by Brittany much later than those 120 days, the court’s order effectively changed the Decree’s essential terms, thus constituting a modification. If the Decree had only said that Matt was required to pay off a particular loan to a particular bank within 120 days, Matt’s argument might have a little more force (although we might still have some skepticism). But as noted, the Decree wasn’t worded that narrowly. In addition to the language Matt relies on, the Decree said that “Matt will be responsible for any loans associated with the townhouse,” and it further noted that Brittany was being awarded the townhouse “as an equalization of the distribution of the assets.” (Emphasis added.)

¶25 As indicated, when reading contracts or divorce decrees, we interpret surrounding provisions in harmony with each other. The unmistakable intent of the Decree was to require Matt to assume the financial obligations associated with the townhouse. When Matt repeatedly failed to do so in a timely manner, the court had authority to “make such orders as may be necessary to carry out and give effect” to these provisions. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified). Since it’s uncontested on appeal that Matt’s failure to timely pay off the loan “forced” Brittany to sell the townhouse, the order in question placed the financial cost of that sale back onto Matt, thereby making him “responsible” for the loan, which is what the Decree always required.

¶26 Third, Matt complains of the alleged unfairness that resulted from the court treating this as an enforcement action, as opposed to requiring Brittany to proceed through a petition to modify. According to Matt, if this had been filed as a modification petition, the rules would have provided him with delineated discovery powers. In Matt’s view, these discovery powers would have allowed him to obtain evidence to support various defenses, such as “whether Brittany could have (or even did) take mitigating action,” whether Brittany received any benefit from living in the townhouse between the time of the Decree and when Brittany sold it, and whether “the marital estate was smaller than the parties thought when they stipulated to its division.”

¶27      Matt’s concerns seem grounded in the fact that, both before and after the 2021 amendments, the rules don’t provide for formalized discovery relating to an enforcement action (whether filed as an old motion for an order to show cause or instead through a current motion to enforce). But the question of whether a party should automatically be entitled to discovery in an enforcement action is a question best left to those tasked with drafting the rules. Here, however, Brittany filed a motion for an order to show cause, and as explained above, that motion was warranted to enforce the terms of the Decree. We see no basis for overturning the district court’s ruling simply because the rule drafters have not provided for automatic discovery in such cases.

¶28    In any event, even if it’s possible that the absence of automatic discovery might result in some unfairness in some other enforcement action, Matt is not in a position to complain about any such unfairness here. As noted, the district court specifically allowed the parties to conduct discovery—including taking depositions, if the parties desired—on “what amounts, if any,” the court “should order [Matt] to pay [Brittany] due to the failure to have the liens removed from the townhouse.” In reliance on that, Matt issued several subpoenas duces tecum to financial institutions. And Matt never argued below that he was being deprived of the opportunity to conduct any additional discovery.

¶29      Moreover, Matt also has not persuaded us that any of the proposed evidence would have constituted a valid defense to Brittany’s request for relief. Under the Decree, Brittany was entitled to receive the townhouse without any loans as of 120 days after the stipulation was signed. Nothing in the Decree obligated her to take any mitigation efforts if Matt failed to comply with his obligations to pay off the loans, and any benefits that she received from living in the townhouse in the ensuing years were benefits that she was always entitled to receive. As for Matt’s claim that the parties underestimated the marital estate’s size, we note that Matt stipulated to the terms of the Decree. If he later thought that some error had infected that stipulation or the ensuing Decree, he could have made his own request to somehow alter or modify it. But what Matt wasn’t entitled to do was simply not comply with its terms. And in the meantime, Brittany was entitled to ask the court to enforce the Decree as written, which is what she did.

¶30      In short, we conclude that the district court’s order appropriately “carr[ied] out and [gave] effect to” the terms of the Decree. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified). Because of this, the district court did not err in granting Brittany’s motion for an order to show cause.

¶31 As a final matter, Brittany has requested an award of attorney fees and costs that she incurred in this appeal, and she has done so pursuant to the same provision from the Decree that authorized the fee award she received below. That provision stated that in “the event that either party defaults in her or his obligations, or must seek relief from the Court in the enforcement of the Decree of Divorce, the nonprevailing party shall be liable to the other party for all reasonable expenses, including attorneys’ fees and court costs actually incurred.”

¶32      “If the legal right to attorney fees is established by contract, Utah law clearly requires the court to apply the contractual attorney fee provision and to do so strictly in accordance with the contract’s terms.” Vierig v. Therriault, 2023 UT App 67, ¶ 13, 532 P.3d 568 (quotation simplified), cert. denied, 537 P.3d 1013 (Utah 2023). And as a general matter, “when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Tronson v. Eagar, 2019 UT App 212, ¶ 39, 457 P.3d 407 (quotation simplified). Because Brittany has prevailed on appeal, she is entitled to her fees reasonably incurred on appeal. We therefore remand this case to the district court for determination of those fees and an entry of that award.


¶33      The ruling in question was a valid exercise of the district court’s power to enforce the Decree. As a result, we affirm the court’s decision and remand for an award of attorney fees reasonably incurred on appeal.

Utah Family Law, LC | | 801-466-9277

[1] Because the parties share a last name, we’ll refer to them by their first names moving forward, with no disrespect intended by the apparent informality.

[2] In his opening brief, Matt surmised that the district court’s ruling might be read as a contempt ruling, and he then argued that the ruling was not justified under the court’s contempt powers. In her responsive brief, Brittany declined to defend the ruling on this basis, instead insisting that it was a valid enforcement action. We accordingly address the ruling solely on those terms.

[3] The rule in effect at the time that Brittany filed the motion at issue allowed her to file an order to show cause, and it further stated that such a motion could be granted for the “enforcement of an existing order.” Utah R. Civ. P. 7(q) (2019). The cases we’ve discussed above referred to a court’s enforcement power.

Under a rule that became effective in May 2021 and that remains in place, a motion for an order to show cause in a “domestic relations action[]” is now referred to as a “motion to enforce.” See Utah R. Civ. P. 7B(a), (i), (j) (2023). (The same is true in civil cases more generally under rule 7A of the Utah Rules of Civil Procedure.) Rule 7B further provides that its process “replaces and supersedes the prior order to show cause procedure.” Id. R. 7B(j). As with the old regime, however, the new one turns on the court’s enforcement power. See id. R. 7B(a) (allowing a party to file a motion to “enforce a court order or to obtain a sanctions order for violation of an order”).

Neither party in this case has argued that this new rule was intended to alter the substantive scope of a court’s enforcement power, much less that the new rule did so in a manner that would change the outcome of this case. Having surveyed the matter ourselves, we see no authority suggesting that such a change was intended.

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Should You Stay Friends with Your Former Spouse? By Braxton Mounteer

Whether you should be or try to be friends with your spouse after a divorce is a tough question to answer. Many divorced people continue to care about each other after divorce. Some even find their personal relationship between each other improves. Most maintain an icy distance from each other. I won’t say that being truly friendly can’t be accomplished after divorce, but the question really is: should it?

If you have children, at the very least you must maintain a respectful relationship with the children’s co-parent (even if you have to fake it, in my opinion). Just because you and your former spouse have differences does not mean that your children must share in those differences. Maintaining a co-parenting relationship that doesn’t burden the children is in their best interest. They deserve it. It’s the least you can do for them.

Side note here: I know there are those of you reading this who were innocent victims of a spiteful spouse in your divorce. That you were the class act all along and continue to be, while your ex-spouse remains antagonistic toward you. I know about those of you treat your ex-spouse by Golden Rule post-divorce, while your ex-spouse does not reciprocate. As a legal assistant, I see the ex-spouses who hypocritically hold you to a standard they themselves do not follow. This is not fair, not even close, but for the sake of your children’s well-being, you need to know that sinking to the same level as your petty, spiteful, even malicious ex-spouse would benefit no one and only make life harder for the kids. Doing the right thing matters most when doing the right thing is hard.

Sometimes it may be unavoidable to have some kind of continuing relationship with your ex-spouse. Are you coworkers? Do you have mutual friends or engage in the same activities that neither of you is willing to give up? If so, you must determine mutual friends and activities are worth making the effort to get along with your ex-spouse. If they aren’t, you can’t complain about having to give those things up for the sake of achieving your goal of having nothing to do with your ex-spouse post-divorce.

We have all heard a story of an “ ugly divorce”. Most people burn whatever bridge that they had or may have had with their spouses over the course of that process.

The fact is that the right thing to do, if only for your own sake and without consideration for your ex-spouse, is to recognize your own failings that contributed to the failed marriage (and don’t misunderstand me; if you’re not at fault, you’re under no obligation to apologize falsely) and to forgive your ex for his or her faults and the hurt he or she caused you, so that you can put your troubled past behind you as best you can as you move on with life after divorce. “Hate is a poison more deadly to the hater than the hated.” If all you can do is make peace with the pre-divorce past, that’s invaluable. If you can do one better and bury the hatchet, becoming friends, though no longer spouses, don’t let your pride stand in the way of that. If you do, you’ll regret it.

Utah Family Law, LC | | 801-466-9277

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Is There Anything I Can Do for Winning Custody After the Gal Report Is Favoring My Ex? Is Paying More to My Attorneys Worth It or No?

After you ask, “Is there anything I can do for winning custody after the GAL report is favoring my ex? Is paying more to my attorneys worth it or no?,” then you need to ask these questions:

Is the GAL’s report favoring my ex accurate? Otherwise stated, “Am I unfit to be awarded custody (whether that be sole custody or joint custody or equal custody?” If you are unfit to be awarded the custody you want or any kind of custody, you may have different and bigger obstacles than the GAL’s report standing in your way.

If the GAL’s report favoring you ex is inaccurate and/or biased, are the inaccuracies and biases significant and relevant?

If so, can you prove it? Otherwise stated, do you have admissible evidence that conclusively establishes the the GAL’s report is inaccurate and/or biased? If you have evidence of some minor or irrelevant inaccuracies, that likely won’t be enough to persuade the court to disregard the report and recommendations of the GAL. If, however, you can show the GAL is incompetent, did shoddy work, and/or indulged personal biases irrespective of the facts, that might (might) be enough to get the report thrown out or at least to get the court to give the report less credence.

So, in response to the question of whether it is worth it to pay your attorneys more money in an effort to discredit the GAL’s reports and recommendations, if you conclude (honestly) that 1) you are fit to be awarded the custody award you seek AND you can prove it; 2) the GAL’s report and recommendations are significantly inaccurate and/or biased AND you can prove it; 3) you have the money and a good attorney necessary to make a winning presentation to the court; AND 4) you conclude it’s worth risking the money and effort to make the attempt, then the answer is yes.

Utah Family Law, LC | | 801-466-9277

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My Wife Is Divorcing Me Because I Am Not Rich Enough. She Said It Will Take Me Years to Make Her Feel Financially Secure. I Was There for Her When She Had Mental Breakdowns. What Should I Do?

If your wife really is divorcing you, and not merely threatening to divorce you, because 1) you are not rich enough to suit her, and 2) you are not a lazy bum and you are doing your best to support her financially as a spouse, then rejoice–good riddance to bad rubbish. Cut your losses now. You will be better off without her. I know you may think “I’ll never find someone as wonderful as she is again,” but a woman who would divorce you for not being rich enough is a woman who does not love you, who will not be the support you need and deserve, and who will only be a burden and a detriment to you and your children (if and when they would come along).

If your wife is not really divorcing you, but is threatening to divorce you, and claiming it is because 1) you are not rich enough to suit her, and 2) you are not a lazy bum and you are doing your best to support her financially as a spouse, then you should ask yourself the following questions:

  1. Is she really that shallow? Or is the “you’re not rich enough” perhaps a pretext for other feelings and concerns of hers? You mentioned that you were there for her mental breakdowns–is the “your not rich enough” symptomatic of a mental or emotional disorder?
  2. Is this perhaps a matter of youthful inexperience and naivete? A lack of maturity?
  3. Did she grow up rich and doesn’t understand that it’s not the norm?
  4. Did she grow up poor and goes through life terrified of staying poor?
  5. Is she deluded?

If her “I’m going to divorce you because you’re not rich” is not really what she’s thinking of feeling, it’s worth talking with her and with a minister and/or someone whose lifestyle you both wish to emulate and find out what’s realistic and what’s not, what’s achievable and what’s not. If your wife can’t accept reality, then see my answer above. It’s tragic that she would chuck a good man just because he’s not rich enough, but that’s not your problem nor is it a problem you can solve for her.

Utah Family Law, LC | | 801-466-9277

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2024 UT App 54 – Tilleman v. Tilleman – custody factors, income, fees

2024 UT App 54 – Tilleman v. Tilleman



Opinion No. 20210637-CA Filed April 11, 2024

Fourth District Court, Provo Department

The Honorable M. James Brady No. 164402522

Julie J. Nelson, Attorney for Appellant, Douglas B. Thayer, Andy V. Wright, and Jessica Griffin Anderson, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1        Michael Robert Tilleman (Father) and Michal Christine Tilleman (Mother) were married and share one child (Child). Following rather contentious divorce proceedings, the trial court awarded sole legal custody of Child to Mother but awarded the parties joint physical custody. The court also imputed federal minimum wage income to Mother for child support purposes, and it awarded her attorney fees and costs.

¶2        On appeal, Father makes various arguments challenging the court’s legal custody award. He also contends that the court abused its discretion in imputing federal minimum wage income to Mother and in awarding her attorney fees and costs. Although we affirm several aspects of the court’s legal custody award, we nevertheless hold that the court abused its discretion in applying the wrong legal standard and accordingly reverse and remand for the court’s consideration of all the statutorily mandated custody factors. We also reverse the court’s imputation of Mother’s income and its attorney fee award and remand for further proceedings.


¶3        Mother and Father married in 2013, and Child was born a little over a year later. In 2016, following a separation, Father filed a petition for divorce. This was soon followed by Mother’s counter-petition for divorce. The trial court characterized the ensuing litigation as “contentious” and the parties as “unusually accusatory, intransigent, and uncooperative.” We limit our recounting of the divorce proceedings to facts relevant to the issues raised on appeal.

¶4        In 2018, the court entered a stipulated, bifurcated decree of divorce reserving for trial, in relevant part, the issues of custody, parent-time, child support, and attorney fees. Although the parties each initially sought sole physical custody and joint legal custody of Child, by the time of trial they had each amended their pleadings to request sole physical and sole legal custody of Child.

¶5        In conjunction with her counter-petition for divorce, Mother also filed a motion asking that the court order Father to undergo a psychological examination under rule 35 of the Utah Rules of Civil Procedure “to properly address his ability to parent” Child.[2] The motion alleged that Father “has exhibited intense anger toward [Mother] and has engaged in mental and emotional abuse,” that “such anger has been exhibited toward” Child, and that he “may be suffering from mental health conditions.”

¶6        Father opposed Mother’s rule 35 motion and denied its allegations. In turn, he asked the court to order that Mother undergo a rule 35 evaluation, alleging that she “has been verbally and physically abusive towards” him, that she “is unable to control her anger and aggressions towards” him, and that “recent irrational and inappropriate actions, behaviors, and instability indicate that she may be suffering from some form of mental illness.”

¶7        In 2017, at a hearing on temporary orders, Mother’s counsel informed the trial court that the parties had stipulated, among other things, “that either party can request and . . . the other party will participate in a Rule 35 mental health exam as long as the requesting party pays the cost up front.” Accordingly, the court’s temporary order included a provision stating that “[e]ither party may request the other party to participate in [a] Rule 35 examination at the requesting party’s expense.”

¶8        Mother subsequently provided Father with a list of three potential rule 35 evaluators, of which Father selected one (First Expert) to conduct his exam. When First Expert requested that Father sign medical releases for his psychological health records, Father refused. In response, Mother filed a motion requesting that the court order Father “to sign and execute all necessary medical releases, upon presentation by [First Expert], so that [Father’s] Rule 35 mental examination can proceed as expeditiously as possible.” At a hearing before a commissioner on the matter, Father argued that he never agreed to sign medical releases and that his understanding of the stipulation was “that he was agreeing to an independent, objective, standardized psychological test.” He also argued that releasing his medical records “prejudices him down the road” because “it allows information that would not otherwise be admissible to become admissible.”

¶9        In ruling on the motion, the commissioner first stated that because the trial court—and not a jury—would be the finder of fact in this case, he did not consider prejudice “to be a significant issue.” Next, in addressing the scope of the rule 35 exam, the commissioner stated that based on his decades of experience interacting with mental health professionals, “the one thing that they all assure me is true [is that] the best predicter of future behavior is past behavior.” The commissioner also noted that the parties had not submitted affidavits from professionals indicating what their usual practice is for such evaluations. Thus, the commissioner recommended, “If it is the Rule 35 examiner’s professional opinion that certain information would assist him in completing his evaluation/report, then both parties shall cooperate in good faith and sign whatever releases for records or information the evaluator wants[.]” Father objected to the commissioner’s recommendation, but the trial court overruled his objection and ordered him to sign the requested medical releases.

¶10 Upon completion of the rule 35 evaluation, First Expert reached the following conclusions, as summarized by the trial court. First Expert noted that “Father was so guarded and defensive when he took the psychological testing that credible information from testing is not available.” First Expert did not observe Father with Child as part of the evaluation. Nevertheless, First Expert concluded, among other things, that Father exhibited “varying degrees” of several negative personality traits; that he “is a very persistent person,” which when “utilized to intimidate and control others” can cause substantial harm to himself and others; and that he “tends to place his own interests before those of others and is not invested in cooperative relationships.” See also infra note 5. First Expert also recommended against joint legal custody of Child.

¶11      In anticipation of trial, Father filed a motion in limine to exclude First Expert’s testimony, contending that his “report and his corresponding testimony have not been shown by [Mother] to be reliable, based on sufficient facts or data, and reliably applied to the facts as required by rule 702 of the Utah Rules of Evidence.” See Utah R. Evid. 702(b). In support of his motion, Father included a report from his own expert (Second Expert) who reviewed the rule 35 evaluation. Second Expert opined, among other things, that “the methodology employed” by First Expert “did not comport with generally accepted standards of practice.” He further stated that First Expert’s “recommendation against joint legal custody is concerning because there is no indication the purpose of the evaluation was to aid the Court in determining custody.”

¶12 Following a hearing, the court ruled that First Expert would be permitted to testify at trial because his “report and his . . . procedures, his methodology, and his data gathering and his qualifications meet that low threshold of showing an indicia of reliability.” But because First Expert’s “qualifications and methodology don’t meet the requirements for a custody evaluation,” the court limited his testimony by precluding him from offering his opinion on that subject at trial.

¶13 Toward the end of 2020, the court held a ten-day bench trial, after which it entered thirty-three pages of findings of fact and conclusions of law. In addressing custody, the court prefaced its findings by discussing Utah Code sections 30-3-10(2) and 30-3-10.2(2), which govern child custody determinations. Section 30-3-10(2) states, with our emphasis, that “[i]n determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent” and then lists various factors. The court interpreted that section to mean that it “is not required to make findings on all factors listed in” that section. Further, section 30-3-10.2(2) provides, again with our emphasis, that “[i]n determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10 and” additional factors listed in section 30-3-10.2(2). The court stated that it understood the interplay between the two sections to mean that when considering joint legal or physical custody of a child, it is “obligated to address the enumerated factors in” section 30-3-10.2(2), but that its consideration of each factor listed in section 30-3-10(2) is not mandatory.

¶14      The trial court then proceeded to make extensive findings pertaining to custody and parent-time, as summarized below. The court found that “[a] primary condition that permeated the marriage was Father’s underlying hostility,” which also “affected the first few years of [Child’s] life and [Father’s] early relationship with, and care for” Child. Throughout Child’s life, Mother has been Child’s primary caregiver. Although “Father rarely, if ever, held, fed, changed, or played with” Child during the marriage, since the separation he has cared for Child during his parent-time. Father and Mother have “demonstrated a strong desire for parent-time since their separation,” and Father “has rearranged work schedules and career goals to accommodate as much time as possible with” Child. His interactions with Child have “significantly improved,” and he “has bonded more with her.” But his “anger towards Mother occasionally interferes with his ability to see, understand, and meet the needs of” Child. Child “has a strong bond with Father” and “enjoys spending time with” him.

¶15 The court found that Mother consistently demonstrated the ability to meet Child’s developmental needs and that Father had demonstrated an improvement in his ability to do so, although the court was unsure whether this was a long-term change. Each parent was able to meet Child’s physical needs and to function as an effective parent, although Father’s “apparent lack of insight of how his anger towards Mother, and his efforts to embroil Mother in allegations of abuse,” see infra ¶ 17, “have physically impacted” Child and have interfered with his parenting abilities. The court determined that both parents have negatively impacted Child’s emotional wellbeing—albeit Mother to a lesser extent—through their poor responses and behaviors when in each other’s presence.

¶16      The court found that although “each parent has shown that they have the capacity and willingness to function as a parent to” Child, “[t]he difficulty lies in their inability to co-parent and properly interact with the other parent,” particularly during drop-off and pick-up, as well as when communicating about Child. Regarding drop-off and pick-up, the court stated that “[t]he difficulty comes about by actions of both parents, although Father more consistently causes [Child’s] transitions to be difficult” by not encouraging her to transition to Mother’s care and by saying things that “weigh negatively on [Child’s] emotions in a manipulative and passive aggressive manner.” Mother also occasionally expressed displeasure about Father’s behavior in Child’s presence. Concerning the parents’ communication, the court stated that in 2017, “[d]ue to the high level o[f] conflict,” it ordered Mother and Father to communicate through a third-party service that reviewed and, if necessary, edited and revised the messages they sent each other. The third-party service had to make substantial edits to many of Father’s messages and advised him that it would “not send emails that are threatening.” Because Father also became adversarial with the third-party service, it withdrew, and the parties had to find another communication intermediary. But in the months leading up to trial, communication between the parties had “been relatively civil.”

¶17 The court next expressed concern regarding Father’s “emotional and sometimes indirect physical abuse of” Child through his repeated claims, “without sufficient justification,” that Mother was physically abusive toward Child. Specifically, between 2017 and 2020, Father made multiple reports of abuse to various police departments, the Division of Child and Family Services (DCFS), and medical providers. This “exposed [Child] to unnecessary emotional trauma and invasive physical examinations” and never resulted in criminal charges being filed against Mother or in DCFS taking enforcement action against her. “When the agencies did not confirm his opinion, [F]ather became overly focused, argumentative, and belligerent” and “was unwilling to accept the many conclusions of DCFS.” The court found that “Father’s reports of abuse were vexatious and were calculated and designed to harm Mother,” and he either “was not aware of, or did not care about the emotional harm he was causing [Child] through the continuous filing of unsupported claims of abuse.”

¶18      The court then addressed Father’s rule 35 evaluation.[3] At trial, First Expert, Second Expert, and another expert (Third Expert) testified about the evaluation. The court noted that based on First Expert’s own testimony, it appeared that First Expert “primarily identified personality traits of [Father] from testing which [First Expert himself] considered invalid.” The court also agreed with many of Second Expert’s critiques of First Expert’s opinions, including that First Expert’s “opinions based on testing should not be considered” because First Expert “testified that the test results were unreliable due to Father’s high degree of defensiveness”; that First Expert “did not utilize many of the standard tests and methods for determining parenting capacity and therefore his opinions on parenting capacity are not helpful”; and that First Expert did not observe Father interact with Child. Accordingly, the court “found little value in much of [First Expert’s] diagnostic expert opinions,”[4] but it noted that, based on other trial testimony and on its own review of some of the records that First Expert examined that were also submitted into evidence, it agreed with his conclusions regarding Father’s negative characteristics and personality traits. Specifically, the court noted Father’s “historical demonstration of grandiosity, entitlement, interpersonal exploitativeness, lack of empathy, high levels of persistence, rigidity, lack of agreeableness, vexatious intimidation, along with a tendency to resort to arrogant and intimidating behaviors toward others, particularly when encountering others whom he believes stand in his way.” The court, however, rejected several of First Expert’s other opinions.[5]

¶19 The court also found Third Expert to be “qualified,” “credible,” and “an unbiased witness.” Third Expert testified that in counseling sessions, he “worked with Father to understand how to modify his behavior” and that Father had demonstrated improvement. Third Expert described Father’s current character traits as “[p]ersistent,” “[i]ntelligent,” “[e]ven keeled,” “[c]onstant in demeanor,” and “[a]ble to rise and process issues and disagreement more effectively.”

¶20      Turning to the question of legal custody, the court held that the presumption that joint legal custody is in the child’s best interest was rebutted in this case by the parties’ inability “to set aside their personal differences and focus on the needs of” Child, and it awarded sole legal custody to Mother. The court based this decision on several things: the difficulties the parties had in setting aside their personal differences to attend to Child’s needs, although it noted that Mother was better able to do so; Father’s emotional abuse of Child “by subjecting her to repeated interviews and physical examinations when he repeatedly raises allegations of abuse against Mother without sufficient cause”; “Father’s need to control and dominate Mother” and to disrespect her; Father’s “inability to recognize the value of input from others, including Mother”; Father’s history of being unable to effectively communicate with Mother; Father’s aggressive and passive-aggressive behavior during pick-up and drop-off and his failure to make it a less emotionally draining experience for Child; Father’s lack of encouragement that Child “equally share time, love and affection with Mother”; and Mother’s constant meaningful participation in raising Child, while Father did not do so for the first few years of Child’s life due to “his anger issues” and university studies.

¶21 Regarding physical custody, the court determined that it was in Child’s best interest “that Father be actively involved in her life” and that he “should have frequent and consistent time with” her so long as there were orders in place enforcing respectful communication between Mother and Father and reducing their interactions during pick-up and drop-off. Accordingly, the court awarded the parties joint physical custody, with Mother as the primary physical custodian and with Father having “frequent and expanded rights of parent time.”

¶22 The court then considered child support, the main issue of which was the income to be imputed to Mother. The court noted that Mother had left full-time employment when Child was born and that she was not employed at the time of trial, but she was attending university classes. The court found that Mother had the experience and skills to find employment in the fields of marketing and public relations with a likely starting income of between $2,500 and $2,800 per month. But the court also found that as a result, Mother would necessarily incur childcare costs and either have to terminate or significantly modify her studies. Ultimately, the court determined that Mother was voluntarily underemployed. But because there was insufficient evidence presented regarding childcare costs or whether current employment was “available in either of her experience categories, or what the current rate of pay would be,”[6] the court imputed to Mother “the federal minimum wage of $1,257 per month.” And based on Father’s actual income and Mother’s imputed income, the court ordered Father to make $666 monthly child support payments to Mother.

¶23      Finally, the court awarded Mother $161,066.94 in attorney fees and costs pursuant to Utah Code section 30-3-3, holding that Mother had substantially prevailed and finding, among other things, that Father had a greater ability to pay.[7]

¶24      Father appeals.


¶25      Father raises five primary issues on appeal. First, Father argues that the trial court erred in awarding sole legal custody of Child to Mother.[8] Specifically, he contends that the “court’s analysis of Utah Code sections 30-3-10 and 30-3-10.2 does not comply with Utah law.” Generally, we review a trial court’s custody award for an abuse of discretion. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as long as the court exercises it within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Id. (quotation simplified). But whether the court correctly interpreted the legal standards set forth in sections 30-3-10 and 30-3-10.2 is a question of law that we review for correctness. See Ross v. Ross, 2019 UT App 104, ¶ 8, 447 P.3d 104. See also State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (stating that because “trial courts do not have discretion to misapply the law,” “the abuse-of-discretion standard of review will at times necessarily include review to ensure that no mistakes of law affected a lower court’s use of its discretion”) (quotation simplified).

¶26 Second, Father contends that the court abused its discretion when it found that he had emotionally abused Child. We review the trial court’s findings of fact for clear error. See T.W., 2021 UT App 132, ¶ 15. Under this standard, “the factual findings of the district court will not be disturbed unless they are clearly erroneous by being in conflict with the clear weight of the evidence. But the existence of conflicting evidence is not sufficient to set aside a district court’s finding.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 28 n.4, 505 P.3d 1136 (quotation simplified).

¶27      Third, Father argues that the trial court erred in allowing First Expert to testify at trial.[9] In reviewing the admissibility of evidence, we review the underlying legal questions for correctness and the “court’s decision to admit or exclude evidence and [its] determinations regarding the admissibility of expert testimony” for an abuse of discretion. Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 41, 513 P.3d 729 (quotation simplified). “However, error in the district court’s evidentiary rulings will result in reversal only if the error is harmful.” Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT App 134, ¶ 17, 351 P.3d 832.

¶28      Fourth, Father challenges the court’s imputation of federal minimum wage income to Mother for child support purposes. “We review the district court’s interpretation of statutory requirements for correctness” and “the court’s ultimate imputation of income . . . for abuse of discretion.” Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 23, 455 P.3d 1071 (quotation simplified).

¶29      Fifth, Father takes issue with the court’s award of attorney fees and costs to Mother under section 30-3-3 of the Utah Code. “We review a district court’s decision to award attorney fees pursuant to this statute for an abuse of discretion,” Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134, but review its underlying legal conclusions for correctness, see De La Rosa, 2019 UT App 110, ¶ 4.


I. Legal Custody Factors

¶30      Utah law establishes “a rebuttable presumption that joint legal custody . . . is in the best interest of the child.”[10] Utah Code Ann. § 30-3-10(3) (LexisNexis Supp. 2023). This presumption “may be rebutted by a showing by a preponderance of the evidence that [joint legal custody] is not in the best interest of the child.” Id. § 30-3-10(4)(b). The Utah Code also provides several factors to aid in the best interest analysis. See id. §§ 30-3-10(2), -10.2(2) (2019).

¶31      In challenging the trial court’s award of sole legal custody to Mother, Father argues that (A) the court wrongly interpreted Utah Code sections 30-3-10(2) and 30-3-10.2(2) to mean that its consideration of the factors listed in section 10(2) was discretionary; (B) the court’s application of the wrong legal standard resulted in its failure to consider certain relevant factors in its custody analysis; and (C) the court “analyzed certain factors only as they related to Father but not to Mother.”[11] We address each argument in turn.

A.        Statutory Interpretation

¶32 At issue is the interplay between Utah Code sections 30-3-10(2) and 30-3-10.2(2). Section 10(2) provides that “[i]n determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent[.]” Utah Code Ann. § 30-3-10(2) (LexisNexis 2019) (emphasis added). There then follows a list of factors, (a) through (r), several of which have subparts. See id. Taken in isolation, section 10(2) suggests that while the trial court must consider the child’s best interest when determining custody, the court has discretion as to which specific factors are appropriate for consideration in making that key determination.

¶33      But when joint legal or physical custody is at issue, section 10.2(2) also comes into play. That section provides that “[i]n determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10, and the following factors[.]” Id. § 30-3-10.2(2) (emphasis added). And here again, a number of factors are then listed, (a) through (i), several of which include subparts. See id.

¶34      The parties are at odds on whether, when joint custody is at issue, the court’s consideration of the section 10(2) factors is discretionary or mandatory. We agree with Father that, in undertaking any joint custody determination, courts are required to consider, in some fashion, all the section 10(2) factors and all the section 10.2(2) factors.

¶35 “Our primary goal when interpreting a statute is to ascertain the legislature’s intent,” the best evidence of which “is the plain language of the statute itself.” McKitrick v. Gibson, 2024 UT 1, ¶ 31, 541 P.3d 949 (quotation simplified). In this pursuit, “where the statute’s language marks its reach in clear and unambiguous terms, it is our role to enforce a legislative purpose that matches those terms, not to supplant it with a narrower or broader one.” Id. (quotation simplified). See Brindley v. Logan City, 2023 UT App 46, ¶ 22, 530 P.3d 557 (“When the meaning of a statute can be discerned from its language, no other interpretive tools are needed.”) (quotation simplified). Furthermore, to determine legislative intent “when two statutory provisions conflict in their operation, the provision more specific in application governs over the more general provision.” Taghipour v. Jerez, 2002 UT 74, ¶ 11, 52 P.3d 1252 (quotation simplified). With this charge, we look to the directives our Legislature mandated regarding determinations of joint custody.

¶36      Section 10(2) provides that when “determining any form of custody,” the court may consider, among other things, the factors listed in that section. Utah Code Ann. § 30-3-10(2) (emphasis added). Section 10.2(2), on the other hand, applies when the court is tasked with “determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both.” Id. § 30-3-10.2(2) (emphasis added). Thus, although both section 10(2) and section 10.2(2) purport to govern custody determinations, because section 10(2) applies more generally to “any form of custody,” id. § 30-3-10(2), and because section 10.2(2) “is tailored precisely” to address joint custody—the type of custody at issue here—section 10.2(2) is the more specific of the two provisions and thus governs, see Taghipour, 2002 UT 74, ¶ 14.

¶37 Therefore, based on the plain language of section 10.2(2) that “the court shall consider the custody factors in Section 30-3-10 and” additional factors listed in section 10.2(2), see Utah Code Ann. § 30-3-10.2(2) (emphasis added), our Legislature has deemed it necessary to impose additional requirements and heightened sensitivities regarding a court’s decision to order joint custody. In simple terms, this means that in cases where joint custody is under consideration, trial courts lose much of their discretion about which factors to consider. In other words, when considering the best interest of the child under section 10.2(2), the court is required to consider all the custody factors identified by both section 10(2) and section 10.2(2). Cf. Martinez v. Sanchez-Garcia, 2023 UT App 60, ¶ 21, 532 P.3d 105 (stating that under Utah Code section 30-3-10.4(2), which similarly states that when considering whether modifying a custody order is in the child’s best interest, the trial court shall consider the factors listed in section 10(2) and section 10.2(2), courts “are statutorily required to consider, at least in some form, twenty-five enumerated factors, as well as any other relevant factor”) (quotation simplified).

¶38 We note, however, that “not all [the section 10(2) and section 10.2(2)] factors are on equal footing, and a district court generally has discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. ¶ 22 (quotation simplified). “Some factors might not be relevant at all to the family’s situation, and others might be only tangentially relevant or will weigh equally in favor of both parents.” Id. For example, among the other custody factors, section 10(2) indicates that the court must consider “the relative benefit of keeping siblings together.” Utah Code Ann. § 30-3-10(2)(o). But in some cases, such as the one currently before us, the child does not have any siblings. In such circumstances, it is obviously unnecessary to analyze this factor because it is inapplicable to the court’s ultimate decision, although best practice suggests that the court should at least make a note of the factors it considers inapplicable in a given case. See Martinez, 2023 UT App 60, ¶ 22 n.6 (“Even with factors not relevant to the situation or factors that do not move the needle one way or the other, a court is well-served to at least mention those factors in its ruling and briefly indicate that it deems them irrelevant or of equal weight for each party. By mentioning them, even if only to say that they are irrelevant, a court ensures that the parties—and, significantly, a reviewing court—will be able to tell that the court at least considered them.”) (quotation simplified).

¶39 In sum, the trial court erred when it interpreted the relevant statutes to mean that its consideration of the section 10.2(2) factors was mandatory, while its consideration of the section 10(2) factors was discretionary. The court was required to consider, at least to some degree, all factors listed under both sections, and its failure to do so constituted an abuse of discretion. But “unless an appellant demonstrates that an error is prejudicial, it will be deemed harmless and no appellate relief is available.” See Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 (quotation simplified). We consider this question in conjunction with Father’s argument addressed in the next section of this opinion.

B.        Consideration of All Relevant Factors

¶40      Father argues that the trial court’s misinterpretation of the governing statutes resulted in its failure to consider a number of relevant factors. Specifically, he asserts that the court abused its discretion when it did not consider the parent’s “ability to provide personal care rather than surrogate care”; “the past conduct and demonstrated moral character of the parent”; and “previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community,” Utah Code Ann. § 30-3-10(2)(c)(iii), (d), (n) (LexisNexis Supp. 2023), even though he presented evidence at trial relevant to each of these factors.

¶41 As an initial matter, we commend the trial court for providing thirty-three pages of detailed findings in this matter, in which it addressed the majority of the section 10(2) and section 10.2(2) factors. But even given these extensive findings, the court expressly stated that it did not consider certain statutorily mandated factors in making its legal custody determination. Instead, it stated that it would consider the 10(2) factors “if it elects to do so.” Furthermore, because at least one of the three factors Father identifies, i.e., each parent’s “past conduct and demonstrated moral character,” id. § 30-3-10(2)(d), carries some weight in the legal custody determination,[12] we cannot say that the court’s failure to consider all the section 10(2) factors was harmless.

¶42 We therefore vacate the trial court’s legal custody determination and remand the case for consideration of all section 10(2) factors, and for such adjustment in the court’s legal custody determination, if any, as may then become appropriate. See Twitchell v. Twitchell, 2022 UT App 49, ¶ 25, 509 P.3d 806.

C.        Comparative Findings

¶43 A best-interest determination is “based on a number of factors that compare the parenting skills, character, and abilities of both parents in light of a realistic and objective appraisal of the needs of a child.” Woodward v. LaFranca, 2013 UT App 147, ¶ 22, 305 P.3d 181 (quotation simplified), cert. denied, 312 P.3d 619 (Utah 2013), abrogated on other grounds by Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422. See Twitchell, 2022 UT App 49, ¶ 23 n.4 (noting that a trial court’s findings should compare both parents’ “relative character, skills, and abilities” and not just that of one parent in particular). In other words, the court is required to undertake a comparative analysis whereby the court must consider the evidence relating to each parent.[13]

¶44 Father argues that the court’s comparative analysis and subsequent findings on a number of factors addressed only him and did not adequately compare the evidence as it related to Mother. Specifically, Father asserts that the court failed to make findings relating to Mother’s emotional stability, Child’s bond with her, her maturity and willingness to protect Child from parental conflict, and her ability to cooperate with Father. See Utah Code Ann. § 30-3-10(2)(e), (q) (LexisNexis Supp. 2023); id. § 30-3-10.2(2)(g), (h) (2019). Although Father acknowledges that the court made certain findings relating to these factors, he contends that the findings did not account for specific pieces of evidence he identifies on appeal.[14] But the trial court is not required to recite all evidence presented at trial in its findings of fact; just the evidence that is key to its custody decision. See Twitchell, 2022 UT App 49, ¶ 21 (highlighting that “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling” and instead must present sufficiently detailed findings and “include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached”) (quotation simplified).

¶45      We address each of the factors Father challenges on appeal and ultimately reject his suggestion that a court’s comparative analysis must proceed in a point-by-point, side-by-side comparison of each piece of evidence presented at trial in the context of each custody factor. Overall, the court’s comparative analysis in this case was sufficient.

¶46 Emotional Stability. Father contends that the court included specific findings regarding his emotional stability but did not include similar findings related to Mother despite evidence he presented at trial reflecting negatively on her in that respect. But Father misinterprets the trial court’s charge. The court is required to make only sufficient findings to support its decision. And the trial court is in the best position to weigh the evidence.

¶47      The court found that each parent had shown “the capacity and willingness to function as a parent” but that they both demonstrated an “inability to co-parent and properly interact with the other parent” and that they had “shown [a] limited ability to communicate effectively about [Child] over the years.” The court also found Third Expert to be credible and made findings consistent with his opinion that Father had improved his character traits since the parties’ separation. But despite Father’s improvement, the court also found that Father “says things to [Child] which weigh negatively on her emotions in a manipulative and passive aggressive manner.” Comparatively, the court found that “Mother occasionally expresses her displeasure of Father’s behavior openly in front of [Child] either by word or by her actions.” Based on its charge to make sufficient findings necessary to support its decision, the trial court’s findings are sufficiently comparative as concerns the parties’ emotional stability, particularly as concerns the issue of legal custody.

¶48 Child’s Bond with Parent. Father argues that the court specifically found that Child “has a strong bond with” and “enjoys spending time with” him but made no comparative findings regarding Mother’s bond with Child. He further asserts that the court did not consider evidence he presented that Mother and Child have a weak bond. But the court’s findings demonstrate that the court at least implicitly considered the strong bond between Child and Mother. The court found that “Mother has been the primary caregiver of [Child] from the time she was born, both during the marriage and after separation” and that although Father seemed uninterested in Child during the marriage, since the separation Father’s bond with Child had improved through his beginning to care for her during his parent-time. With the court’s recognition that Child’s bond with Father had improved and became “strong” as he began to show interest in and to care for Child, which Mother has done from the very beginning of Child’s life, the court sufficiently compared Child’s bonds with each parent.

¶49 Maturity and Willingness to Protect Child. Father next contends that the court made findings relating to his maturity and willingness to protect Child from parental conflict but did not make such findings relating to Mother. We disagree. The court specifically found that each parent showed an “inability to co-parent and properly interact with the other parent,” resulting in difficulty surrounding parenting decisions and custody handoffs. The court also found that Mother “occasionally expresses her displeasure of Father’s behavior openly in front of [Child] either by word or by her actions.” Similarly, the court found that Father displayed “inappropriate interactions with [Child] and Mother during pickup and drop off,” demonstrated an “insistence on addressing speculative and false allegations of abuse at the expense of [Child’s] emotional well-being,” did not encourage Child to look forward to being with Mother, and “is either unaware of the emotional upset his behavior causes [Child] or he is aware but prefers to upset her.” Thus, because the court addressed both parents’ interactions on custody handoffs and the like, the court’s findings are sufficiently comparative as to the parties’ maturity and willingness to protect Child from parental conflict.

¶50      Ability to Cooperate. Lastly, Father challenges the court’s findings regarding his inability to cooperate with Mother. He does not assert that the court did not make comparative findings regarding Mother’s ability to cooperate with him. Instead, Father’s argument is limited to asserting that the court’s findings on this point did not reflect evidence he presented at trial regarding his cooperation with Mother and her lack of cooperation with him. But, as discussed above, the trial court is not required or expected to make a finding on every bit of evidence presented. The litigation in this matter comprised numerous motion hearings and a ten-day trial with multiple witnesses, resulting in an appellate record in excess of 6,000 pages. The court made thirty-three pages of specific findings and those findings sufficiently show how the court arrived at its decision.

¶51 For these reasons, while the court did not undertake granular comparisons of each piece of evidence deemed problematic by Father, the court did adequately consider Child’s best interest by making appropriate comparisons. From the court’s extensive findings, it appears that the court made the difficult decision concerning the best interest of Child, who obviously has two very loving parents. See Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996) (“A trial court need not find one parent inadequate before awarding custody to the other.”).

¶52      In conclusion, because the court abused its discretion in not considering every factor it was statutorily required to, we remand this matter with instructions that the court reconsider its joint legal custody award in light of all the factors listed in section 10(2) and section 10.2(2), and in particular each parent’s “past conduct and demonstrated moral character,” Utah Code Ann. § 30-3-10(2)(d), as explained in Part I.B.

II. Emotional Abuse

¶53      Father argues that the court’s finding of his “substantial emotional abuse of [Child] through false allegations” was against the clear weight of the evidence. He primarily asserts that the court did not address the evidence of Child’s repeated injuries (cuts, bruises, and welts) that prompted him to alert authorities, and that “Mother presented little to no evidence that Child was [harmed], or even affected by the reports.”

¶54      As discussed above, under section 30-3-10.2(2) of the Utah Code, the court must address all the factors included in section 30-3-10(2) and make comparative findings for those factors. This includes consideration of “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent.” Utah Code Ann. § 30-3-10(2)(a) (LexisNexis Supp. 2023). Here, the trial court expressed concern about “Father’s use of emotional and sometimes indirect physical abuse of [Child] by claiming [Mother] has harmed [Child] without sufficient justification” that “exposed [Child] to unnecessary emotional trauma and invasive physical examinations.” The court then provided three pages of findings concerning this factor, including a list of some, but not all, of the reports of physical abuse Father made to the authorities about Mother and their outcomes.[15] But because neither party presented expert testimony at trial to establish or rebut whether Father’s many reports amounted to emotional abuse in a diagnostic sense, the court’s reference to emotional abuse is properly understood as usage in a more colloquial sense with a rather limited purpose.

¶55 The court limited its findings relating to emotional abuse to its legal custody award. Although emotional abuse resulting in harm to Child would absolutely play a significant role in a physical custody determination, the court made no mention of it when it awarded the parties joint physical custody of Child. Instead, the court concluded that it was in Child’s best interest that “Father be actively involved in her life” and “have frequent and consistent time with” her.

¶56 And in addressing legal custody, the court discussed its emotional abuse findings in the limited context of discussing the issue of Mother and Father being unable “to set aside their personal differences and focus on the needs of” Child, which formed the basis for the court’s determination that the presumption in favor of joint legal custody had been rebutted. The court awarded Mother sole legal custody because she was better able to set aside her differences, while “Father is not able to set aside his differences with Mother to give first priority to the welfare of [Child] and reach shared decisions in [Child’s] best interests.” Father’s “subjecting [Child] to repeated interviews and physical examinations when he repeatedly raises allegations of abuse against Mother without sufficient cause” was one such example of this.

¶57 Also notable is that the trial court applied the statutory presumption in favor of joint custody in its analysis (holding that it had been rebutted) when such a presumption does not apply in cases involving emotional abuse. See id. § 30-3-10(3)(a) (stating that the presumption in favor of joint legal custody does not apply in cases involving, among other things, “emotional abuse”). This further illustrates the very limited purpose for which the court applied its findings on “emotional abuse,” focusing on how it reflected that Father’s hostility toward Mother was paramount even if it entailed exposing Child to repeated interviews and physical exams—and not on any harm Child actually suffered as a result.

¶58 With this limited view in mind, we conclude that the court’s findings were sufficiently supported by the evidence. Even in light of all the evidence Father presented at trial supporting the various cuts, bumps, and bruises that prompted him to alert authorities, the court’s finding that his “reports of abuse were vexatious and were calculated and designed to harm Mother” is supported by the sheer number of reports Father made that never resulted in criminal charges being filed against Mother or in DCFS taking enforcement action against her. Several different agencies all investigated Mother and each investigation produced the same result. Although, as Father points out, they could not conclusively rule out the possibility that Mother abused Child, the many investigations did not produce sufficient evidence of abuse to cause intervention by the authorities. After multiple reports of such injuries to various authorities and medical professionals did not produce the desired intervention, it was not unreasonable for the court to find that Father’s primary motivation in continuing to file such reports was his desire to harm Mother.[16]

¶59 For these reasons, and given the limited role the court’s findings related to “emotional abuse” served in the legal custody analysis, we do not disturb those findings.

III. First Expert’s Testimony

¶60      Father argues that the trial court abused its discretion in not excluding First Expert’s testimony as unreliable under rule 702 of the Utah Rules of Evidence. In support of this argument, he points to the court’s ultimate agreement with Second Expert’s testimony that, among other things, First Expert’s “opinions based on testing should not be considered” and that First Expert “did not utilize many of the standard tests and methods for determining parenting capacity and therefore his opinions on parenting capacity are not helpful.” But even assuming, without deciding, that the court’s decision to allow First Expert to testify amounted to an abuse of discretion, such error was harmless here.

¶61      “Not every trial error requires reversal.” State v. Leech, 2020 UT App 116, ¶ 42, 473 P.3d 218 (quotation simplified), cert. denied, 481 P.3d 1039 (Utah 2021). “Unless an appellant demonstrates that an error is prejudicial, it will be deemed harmless and no appellate relief is available.” Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 (quotation simplified). “An error is harmless and does not require reversal if it is sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings.” State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (quotation simplified).

¶62 Here, after agreeing with several of Second Expert’s concerns and critiques of First Expert’s rule 35 evaluation of Father, the court stated that it ultimately “found little value in much of his diagnostic expert opinion” and that it agreed with only some of his “conclusions regarding characteristics and personality traits” of Father. But even here, the court stated that First Expert’s opinions with which it agreed “are consistent with other evidence presented to the Court regarding Father’s historical demonstration of” certain negative personality traits, specifically records submitted into evidence and other trial testimony. Thus, First Expert’s testimony did not serve as the sole basis for the court’s findings regarding some of Father’s characteristics and personality traits. Indeed, the court seemed to emphasize that its agreement with First Expert in that regard was based on the corroboration furnished by the court’s own review of some of the records First Expert examined and on other trial testimony.

¶63 For these reasons, Father has not demonstrated a reasonable likelihood that First Expert’s testimony affected the outcome of the trial, and this argument therefore fails.

IV. Mother’s Imputed Income

¶64 Father contends that the court abused its discretion by imputing Mother’s income at only the federal minimum wage, when a higher income was in order given the evidence before the court. Because the trial court misapplied the controlling legal standard, we agree.

¶65      “Because income imputation itself is primarily focused on a spouse’s ability to produce income, it is not unusual for courts to impute income to a spouse who has not worked during the marriage (or who has not worked for a number of years preceding the divorce) but who is nevertheless capable of producing income.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 26, 461 P.3d 1134 (quotation simplified). “The purpose of such imputation is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.” Connell v. Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified).

¶66 Section 78B-12-203 of the Utah Code establishes the guidelines by which income may be imputed. It provides that in contested cases, a trial court may not impute income to a party without first holding a hearing on the matter and entering “findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis 2022). The statute further provides that the court’s imputation of income “shall” be based on the following ten factors, “to the extent known”: “(i) employment opportunities; (ii) work history; (iii) occupation qualifications; (iv) educational attainment; (v) literacy; (vi) age; (vii) health; (viii) criminal record; (ix) other employment barriers and background factors; and (x) prevailing earnings and job availability for persons of similar backgrounds in the community.”[17] Id. § 78B-12-203(8)(b).

¶67 Here, the trial court deemed Mother voluntarily underemployed and found that she “has experience and skills in the workforce that would enable her to find employment in marketing and public relations work.” The court further found that “[i]f Mother were able to find employment as either a PR Specialist or in Advertising Sales her likely income would start around $2,500 to $2,800” per month. But the court opined that to become employed full-time, “Mother would necessarily incur childcare costs for a six (6) year old with transportation to and from school and would need to terminate or significantly modify her current study program” and that the evidence presented at trial “does not provide a calculation of the costs of day care expense necessary for Mother to become full time employed.” The court further stated that “the evidence provided is insufficient for the Court to determine that there is current employment available in either of her experience categories, or what the current rate of pay would be,” presumably given the impact of the COVID-19 pandemic. Based on those considerations, the court imputed to Mother “the federal minimum wage of $1,257 per month.”

¶68      The court’s reasons for reducing Mother’s imputed income from between $2,500 and $2,800 per month to the federal minimum wage go against the legal standard set forth in section 78B-12-203. As an initial matter, the reasoning that Mother would need to make adjustments to her schooling in order to pursue full-time employment has no legal basis. “[T]he pursuit of a higher education simply does not preclude employment.” Mancil v. Smith, 2000 UT App 378, ¶ 17, 18 P.3d 509. Although section 78B-12-203 provides that a trial court may not impute an income to a parent who “is engaged in career or occupational training to establish basic job skills” when such training “is not of a temporary nature,” Utah Code Ann. § 78B-12-203(8)(d)(iii), this is not the case here. Mother already had a bachelor’s degree and was pursuing a graduate program. Moreover, the court already found that she possessed skills and experience in the field of marketing and public relations. See Fish v. Fish, 2010 UT App 292, ¶ 18, 242 P.3d 787 (“The basic job skills training envisioned by the statute is training which can aid a person in achieving an income beyond the minimum wage job which can be had with no training at all, i.e., training for the starting point on a consecutive progressive career track.”) (quotation simplified). Thus, the court incorrectly based its reduction in Mother’s imputed income on her pursuit of higher education.

¶69 As for daycare expenses, at age six, Child would begin school soon, thus drastically reducing childcare costs as well. In any event, Utah law provides that “[t]he child support order shall require that each parent share equally the reasonable work-related child care expenses of the parents.” See Utah Code Ann. § 78B-12-214(1) (LexisNexis 2022). Accordingly, the child support order—and not Mother’s imputed income—was the appropriate means by which to address childcare costs.

¶70      Lastly, section 78B-12-203(8) mandates that the trial court base its imputation of income on “employment potential and probable earnings” by evaluating the ten enumerated factors, “to the extent known.” Id. § 78B-12-203(8)(b) (emphasis added). The statute thus expressly provides for possible uncertainty regarding the factors. Here, the vocational expert, whom the trial court found to be “qualified and credible,” provided a projection of future job openings in the field and stated that the unemployment rate in the area had doubled from the previous year due to the COVID-19 pandemic. Insofar as the court felt that additional information regarding current employment opportunities in the area was necessary, the uncertainty regarding this factor did not support a reduction of the already determined likely beginning wage of between $2,500 and $2,800 per month to the federal minimum wage. To be sure, the trial court has discretion when weighing the statutory factors, but because the statute expressly allows for uncertainty regarding the factors, that uncertainty cannot rationalize the court’s somewhat speculative decision.

¶71      For these reasons, the trial court abused its discretion by applying the wrong legal standard when imputing Mother’s income. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. We therefore reverse the trial court’s imputation of federal minimum wage income to Mother and remand for recalculation of her imputed income consistent with this opinion.

V. Attorney Fees and Costs

¶72      Finally, Father contends that in awarding attorney fees and costs to Mother, the trial court misapplied Utah law by incorrectly applying the “substantially prevailed” standard and by basing its decision, in part, on Father’s greater ability to pay. We agree.

¶73      A trial court may award attorney fees in a divorce action pursuant to section 30-3-3 of the Utah Code. “Both the decision to award attorney fees and the amount of such fees are within the district court’s sound discretion.” Lobenduhn v. Lobenduhn, 2023 UT App 137, ¶ 44, 540 P.3d 727 (quotation simplified). But the court must still “make detailed findings of fact supporting its determination.” Connell v. Connell, 2010 UT App 139, ¶ 27, 233 P.3d 836.

¶74      Section 30-3-3 “creates two classes of attorney fees—those incurred in establishing court orders and those incurred in enforcing court orders.” Id. ¶ 28 (emphasis in original). Subsection (1) provides,

In any action . . . to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action. The order may include provision for costs of the action.

Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2023) (emphasis added). “[T]he party to be awarded attorney fees under this [subsection] has the burden to prove (1) that the payee spouse has a financial need, (2) that the payor spouse has the ability to pay, and (3) that the fees requested are reasonable.” Lobendahn, 2023 UT App 137, ¶ 44.

¶75      Subsection (2) provides,

In any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may award costs and attorney fees upon determining that the party substantially prevailed upon the claim or defense. The court, in its discretion, may award no fees or limited fees against a party if the court finds the party is impecunious or enters in the record the reason for not awarding fees.

Utah Code Ann. § 30-3-3(2) (emphasis added). In contrast to subsection (1), when “awarding fees under subsection (2), the court may disregard the financial need of the moving party” using the “substantially prevailed” standard as “the guiding factor.” Connell, 2010 UT App 139, ¶ 28 (quotation simplified).

¶76 The differing standards of the two subsections are attributed to the different purposes each subsection serves. See id. ¶ 29. “Attorney fees are granted under subsection (1) to enable a party to prosecute or defend the action.” Id. (quotation simplified). Otherwise, “a spouse lacking a separate income would be unable to meaningfully participate in divorce proceedings.” Id. “Consequently, the moving spouse’s need is a sine qua non of a subsection (1) award.” Id. Conversely, “fee awards under subsection (2) serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Id. ¶ 30.

¶77      Here, in addressing the question of attorney fees and costs, the trial court prefaced its findings with the observation that the litigation in this matter “was contentious and relied on a significant amount of documents, which caused a significant amount of fees to be incurred by the parties.” The court first denied Father’s request for attorney fees “as a sanction for [Mother’s] unreasonableness in requiring these proceedings to go to trial,” ruling that “[a]ttorney’s fees as sanctions are not applied because a party has been unreasonable in requiring disputes to go to trial.” The court then turned to Mother’s competing request premised on her “having ‘substantially prevailed.’” The court stated that Mother “did substantially prevail, not only at trial, but at interim hearings on motions prior to trial.”

¶78 Following this preface, the court entered findings regarding the parties’ need and ability to pay. The court found that Mother “has limited income, if any, at this time,” and it noted Father’s annual salary. The court then proceeded to make findings on the parties’ expenses and disposable income, prefacing its findings by stating that it “has limited information regarding each party’s monthly expenses.” The court found that Father has “approximately $44,500 in disposable funds annually.” Turning to Mother next, the court first noted that neither party provided any evidence of her expenses, leaving the court “with no basis to find Mother has any expenses beyond those which are covered by her need for child support.”[18] The court thus found that Mother “has no income and no evidence of expenses.” The court also noted that “it received no evidence that Mother can pay for her costs and attorney fees.” Based on this, the court found that “[a]s between Father and Mother, Father has the greater ability to pay attorney’s fees” and held that “Mother should be awarded her reasonable costs and attorney fees.”

¶79      The court then addressed the reasonableness of Mother’s attorney fees. It again prefaced its findings by stating that “[a]lthough the issues of custody, parent time, and child support are routinely dealt with in our courts, this case is not a ‘usual’ case” because “[t]he parties have been unusually accusatory, intransigent, and uncooperative which has significantly raised the costs of this litigation to both parties.” The court noted that “Father’s decisions caused Mother to successfully bring multiple orders to show cause, motions to compel, and statements of discovery issues,” and have “forced Mother to incur otherwise unnecessary legal costs.” Against this backdrop, the court found that not all Mother’s requested costs and fees, totaling almost $410,000, were “reasonable and necessary,” and it ultimately awarded her $161,066.94 in attorney fees and costs. The court largely based this reduction on Mother’s “duplication of legal services, unnecessary review and consultation between multiple attorneys, and inefficiencies in presenting evidence at trial,” which the court deemed to be unreasonable.

¶80      There are two problems with the trial court’s award. First, the court conflated the two distinct bases for awarding fees under section 30-3-3, resulting in an undifferentiated attorney fees award. See Connell, 2010 UT App 139, ¶ 31. The court began its analysis by stating that Mother “substantially prevail[ed], not only at trial, but at interim hearings on motions prior to trial.”[19] This statement in and of itself is concerning as the purpose of the ten-day bench trial was largely “to establish an order of custody, parent-time, [and] child support,” thereby implicating subsection (1). See Utah Code Ann. § 30-3-3(1). But subsection (1) does not apply a “substantially prevailed” standard. See Lobendahn, 2023 UT App 137, ¶ 44; Connell, 2010 UT App 139, ¶ 29.

¶81      Although some pre-trial motions dealt with enforcing the court’s temporary orders regarding “custody, parent-time, child support, alimony, or division of property,” thereby falling under the ambit of subsection (2), see Utah Code Ann. § 30-3-3(2), the court did not distinguish between the two distinct statutory bases for awarding attorney fees. Rather, the court took the total amount of attorney fees Mother sought and reduced the amount to the sum it considered reasonable based on multiple inefficiencies on Mother’s part.

¶82 The second problem is that in awarding attorney fees under subsection (1), the court did not expressly find that Father “has the ability to pay” the requested attorney fees. Lobendahn, 2023 UT App 137, ¶ 44. Instead, the court found that between the two, “Father has the greater ability to pay attorney’s fees.” Whether Father is in a better position than Mother to pay attorney fees and whether Father has an actual ability to pay both his and Mother’s attorney fees are two different inquiries. Although the answer to both questions may, on remand, end up being the same, the court nonetheless did not make the required finding when awarding Mother attorney fees. See Connell, 2010 UT App 139, ¶ 27 (stating that as part of its attorney fees award, the court “must make detailed findings of fact supporting its determination”).

¶83      In sum, we reverse the trial court’s award of attorney fees and costs and remand with instructions that the court distinguish the fees that fall under subsection (1) and subsection (2) of section 30-3-3, and that it apply the corresponding legal standard to each group of fees. In the course of this effort, the court also needs to make a specific finding regarding Father’s ability to pay Mother’s attorney fees as to any fees awarded under subsection (1).


¶84      There remain issues that require additional attention and must be revisited on remand. Although we affirm certain of the trial court’s findings of fact and evidentiary rulings relating to its award of sole legal custody of Child to Mother, we reverse and remand with instructions that the court reevaluate its legal custody award by considering all the statutorily mandated custody factors, in particular the one focused on past conduct and moral character. We likewise reverse and remand for further consideration of Mother’s imputed income and the award of attorney fees and costs in Mother’s favor.[20]

Utah Family Law, LC | | 801-466-9277

[1] “On appeal from a bench trial, we view the evidence in a light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard.” Chesley v. Chesley, 2017 UT App 127, ¶ 2 n.2, 402 P.3d 65 (quotation simplified).

[2] As relevant here, rule 35(a) of the Utah Rules of Civil Procedure states, When the mental or physical condition or attribute of a party or of a person in the custody or control of a party is in controversy, the court may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or control. The order may be made only on motion for good cause shown.

[3] Mother also underwent a rule 35 examination, but it does not appear that those results were admitted into evidence at trial.

[4] The trial court initially found First Expert “to be credible although not entirely unbiased.” But following Father’s post-trial motion, the court did not include that statement in the amended findings of fact and conclusions of law that it later issued.

[5] Specifically, the court rejected First Expert’s opinion that Father “is prone to bouts of depression”; that he “appears to have a disconnect between his emotions and his cognitive abilities, which impedes his ability to utilize constructive feedback and an inability to learn from his experience and mistakes”; and that “[i]t is likely that Father has not emotionally separated, or moved on from his relationship with Mother.”

[6] A vocational expert, whom the court found to be “qualified and credible,” opined at trial that Mother could earn “approximately $2,800 to $3,750 gross per month” as a public relations specialist. But the court stated that the expert’s calculations did not take the COVID-19 pandemic’s impact on the job market into consideration, and although the expert provided a projection of future job openings in the field, he did not identify any current job openings or pay rates.

[7] We recount the relevant details of the trial court’s attorney fees award in Part V.

[8] Father does not challenge the trial court’s physical custody award on appeal.

[9] Father also contends that the trial court erred in ordering him to sign medical releases for his mental health records without first undertaking the analysis set forth in Debry v. Goates, 2000 UT App 58, 999 P.2d 582, cert. denied, 9 P.3d 170 (Utah 2000). See id. ¶ 26. But because Father did not raise this issue below, and instead opposed the release of the records only on prejudice and scope-of-the-stipulation grounds, this argument is not preserved, and we do not address it further.

[10] The presumption in favor of joint legal custody does not apply in cases that include, among other things, “emotional abuse.” Utah Code Ann. § 30-3-10(3)(a) (LexisNexis Supp. 2023). Although the trial court in this case did make several findings regarding emotional abuse, the court nonetheless applied the presumption but found that it was rebutted by the parties’ inability “to set aside their personal differences and focus on the needs of” Child.

[11] Father also argues that the trial court made unsupported findings concerning Mother’s financial stability, Father’s involvement in Child’s life, and the parties’ communications. But because Father has not marshaled the evidence in support of these findings, he has not carried his burden of persuasion. See Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A party will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal the evidence sufficient to overcome the healthy dose of deference owed to factual findings.”) (quotation simplified).

[12] The other two factors, the “ability to provide personal care rather than surrogate care” and the “previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community,” Utah Code Ann. § 30-3-10(2)(c)(iii), (n) (LexisNexis Supp. 2023), are more germane to a physical custody rather than to a legal custody determination, and Father conceded as much during oral argument before this court.

[13] The case of Allen v. Allen, 2014 UT App 27, 319 P.3d 770, provides a good example of how appropriate comparison between the parents works in practice. After considering the applicable factors and concluding that “both parents appeared nearly equally capable of caring for” their child, the district court in that case determined that, with respect to two factors where the parents were not equally strong, “the stability offered by [the father] outweighed the apparent empathy of [the mother].” Id. ¶ 5 (quotation simplified). See id. ¶ 12 (holding that given the district court’s observation that the parties were “nearly equally capable of caring for” the child and its findings of fact supporting that determination, the court had adequately considered the “character and quality of [the child’s] bonds with both parents”). The deciding factors in the district court’s view were the father’s stability and the mother’s immaturity, “with a tendency to put her needs above those of others, including” the child. Id. ¶ 10. On appeal, this court concluded that the district court’s “discussion of the parties’ relative maturity, stability, and ability to care for [the child] constitutes adequate consideration of both parties’ ‘past conduct and demonstrated moral standards.’” Id. ¶ 11 (quoting Utah Code Ann. § 30-3-10(2)(d) (LexisNexis 2013)).

[14] On this point, Father contends that our decision in Twitchell v. Twitchell, 2022 UT App 49, 509 P.3d 806, requires a trial court to make a finding on all evidence presented by either party. Father misinterprets that decision. In Twitchell, we determined that “to ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (quotation simplified). The premise of Twitchell is not that a court must make a specific finding regarding each piece of evidence, but simply that a court must make findings on the “basic facts” that support its ultimate conclusion.

[15] The trial court acknowledged that its list was not a comprehensive one. Mother asserts that she presented evidence at trial that Father instigated a total of 28 investigations against her.

[16] In any event, although Father argues that the trial court’s findings are against the clear weight of the evidence given the evidence of Child’s various injuries presented at trial, he has not marshaled the evidence supporting the court’s findings. To successfully challenge a finding, it is not enough to focus only on “evidence that points to an alternate finding or a finding contrary to the trial court’s finding of fact.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890 (quotation simplified). Accordingly, Father has also not carried his burden of persuasion on appeal. See Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A party will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal the evidence sufficient to overcome the healthy dose of deference owed to factual findings.”) (quotation simplified).

[17] The statute further provides that in cases where “a parent has no recent work history,” a court may impute “an income at the federal minimum wage for a 40-hour work week,” and that “[t]o impute a greater or lesser income, the judge in a judicial proceeding . . . shall enter specific findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(c) (LexisNexis 2022). Although Mother was not working at the time of trial, this did not form the basis for the trial court’s decision to impute the federal minimum wage to her. Rather, it found that she had the potential of earning between $2,500 and $2,800 per month but reduced this amount based on other factors as explained in paragraph 67.

[18] Father argues that Mother bore the burden of establishing her expenses and that the court incorrectly faulted him for not providing evidence of her expenses. But the inability to establish Mother’s expenses only benefitted Father—admittedly to a very limited degree—as the court ultimately did not attribute any expenses to Mother apart from those that are covered by her need for child support in its calculation of disposable funds available to her.

[19] The court awarded some attorney fees to Mother for her success in pre-trial motions along the way. The court also reserved for later determination the issue of attorney fees on certain other pre-trial motions.

[20] Father recently asked that we take judicial notice of developments in legal proceedings involving other parties that he believes are germane to this case. Mother opposes Father’s motion. We are not persuaded that the matters we are asked to take notice of bear on the issues presented in this appeal and so deny the motion. If relevant to the issues the trial court will address on remand, Father may renew his request in that forum.

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2024 UT App 51 – Bailey v. Bailey – evidence, sanctions

2024 UT App 51 – Bailey v. Bailey


AMY L. BAILEY, Appellee, v. DANNY RAY BAILEY, Appellant.

Opinion No. 20220534-CA Filed April 11, 2024

Second District Court, Farmington Department

The Honorable Michael D. DiReda No. 094701582

Julie J. Nelson, Attorney for Appellant Brian E. Arnold, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which


HARRIS, Judge:

¶1        In 2019, nine years after her divorce, Amy L. Bailey (Amy) filed a petition to modify the child support provisions of the divorce decree, asserting that her ex-husband Danny Ray Bailey’s (Danny[1] income had significantly increased. The matter proceeded to trial, where the district court sanctioned Danny for noncompliance with pretrial disclosure obligations. Among other sanctions, the court prohibited Danny from presenting any evidence, and from refuting any evidence Amy presented, regarding his income. At the conclusion of this rather one-sided trial, the court made findings and conclusions regarding Danny’s income that Danny believes are inaccurate.

¶2        Danny now appeals those findings and conclusions, as well as the court’s underlying sanctions order. Danny asserts that the sanctions order was inappropriate and that he is entitled to a new trial at which he may present evidence regarding his income. We agree with Danny, and therefore vacate the court’s modification order and remand the case for a new trial.

The Petition to Modify

¶3        Amy and Danny divorced in 2010; at that time, the parties were able to reach a negotiated settlement which was later incorporated into a decree of divorce (the Decree). The parties have three children together, all of whom were minors at the time of their divorce; only one of the children was a minor at the time of trial. Under the terms of the Decree, Amy was awarded primary physical custody of the children, and Danny was awarded certain parent-time. Danny is self-employed, and his income for child support purposes was determined to be $8,837 per month. Amy’s earnings at that time were determined to be $4,071 per month. Using these income figures, Danny’s child support obligation was calculated to be $1,485 per month.

¶4        In 2019, nine years after entry of the Decree, Amy filed a petition to modify, seeking, among other things, a modification of Danny’s child support obligation. Discovery and disclosure deadlines were set, with fact discovery scheduled to close in November 2019 and expert discovery scheduled to close in March 2020. The expert discovery deadline passed, and neither party designated any expert witnesses. But in September 2020, Amy filed a statement of discovery issues, asserting that Danny had not disclosed certain financial documents, including his 2019 tax return, and asking that Danny be ordered to do so. Amy further requested that she be allowed “to designate an expert to opine on the limited issue of [Danny’s] expenses versus business expenses.” Danny objected to this request, arguing that expert discovery deadlines were “far past” and that Amy “should not be allowed to re-open expert discovery and further extend this matter.” After a hearing, the court ordered both parties to disclose their 2018 and 2019 tax returns and associated financial documents to the other, but the court agreed with Danny on the expert disclosure issue, denying Amy’s request and stating that it was “not inclined to extend discovery deadlines.”

¶5        Eventually, after some delays due to matters not relevant here, the court scheduled a one-day trial regarding the child-support-related issues to occur on November 10, 2021. In its pretrial order, the court ordered that, “at least 28 days before” trial, the parties were to “provide . . . pre-trial disclosures,” including “[t]he name . . . of each witness who will be called at trial,” “an updated financial declaration,” and “copies of their federal income tax returns for the two most recent tax years.”

¶6        On November 2, eight days before trial, Danny filed a motion to continue, asserting that he had “been unable to complete his 2020 tax return due to problems with his accounting software,” and requesting that the trial be continued so that the parties could “proceed with current and accurate income information.” Additionally, Danny brought to the court’s attention that, on October 20, just twenty-one days before trial— and notwithstanding the court’s previous reticence to extend discovery deadlines—Amy had, “for the first time,” identified two expert witnesses that she intended to call at trial. Danny asserted that these disclosures should have been made “within 14 days after the close of fact discovery,” which, in this case, was some two years earlier in November 2019. Danny asked the court to bar Amy from calling these witnesses at trial and, alternatively, stated that if the court was inclined to allow Amy to call these experts, he should be afforded “the appropriate disclosures and discovery opportunities set forth” in rule 26 of the Utah Rules of Civil Procedure. As an added precaution, Danny filed a notice indicating that—contingent on the court’s ruling as to their admissibility—he would like “to receive written reports” from Amy’s newly-disclosed expert witnesses.

¶7        On the same day Danny filed his request for a continuance, Amy filed an objection. While pressing the court to move forward with the trial as scheduled, Amy simultaneously defended the timing of her expert disclosures. On this point, Amy argued that she was attempting to follow the court’s pretrial order, which stated that the list of witnesses that would be called to testify only needed to be provided twenty-eight days before the trial. And, according to Amy, she was doing just that by identifying in her pretrial disclosures the two expert witnesses she intended to call at trial. She argued that these two witnesses were “absolutely necessary” because she intended to rely on “their expert opinion” to demonstrate Danny’s “true income and the expenses being reported on his personal and business income taxes.”

¶8        Three days later, the court held a hearing on Danny’s motion. At the conclusion of the hearing, the court granted Danny’s request for a continuance of the trial date and rescheduled the trial to occur on March 1, 2022. The court also indicated that it would allow Amy to call the expert witnesses and it further observed that the continuance would give Danny time to consider whether he wanted to call a rebuttal expert witness of his own. At the conclusion of the hearing, the court noted that the main reason for continuing the trial was so that Danny could complete his 2020 tax return and disclose it to Amy, and it asked the parties whether they wanted to “set a deadline on the tax return.” Danny’s attorney stated that he’d rather not set a specific deadline, and Amy’s attorney didn’t argue for one either, stating that he and Danny’s attorney had “worked well together on that kind of stuff” and that he didn’t think any specific deadline for disclosure of the tax return would be necessary. The court pushed back a bit, asking, “Not a deadline? You’re okay just leaving it out there?” Amy’s attorney responded by stating that he was “fine with that.” In accordance with the parties’ wishes, the court set no specific deadline for Danny’s production of his 2020 tax return. The court’s previous pretrial order remained in place, however; as noted, it specified that all pretrial disclosures—including recent tax returns—were due “at least 28 days before” trial, which given the scheduled trial date would be February 1, 2022.

¶9        Not long after the November hearing on the motion to continue, Danny’s attorney withdrew. Danny then elected to proceed to trial pro se.

¶10      On February 3, less than four weeks before the trial date, the court held a status conference. At the conference, Amy’s attorney indicated that he had recently received Danny’s newly-completed 2020 tax return—specifically stating that he “just got those the other day”—but that he was still waiting to receive certain bank statements from Danny. In response, Danny—now representing himself—raised certain issues with Amy’s disclosures, indicating that he had not received all of her bank account information. After hearing from both parties, the court ordered Danny to provide Amy with the requested bank statements and ordered Amy “to do the same.”

¶11      During the status conference, the court also discussed the expert witness issue, and it asked Danny if he “had a chance to speak with or read the report from” Amy’s experts. Danny indicated that he had not received any such report. Amy’s attorney stated that he believed the report had been provided either to Danny or his previous counsel, but he offered to “resend” the report to Danny just in case.

The Trial

¶12      On March 1, the trial proceeded as scheduled, with Danny representing himself and Amy represented by counsel. At the start of the proceeding, before any evidence had been presented, Danny brought to the court’s attention that, two weeks earlier, he had filed an objection to Amy’s experts, asking that they be excluded from testifying because he still had not received any reports from them. At this, the court turned to Amy’s attorney for an explanation. Amy’s attorney this time did not claim that any expert report had ever been disclosed to Danny; instead, Amy’s attorney explained that Amy had been unable to “supplement[]” her earlier disclosures with the new experts’ reports because Danny had failed to timely provide Amy with financial information—including, most significantly, the 2020 tax return— that the court “had ordered [Danny] numerous times” to disclose. Amy’s attorney proposed that if the court was disinclined to allow these witnesses to testify as experts, they could, instead, be allowed to testify as “factual witness[es]” just to “tell [the court] what a line means on a tax return.”

¶13 Concerned about possible disclosure failings on both sides, the court asked Amy’s attorney whether it was “still the case” that Danny had failed to deliver “the documents, the returns, the information that [the court] ordered be delivered.” To this, Amy’s attorney responded, “Not timely.” Seemingly dismayed at the lack of cooperation between the parties, the court reminded them that the reason it had continued the trial was so that the parties could “exchange documents,” yet they had apparently still failed to “timely” comply with its instructions. Addressing Danny, the court stated, “So if you’re going to come to me and ask . . . that I exclude a witness, you’ve got to come in with clean hands. If your hands are soiled because you yourself have not complied with the rule and you’ve not told me that, that’s a problem, because I’m not going to apply the rules unevenly.” The court—without Amy making any specific request for a negative-inference sanction[2]—then told Danny that his apparent untimely disclosure of the 2020 tax return was “a problem that leads [the court] to think that perhaps a negative inference should be drawn against you . . . because why wouldn’t you just turn over the information that is critical to the [c]ourt’s determination on income since this is an income case?”

¶14      Before ruling on the matter, the court wanted to know how much time had elapsed between the completion of Danny’s 2020 tax return and Danny’s disclosure of that return to Amy. Danny indicated that “[p]robably two months” had elapsed between completion and disclosure. The court then asked, “Why wouldn’t you have just disclosed [the return] immediately once you had them done? Why did you wait two months to disclose [it]?” Danny explained that he was looking for new counsel at that time and that his understanding was that his “obligation was to supply” those documents with his pretrial disclosures, twenty-eight days before trial, which he did. Danny also reminded the court—twice—that, at the conclusion of the November hearing, no specific deadline for disclosure of the tax return had been set. The court then, without prompting from Amy’s attorney, began to read from rule 26 of the Utah Rules of Civil Procedure, stating to Danny that, as soon as he learned that his disclosure was “incomplete,” he was required to “timely serve on the other parties the additional or correct information.”

¶15 After allowing both sides to argue the matter, the court determined that “at the end of the day,” Danny was the one who “didn’t disclose timely.” The court therefore told Danny that Amy “couldn’t have given you a full expert report, because you hadn’t given them the predicate information that was needed so the expert could do his or her job.”

¶16      After a recess to allow the parties one last opportunity to negotiate, the court considered what, if any, sanction should be imposed on Danny for his apparent untimely disclosure of his 2020 tax return. The court believed that it could impose any of the sanctions set forth in rule 37(b) of the Utah Rules of Civil Procedure. After argument, the court determined it would be “inequitable” to allow Danny “to go forward and argue” what he thought his income should be when he “deprived the other side of [the] complete and accurate financial information that their [experts] needed in order to present a complete picture” of Danny’s finances. It therefore ordered that, during the trial, Danny would be prohibited from refuting any evidence that Amy introduced about Danny’s income, and he would not be allowed “to introduce [his] own evidence in support of what [he] believe[d]” his income should be. Basically, the only thing that Danny would be able to do at trial would be to present or challenge evidence presented related to Amy’s income.

¶17      Concerning Amy’s experts, the court determined it would be appropriate to allow them to testify as fact witnesses. Amy ended up calling only one of the two expert witnesses she listed in her pretrial disclosures, a forensic accountant (Accountant). At the beginning of his testimony, Accountant was reminded that he was not permitted to give “expert opinion” because he would, as Amy’s counsel described it, be a “factual witness.”

¶18      During his direct examination, Accountant was presented with exhibits containing Danny’s tax returns—including his 2020 tax return—and other financial documents and was asked questions concerning those documents. For example, Accountant was asked about the purpose of lines “28 A and B” on one of the forms, and he responded, “Those are there to present to the IRS sources of income from businesses that the taxpayer owns.” At another point in the trial, Accountant was also asked whether the W-2 wage on another form was for Danny or if it was “a qualified deduction” from Danny’s company. Accountant responded it was “neither,” and that “the income from the business” would be different from the amount represented on the form “because [it] specifically calculates adjusted income for [that] specific tax deduction.” Direct examination of Accountant continued in this fashion, with him testifying about several line items contained in Danny’s tax returns and what information should or should not be contained therein.

¶19 Amy was the only other witness to testify at trial. After submission of the evidence, Amy’s attorney made a closing argument. The court then went back and forth with Amy’s attorney, discussing the various figures that had been presented and what implications they might have on the calculation of child support arrearages going back to the date Amy filed her petition. After completing the calculation, the court made an oral ruling that, for child support purposes, Danny’s monthly income was $42,555 (as opposed to $8,837 under the original Decree) and that Amy’s monthly income was $6,265 (as opposed to $4,071 under the original Decree). Based on those figures, the court then calculated Danny’s ongoing child support obligation, as well as arrearages owed dating back to the month after Amy filed her petition to modify. Specifically, the court determined that Danny owed Amy $108,027 in back child support. Because of the “sizable back child support due and owing,” the court declined Amy’s request for attorney fees. A few weeks later, the court entered a written order memorializing its oral ruling.


¶20 Danny now appeals the court’s modification order. In particular, Danny challenges the court’s findings and conclusions regarding his own monthly income, and he asserts that the court’s determinations in that regard are infirm because it improperly sanctioned him and did not allow him to present evidence supporting his position or refuting Amy’s position on that issue. Thus, Danny’s appeal centers on the court’s application of Utah rules regarding discovery, disclosure, and sanctions.

¶21      A district court’s interpretation of the Utah Rules of Civil Procedure is reviewed for correctness. Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶ 19, 493 P.3d 1131. For this reason, a court’s decision regarding the adequacy of a party’s disclosures is reviewed for correctness. See Butler v. Mediaport Ent. Inc., 2022 UT App 37, ¶ 17, 508 P.3d 619 (stating that “we review for correctness the district court’s conclusion that [a party’s] disclosures were inadequate, because that determination is at root a question of interpretation of” the applicable rules).

¶22      But when a district court’s interpretation of the applicable rules is correct, we extend “a great deal of deference” to the court’s decisions regarding its choice of sanctions, and we will only disturb such rulings “if abuse of discretion is clearly shown.” Raass Bros. Inc. v. Raass, 2019 UT App 183, ¶ 11, 454 P.3d 83 (quotation simplified). Similarly, we review deferentially a “district court’s decision to admit or exclude evidence,” including its “determination regarding the admissibility of expert testimony” for an abuse of discretion. Northgate Village Dev., LC v. City of Orem, 2019 UT 59, ¶ 14, 450 P.3d 1117 (quotation simplified). A court’s determination that a witness’s testimony is “not expert testimony” is similarly reviewed for an abuse of discretion. State v. Rothlisberger, 2006 UT 49, ¶ 8, 147 P.3d 1176.


¶23      Danny’s primary challenge on appeal concerns the district court’s imposition of sanctions, which he contends were unwarranted. For the reasons discussed herein, we find merit in Danny’s position, and agree that the court erred by imposing rule 37 sanctions on Danny.

¶24 There are two different rules of civil procedure that concern discovery sanctions: rule 26 and rule 37. These two rules, “although couched in different terms,” are both “aimed at encouraging good faith compliance with the discovery obligations imposed under the rules of civil procedure and both provide the court with the authority to sanction those who fail to live up to the requirements of those rules.” PC Crane Service, LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 34, 273 P.3d 396. But despite certain commonalities, the sanctions available pursuant to these rules are different and have distinct prerequisites.

¶25 The sanctions that a court may impose pursuant to rule 26(d) are narrow, but they are also “automatic and mandatory” when the prerequisites are met. See Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 48, 476 P.3d 542. That rule provides, in relevant part, as follows:

(4)   If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.

(5)   If a party learns that a disclosure or response is incomplete or incorrect in some important way, the party must timely serve on the other parties the additional or correct information if it has not been made known to the other parties. The supplemental disclosure or response must state why the additional or correct information was not previously provided.

Utah R. Civ. P. 26(d)(4), (5).[3] Thus, when a party fails to comply with rule-based disclosure requirements, that party is “presumptively barred” from relying on that witness, document, or material at trial. See Dierl v. Birkin, 2023 UT App 6, ¶ 31, 525 P.3d 127, cert. denied, 527 P.3d 1107 (Utah 2023). A party seeking sanctions under rule 26(d)—usually a party whose litigation opponent has failed to timely disclose a required item—does not need to file a motion for sanctions and obtain a court order beforehand; rather, sanctions under this rule are “automatic and mandatory” and do “not require a predicate discovery order.” Eskamani, 2020 UT App 137, ¶¶ 47–48. Courts should, upon request, presumptively impose sanctions for noncompliance unless “the party seeking relief from disclosure requirements” can demonstrate that its noncompliance was harmless or excused by good cause. Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 UT 20, ¶ 18 & n.7, 445 P.3d 434; see also Utah R. Civ. P. 26 advisory committee notes (stating that sanctions are “the usual and expected result” of noncompliance).

¶26        But the sanctions available under rule 26(d) are narrow and specific: a party who fails to comply with rule-based disclosure obligations, and who cannot show harmlessness or good cause, “may not use the undisclosed witness, document, or material at any hearing or trial.” See Utah R. Civ. P. 26(d)(4). Rule 26, by itself, does not speak of or authorize any other sanction.

¶27        Rule 37, by contrast, is not self-executing: a party wishing to take advantage of its more expansive sanctions menu must first obtain a discovery order from the court. Subsection (a) of that rule allows a party to “request that the judge enter an order regarding any discovery issue.” Id. R. 37(a)(1). And subsection (b) allows a “court, upon motion, [to] impose appropriate sanctions for the failure to follow its orders.” Id. R. 37(b) (emphasis added). Interpreting the language of this rule, we have recently held that imposition of sanctions under rule 37 is available only for violation of a specific court order. See Eskamani, 2020 UT App 137, ¶ 49 (“Unlike rule 26, rule 37 conditions the availability of discovery sanctions upon the failure of a party to follow a discovery order.”).

¶28      But rule 37 offers a wide variety of sanctions options, and it allows for sanctions that can be more severe than the sanction authorized under rule 26. Where the violation in question is disobedience of a court order (as opposed to noncompliance with a rule-based disclosure requirement), rule 37 authorizes a court to (among other things) “deem [a] matter . . . to be established,” give an “adverse inference” instruction, order attorney fees, hold a party in contempt, or even dismiss a party’s claim or defense. See Utah R. Civ. P. 37(b)(1), (4)–(7). As relevant here, a court may also opt to “prohibit the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters into evidence.” Id. R. 37(b)(2).

¶29      In imposing sanctions on Danny, the district court applied rule 37. It read subsection (b) of that rule to Danny, and then walked the parties through the sanctions options provided by rule 37(b). After discussion, and after a brief break to allow additional negotiations, the court told Danny that he would not be “permitted to refute” any evidence Amy presented regarding his income, and that he would not “be permitted to introduce [his] own evidence in support of what [he] believe[s his own] income should be.” This is one of the sanctions listed in rule 37(b). See id.

¶30      But under these circumstances, this sanction was improper. Rule 37 is properly invoked only for violation of a court order, see id. R. 37(b); Eskamani, 2020 UT App 137, ¶ 49, and Danny was not in violation of any court order. The only potentially applicable order is the pretrial order that commanded the parties to disclose their trial exhibits—including, significantly, their latest tax returns and other updated financial information—at least twenty-eight days prior to trial.[4] Danny complied with this order when he submitted his 2020 tax return on or before February 1, 2022—which was at least twenty-eight days prior to the scheduled March 1 trial date.[5] And on appeal, at least, Amy makes no argument to the contrary.[6] In the absence of any evidence that Danny was in violation of a court order, the court was not permitted to impose sanctions on Danny pursuant to rule 37.

¶31        Danny’s sin, as perceived by the district court, was not the violation of any specific court order. Instead, the court was apparently upset with Danny for waiting some two months after the belated completion of his 2020 tax return to provide a copy of that return to Amy. This action was arguably a violation of rule 26(d)(5), which commands parties to “timely” supplement their initial disclosures. See Utah R. Civ. P. 26(d)(5).[7] Courts certainly have authority to punish untimely supplementations. But such punishment must be imposed pursuant to rule 26(d) and not—in the absence of a violation of a court order—pursuant to rule 37(b).

¶32        Under rule 26(d), the court could have penalized Danny for his two-month disclosure delay, but any such penalty should have been limited to preventing Danny from “us[ing]” the 2020 tax return “at any hearing or trial.” See id. R. 26(d)(4). Even if we were to assume, for purposes of the discussion, that under rule 26(d) the court properly barred Danny from introducing that document on his own account, we are aware of no rule or authority that would allow the court to bar him from introducing other properly disclosed evidence about his income, or from attempting to rebut evidence about his income that Amy introduced at trial. In this vein, we note that, during her evidentiary presentation at trial, Amy introduced Danny’s 2020 tax return into evidence; Danny should not have been barred from engaging with that evidence once Amy voluntarily elected to introduce it. Thus, under the circumstances, the district court’s sanctions order was improper and unduly punitive.

¶33      And in this situation, the court’s improper sanctions order prejudiced Danny. Prejudice is demonstrated when a party shows that the court’s error “impacted the outcome of the dispute.” In re Western Ins. Co., 2022 UT 38, ¶ 55, 521 P.3d 851. In other words, a party is prejudiced if “there is a reasonable likelihood that, absent the error, the result would have been different.” Id. (quotation simplified). Danny asserts that his income is actually less than half of what the court found it to be after the one-sided evidentiary presentation, and he argues that, had he been able to present evidence as to his income, the court would not have made the same determination in that regard. Danny asserts that, if he had not been sanctioned, he would have presented (among other things) his earlier tax returns and evidence regarding his “necessary business expenses,” and would have been able to demonstrate that certain income had been improperly attributed to him. Danny plausibly contends that this would have likely made a difference, and here on appeal, Amy makes no argument to the contrary. And it appears that the district court more or less agreed with this notion, at one point stating that the sanctions imposed were “almost the equivalent of a default.”

¶34 In sum, then, the court entered an improper and unduly punitive sanctions order against Danny. That order prejudiced Danny because it prevented him from meaningfully engaging with the court and with Amy on the subject of his own income; absent the sanctions order, we think the court likely would have reached a different conclusion regarding Danny’s income. Accordingly, we vacate not only the court’s sanctions order but also its modification order (the order containing its findings regarding Danny’s income), and we remand this case to the district court for a new trial on Amy’s petition to modify.

¶35 Our opinion could end here. But we elect to address one of Danny’s other criticisms of the court’s handling of Amy’s petition to modify, in the hope that our guidance on this issue might prove useful on remand. See State v. Ogden, 2018 UT 8, ¶ 49, 416 P.3d 1132 (“Although it is unnecessary to our decision, we retain the authority to reach issues when we believe our analysis could prove helpful on remand.”); see also Young H2ORE LLC v. J&M Transmission LLC, 2024 UT App 10, ¶ 48, 543 P.3d 1264 (electing to “offer some guidance that we hope will prove useful” on remand where the issues in question “are certain to arise again”).

¶36 Danny asserts that the court acted improperly when it allowed Accountant to testify at trial as a “factual witness.”[8] We agree with Danny that Accountant’s testimony was improper.

¶37 After Amy made a late designation of expert witnesses (which the court eventually authorized Amy to do), Danny asked for a report from those witnesses, including Accountant, in lieu of taking their depositions. But despite certain initial incorrect representations from Amy’s attorney to the contrary, Amy never provided Danny with any report from Accountant.

¶38      Expert witnesses from whom reports have been requested should not be allowed—absent a showing of good cause or harmlessness—to testify about matters not “fairly disclosed in” the requested reports. See Utah R. Civ. P. 26(a)(4)(B) (stating that expert witnesses “may not testify in a party’s case-in-chief concerning any matter not fairly disclosed in the report”); id. R. 26(d)(4); see also R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, ¶ 11, 327 P.3d 1233 (stating that, “where it is undisputed that an expert witness report has been untimely filed, the proper inquiry is whether” the party’s failure to timely submit the report was “harmless” or excused by “good cause” (quotation simplified)), cert. denied, 337 P.3d 295 (Utah 2014). It follows, then, that an expert from whom a report has been requested but who has not provided one should not be allowed to testify at all, absent a finding of good cause or harmlessness, since nothing was “fairly disclosed” in any report. See Utah R. Civ. P. 26(a)(4)(B).

¶39        In this case, the district court allowed Accountant to testify, despite the fact that Accountant never provided an expert report to Danny. The court allowed this, at Amy’s request, on the ground that Accountant would not be asked to offer any expert opinion as to Danny’s income but, instead, would merely be “a factual witness” who would offer testimony about “what a line means on a tax return.” But the court never engaged in any analysis of whether Amy’s failure to provide an expert report from Accountant should be excused for “good cause.” See id. R. 26(d)(4). While Danny’s two-month delay in supplementing his initial disclosures with his 2020 tax return may have provided some cause for Accountant’s inability to timely form opinions regarding Danny’s post-2019 income, neither Amy nor the court ever offered an explanation as to why Danny’s delay in disclosing his 2020 tax return provided any cause for Accountant’s failure to provide a report containing opinions about what line items on a tax return mean.

¶40      And we are not persuaded by Amy’s effort to characterize this kind of testimony as “fact testimony.” As an initial matter, even fact witnesses have to be disclosed in a timely manner, and— although Amy did obtain permission to make a late expert designation of Accountant—Amy did not disclose Accountant as a fact witness in a timely manner. Any such disclosure should have been made in Amy’s initial disclosures, in order to give Danny the opportunity to depose (or seek other discovery from) the witness. It is not proper, absent specific leave of court, for a party to disclose a fact witness for the first time in connection with its final pretrial disclosures. After all, witnesses and exhibits disclosed in final pretrial disclosures are intended to be merely a subset of the witnesses and exhibits already disclosed earlier in the case. See Ader v. SimonMed Imaging Inc., No. CV-17­02085, 2020 WL 13442907, at *2 (D. Ariz. Sept. 22, 2020) (stating that, “[t]ogether, initial and supplemental disclosures reveal the full universe of potentially relevant evidence for every claim or defense,” and that in preparation for making final pretrial disclosures, the parties must then “sift through” that earlier-disclosed evidence to arrive at a “narrowed universe” of evidence “aimed at trial preparation”). Allowing a party to use its pretrial disclosures to introduce new evidence and new witnesses would therefore be contrary to the very purposes of rule 26. See Johansen v. Johansen, 2021 UT App 130, ¶ 18, 504 P.3d 152 (stating that where a party’s pretrial disclosures, submitted only “28 days before trial,” identified for the first time the witnesses that the party intended to rely on at trial, that disclosure was contrary to “the purpose of rule 26, which is to preclude parties from trying to gain an advantage by offering ‘surprise’ testimony at trial that has not been properly disclosed” (quotation simplified)); see also In re Morrissey, No. AP 20-2045, 2022 WL 666803, at *5 (Bankr. D. Utah Mar. 4, 2022) (noting that if a party “were permitted to treat the [pretrial disclosure] deadline as though it were the [initial disclosure] deadline, it would completely undermine the purposes of” the rule governing initial disclosures).

¶41 But more to the point, the testimony that Accountant ended up giving at trial was not fact testimony; it was expert testimony. A “fact witness” is someone “who has firsthand knowledge of something based on the witness’s perceptions through one [or] more of the five senses.” Fact Witness, Black’s Law Dictionary (11th ed. 2019). “Lay fact testimony”—which is the type of testimony that the district court and Amy assert that Accountant provided—is “factual testimony not based on scientific, technical, or other specialized knowledge.” State v. Rothlisberger, 2006 UT 49, ¶ 11, 147 P.3d 1176; see also Warenski v. Advanced RV Supply, 2011 UT App 197, ¶ 8, 257 P.3d 1096 (stating that testimony that is “clearly based on scientific, technical, or other specialized knowledge” should be considered as “expert testimony rather than fact testimony” (quotation simplified)), cert denied, 268 P.3d 192 (Utah 2011). A fact witness is thus only allowed to “testify in the form of fact or opinion” if the testimony “is helpful to the finder of fact” and is within the witness’s “personal knowledge or perception.” State v. Sellers, 2011 UT App 38, ¶ 26, 248 P.3d 70; see also Utah R. Evid. 701.

¶42        Here, Accountant had no firsthand knowledge concerning the family in general or about Danny’s income in particular, yet he was presented with various financial exhibits, including Danny’s tax returns, and was allowed to offer testimony about them. Amy’s attorney then questioned Accountant about certain line items in those documents. At one point, for instance, Accountant explained how a wage on a W-2 form was neither for Danny nor was it “a qualified deduction” from Danny’s company, because “the income from [Danny’s] business” would be different from the amount represented in the form which “specifically calculates adjusted income for [that] specific tax deduction.” We have no difficulty concluding that this sort of testimony was expert testimony, not fact testimony, because it was based not on Accountant’s own personal observations but, instead, on his “technical” and “specialized knowledge.” See Utah R. Evid. 701.

¶43      Accountant should not have been allowed to provide this sort of testimony under these circumstances. Despite the court’s stated intention not to “apply the [discovery] rules unevenly,” in our view that is exactly what happened here. The court imposed an inappropriately severe sanction on Danny, while at the same time allowing Amy to offer undisclosed expert testimony. We trust that, on remand, these errors will be corrected.


¶44      Because Danny did not violate any discovery or disclosure order, the court’s effort to sanction him pursuant to rule 37 was improper. In addition, the court erred by allowing Accountant to offer expert testimony without having provided a requested expert report. We therefore reverse the imposition of sanctions on Danny, vacate the court’s order modifying the Decree, and remand the matter to the district court for a new trial.

Utah Family Law, LC | | 801-466-9277

[1] Because the parties share the same last name, we refer to them by their first names for ease of reference, with no disrespect intended by the apparent informality.

[2] Prior to the trial, Amy had filed a document stating a general objection to Danny’s pretrial disclosures, asserting that some of Danny’s exhibits had not been disclosed “in a timely manner” and asking the court to enter an order barring Danny from using such exhibits at trial. Neither in that document nor at trial did Amy ask for a negative-inference sanction (at least not until after the court brought it up on its own).

[3] An earlier version of rule 37 contained a provision similar to rule 26(d)(4). See Utah R. Civ. P. 37(h) (2013). That provision was deleted in 2015, apparently because the drafters considered it redundant. See id. R. 37 advisory committee notes to 2015 amendment (“Former paragraph (h), which prohibited a party from using at a hearing information not disclosed as required, was deleted because the effect of non-disclosure is adequately governed by Rule 26(d).”). In the rules’ current iteration, this language appears only in rule 26(d)(4).

[4] Recall that the court itself—at the hearing at which it ordered a continuance of the November trial date—had been inclined to order a specific deadline for Danny’s disclosure of the belatedly prepared 2020 tax return, but ended up not doing so after both attorneys asked the court not to impose any deadline.

[5] This pretrial order was also in place in advance of the scheduled November 2021 trial date, and Danny was—at least temporarily— out of compliance with that order when he failed to hand over his 2020 tax return within twenty-eight days of the November trial date. He explained, however, that he was unable to generate the tax return because of software issues, and on that basis the court continued the November trial date, rescheduling the trial for March 2022. This continuance had the effect of curing Danny’s temporary noncompliance with the court’s pretrial order; as noted, Danny fully complied with it as it relates to the March 2022 rescheduled trial date.

[6] At trial, Amy’s attorney represented to the court that Danny’s disclosure of the 2020 tax return had been “[n]ot timely.” As discussed below, we generously interpret this as an allusion to Danny’s obligation to timely supplement his rule 26 disclosures. See Utah R. Civ. P. 26(d)(5). To the extent that this comment represented an assertion that Danny’s disclosure violated a court order, that assertion was inaccurate. Indeed, on appeal, Amy concedes that Danny produced his 2020 tax return to her “twenty-nine (29) days before trial.”

[7] 7. Conduct similar to Danny’s might, under some circumstances, also be a violation of rule 26.1(f), which provides that a party’s “[f]ailure to disclose all assets and income in the Financial Declaration and attachments” in a domestic relations action “may subject the non-disclosing party to sanctions under Rule 37.” See Utah R. Civ. P. 26.1(f). Indeed, Amy invites us to affirm the court’s sanctions order on this basis. We decline this invitation because, in our view, this alternative ground for affirmance is not apparent on the record. See Pentalon Constr., Inc. v. Rymark Props., LLC, 2015 UT App 29, ¶ 25, 344 P.3d 180 (“We will not affirm a judgment if the alternate ground or theory is not apparent on the record.” (quotation simplified)). As an initial matter, this argument is unpreserved; at trial, there was no discussion of rule 26.1 from any party or from the court, and there is no indication in the record that the court intended to base its sanction on rule 26.1(f). Moreover, it is far from apparent to us that the language of rule 26.1(f) authorizes rule 37 sanctions in the absence of a court order; certainly, Amy has not persuaded us that this is the case, especially given the plain language of rule 37(b) and our case law. See, e.g.Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 49, 476 P.3d 542.

[8] Danny also complains that Amy never submitted initial disclosures, and that—despite a court order—she did not produce any documentation about a second source of income (rental properties). As near as we can tell from the record, Danny’s complaints are accurate. We see no need for further discussion of them here, however; Danny remains free to seek relief from the district court regarding these issues on remand.

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Why Your Witness May Not Be As Good As You Think By Braxton Mounteer

I recently went to trial with my boss for a divorce case. One of the things that stuck out to me was that quite often the witnesses people call in support of their claims and defenses aren’t nearly as helpful as they were expected to be. Why?

1)      Proximity of the witness to the parties or to the facts. I don’t mean physical proximity, but I do mean their personal relationships to the parties or to the events witnessed. These witnesses could be a mother, father, brother, sister, best friend, etc. Courts expect these kinds of people to be loyal, even to the point of a) being hopelessly biased and/or b) lying to help their friends/family members. Your mom’s not expected to be the most neutral or objective witness. Your brother droning on about how your spouse is the devil and you are a saint isn’t all that credible. I’m not saying such witnesses are worthless (you don’t want your mom or brother testifying against you, for example), but they aren’t the most helpful of witnesses.

2)      Your witness’s testimony isn’t engaging enough. A witness who testifies that he/she has never seen you treat your kids poorly is a witness who isn’t saying you treat your kids well. Yawn. A compelling witness is someone who witnessed you selflessly coaching the kids’ soccer team for years and who made a great impact for good in the team members’ lives. You want a teacher who can testify that you came to every parent-teacher conference and read with your child 20 minutes every night. You need that police officer who witnessed and arrested your spouse for trying to beat you with a bat. You need the boss who testifies what you are paid.

3)      Your witness didn’t witness anything first-hand. Your witness can’t get on the stand and tell the judge what he heard someone else say. That’s called hearsay, and with few exceptions, it’s not admissible as evidence.

What if you don’t have any witnesses beyond your immediate circle of friends and family? You can still call them as witnesses, and if they are credible people who don’t know a whole lot, you likely should call them as witnesses. No witnesses in your corner looks worse than mediocre witnesses who can testify believably of a few things.

Utah Family Law, LC | | 801-466-9277

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You Reap What You Sow.

I’m Braxton Mounteer, a legal assistant. I’ve written and talked about this problem before, but it’s a recurring problem and a serious one. It’s hard enough to muster the courage to hire a divorce lawyer and pay so much money to your lawyer to represent you in your divorce in the hope that your lawyer can protect you, guide you through the divorce process, help you make sense of what’s going on, and bring you to the end of the divorce process with an equitable outcome. So why do so many clients make it so difficult for their lawyers to help them? Why do so many clients procrastinate? Why do they ignore or put off until the last minute their attorneys’ requests for vital documents. Why do they evade or give incomplete or outright false answers to important questions? Why do so many clients act as though their wish is the lawyer’s command? Look, we know this is a hard process for you. We know it’s hard to manage all of life’s challenges without a divorce being added to the mix. We know you don’t like having to go through your financial records and share them with strangers. We know you don’t want to go over your criminal history, your infidelity, your substance abuse, and other examples of your bad judgment you’ve been trying to leave in the past and move on from and even forget. We know you don’t like what feels like intrusions into your privacy, your mental and physical health history, relationships between you and your spouse, between you and your children, between you and other members of your extended family and circle of friends. We know that you hate already being in dire financial straits before you had to start budgeting to pay for a divorce lawyer. We know you don’t like feeling ignorant of the legal system and all the terms getting thrown around as the lawyers and the courts discuss your fate. We know how tempting it is to believe if you simply bury your head in the sand all of this will go away. But it won’t. It’s tempting to fool yourself into believing that once you hire a divorce lawyer it’s all in your lawyer’s hands. But it’s not. If you have a house, some retirement savings, minor children, if you are facing the prospect of paying or receiving alimony, if there’s substantial marital debt, then you will almost surely benefit in the long run from investing in the services of a skilled divorce lawyer. The most effective lawyers work with a client, not merely for a client. Lawyers are called counselors for a reason; They confer with you, they advise you, but the choices are yours to make. Wouldn’t you rather have as many options and choices open to you? Wouldn’t you rather act instead of being acted upon? In a very real sense, how much your lawyer can help you depends upon how much you help your lawyer. You reap what you sow.

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Rejecting Fact for Faith: the Inexplicable and Inexcusable Silencing of the PGAL’s Child Client

When a PGAL (private guardian ad litem) is appointed to represent children in a child custody dispute in a Utah divorce case, it would sure be good to know what the PGAL and the children actually said to each other (not merely believe, not trust any second-hand source’s claims as to what the children purportedly said, but know what the children said) by having a by having an audio and/or sound-and-video recording of the what the PGAL and the children actually said to each other. I am not aware of any evidence that proves or so much as suggests that having such a record is (is, not may be, but is) prejudicial or harmful to anyone.

The reasons why should be obvious.

I don’t have to believe you if you tell me that your fingerprints are not on the murder weapon. In contrast, I cannot deny your fingerprints aren’t on the murder weapon, when you show me the murder weapon has none of your fingerprints on it.

If you had an eye witness who could provide you with an alibi, you would need the witness himself to testify. You couldn’t say to the judge or jury, “Trust me, I have an eye witness, and if he were here, he’d tell you that Mickey shot Jerry, not me.” The only way to know if such a witness really exists and is not just a convenient figment of your imagination is to hear from the witness himself. Indeed, if you tried to speak for a phantom witness, that would be inadmissible hearsay. Objective fact is self-evidently more probative than unverified stories and claims. This is why we don’t rely on hearsay when we can hear first-hand from the witness.

You wouldn’t want people trying to put words in your mouth and misrepresenting what you do and do not say. It’s why the rule against hearsay exists, and for good reason. It’s why the public rose up and demanded bodycams for police (because the police were caught lying so much and chronically violating innocent people’s rights in the process). It’s why we need verifiable proof that medicine actually works and aircraft can safely takeoff, fly, and land before we use them.

Yet PGALs in Utah all but universally refuse to interview children on the record and oppose children being questioned by anyone else on the record. Instead, PGALs expect that everyone believe 1) what the PGAL claims to have asked the children in the PGAL’s interviews with them and 2) what the PGAL claims the children said in response 3) and to believe the PGALs without the children being subject to cross-examination. “Believe the PGAL on what basis?,” you may ask. Merely being appointed as a PGAL. That’s like expecting one to believe a witness in court merely because the witness swore an oath to tell the truth (which would be as unreasonable as it is irresponsible). Being a PGAL doesn’t render one incapable of lying or incapable of misperceiving or misremembering details. Being a PGAL free the PGAL from personal biases and prejudices that hamper impartiality and sound judgment.[1]

Even if someone subjectively believed a PGAL were infallible and could never lie and never misperceive reality, subjective belief would not make it so. It could not make it so. Subjective belief is inherently not, and inherently can never be, superior to objectively verifiable fact. 

Yet the courts indulge—and knowingly indulge—in this kind of thing all the time. “Trust that the PGAL is telling us the truth because he/she is a PGAL,” or “We don’t need to hear from the children directly, the PGAL speaks for them.” It would be one thing if a PGAL claimed to speak for a child client and the child client at least went on the record to verify, “Yes, what the PGAL just proffered is correct,” but we don’t even have that. Once a PGAL is appointed, the child is rarely—if ever—heard from himself/herself. Even when the child is willing to testify. I’m not kidding. I’m not exaggerating.

Sometimes we don’t have objective proof. Sometimes all we have to go on is believing (or not believing) someone’s word. But belief is plainly not the highest standard of proof (thank goodness). When we can rely on fact over faith, we are morally, intellectually, and legally obligated to do so. 

When accuracy and truth matter (and when do they not?) and if and when we can hear directly from that particular person himself/herself, no one should “trust” what anyone (not just you–anyone) says someone else allegedly said.

Any PGAL who would assert, “I have or could have objective verification for my claims, but I refuse to provide such verification; take my word for it,” is a PGAL no one can be obligated to believe. I ask sincerely: how can any PGAL or judge or commissioner who believes that the PGAL serves to silence a child client’s own voice be trusted?

Utah Family Law, LC | | 801-466-9277

[1] Indeed, if we took every word of the PGAL as gospel, we wouldn’t need a judge to do anything other than rubber stamp what the PGAL says. If the PGAL says the children claim Dad beat them, well then, that’s what the children said—after all, the PGAL says so. No need to inquire into whether the children were coached, coerced, brainwashed, or chose to lie. And because the law in Utah is construed to mean that children “represented” by PGALs are prohibited from speaking for themselves, no inquiry with the children on the record will ever take place. Does that look like “fact” finding, like due process, like a just and equitable process to you?

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McFarland v. McFarland – 2024 UT App 31 – attorney’s fees awards

McFarland v. McFarland – 2024 UT App 31



Opinion No. 20221044-CA, Filed March 14, 2024

Second District Court, Farmington Department

The Honorable David J. Williams No. 084701533

Angilee K. Dakic, Attorney for Appellant, Jacob K. Cowdin, Attorney for Appellee


HARRIS, Judge:

¶1 This domestic dispute between Bruce Ray McFarland (Bruce) and Nicole S. McFarland (Nicole) comes before us for a second time. This time, we are asked to assess the propriety of two aspects of the district court’s most recent set of orders: the court’s decision to modify the parties’ divorce decree and award the house in which the parties lived while they were married (the Home) to Bruce instead of to Nicole, and the court’s decision to require Nicole to pay Bruce’s attorney fees incurred in litigating the petition to modify. We see no reversible error in the court’s award of the Home to Bruce, and we therefore affirm on that issue. But we agree with Nicole that the court erred in awarding attorney fees to Bruce, and we therefore reverse that fee award.


¶2        In our previous opinion, we set forth many of the relevant facts underlying the parties’ dispute. See McFarland v. McFarland, 2021 UT App 58, ¶¶ 2–18, 493 P.3d 1146. In the interest of brevity, we recite in this opinion only those facts necessary to our decision.

¶3        Bruce and Nicole’s divorce decree (the Decree) was entered in 2009 following a negotiated settlement. As relevant here, the Decree required Bruce to pay Nicole $1,700 per month in alimony, and it awarded the Home to Nicole “subject to” her “assumption” of the mortgage, tax, and insurance obligations associated with the Home as well as “a judicial lien in the sum of $12,034.24 payable to” Bruce. According to the Decree, Nicole was to pay Bruce the lien amount on the occurrence of the first of these events: (1) when Nicole remarries or cohabits; (2) when the Home is sold or rented; (3) when Nicole “moves from” the Home or no longer uses it as her primary residence; or (4) when the parties’ youngest child graduates from high school. Several of those events have long since occurred; indeed, the district court later found that Nicole “abandoned” the Home in 2010. At no point did Nicole ever make any of the mortgage, tax, or insurance payments on the Home, nor did she ever pay Bruce the lien amount.

¶4        Instead, after a brief period in which he did not live in the Home, Bruce moved back into the Home in 2009 and has lived there at all times since. And after entry of the Decree, Bruce— rather than Nicole—has made all mortgage, tax, and insurance payments on the Home, and he has also maintained and made improvements to the Home. But other than one single payment in January 2009, Bruce paid no alimony to Nicole. Thus, soon after the Decree was entered, both parties began to ignore many of the Decree’s important provisions. But for the next seven years, neither party seemed bothered by the other’s noncompliance, and neither sought to modify or enforce the terms of the Decree.

¶5        In 2017—apparently motivated by a desire to refinance the Home—Bruce filed a petition to modify (Bruce’s Petition), asking the court to modify the Decree to (among other things) award him the Home. Nicole responded not only by resisting Bruce’s Petition, but also by filing two motions asking the court to hold Bruce in contempt for (among other things) failing to pay alimony and for “willfully occup[ying Nicole’s] property,” namely, the Home. Concerning the Home, Nicole asked that the court “immediately restore[]” her “to the use and possession of” the Home. Later, in 2019, the court found Bruce in contempt for failing to pay alimony, and it ordered Bruce to pay Nicole over $150,000 in unpaid alimony. But the court declined to find Bruce in contempt for occupying the Home. The court made no ruling on Bruce’s Petition, however, because that matter had apparently not yet been certified for trial. But the court allowed Bruce to continue living in the Home “on a temporary basis” until the matter was finally resolved.

¶6        Both parties appealed several aspects of the court’s 2019 rulings and, in this case’s first trip to this court, we affirmed the court’s alimony award to Nicole and remanded “the case for further proceedings” regarding (among other things) Bruce’s Petition. Id. ¶¶ 46–47.

¶7        Following remand, the district court held a hearing to consider matters regarding the Home. Bruce asserted that any claim Nicole might make regarding possession of the Home was barred by several equitable doctrines, including waiver and laches. In particular, Bruce claimed that Nicole had waived any claim to the Home by moving out in 2010 and taking no action in the intervening years to challenge Bruce’s possession of it, and that Nicole’s claim was barred by laches because her “delay in bringing her claim” was “unreasonable” and “prejudicial to Bruce.” Nicole resisted all of these arguments and, in addition, claimed that Bruce’s Petition was barred by res judicata.

¶8        At the conclusion of the hearing, the court made an oral ruling granting Bruce’s Petition and denying Nicole’s motion regarding the Home. The court later issued a written ruling setting forth its findings and conclusions. In that ruling, the court found that Nicole’s abandonment of the Home in 2010 constituted “a material and substantial change in circumstances.” The court also rejected Nicole’s claim that Bruce’s Petition was barred by res judicata. And the court determined that modification of the Decree to award Bruce the Home was appropriate; the court found merit in several of Bruce’s equitable arguments. Specifically, the court determined that Nicole had waived any claim to the Home by moving out and failing to make any payments related to the Home since the Decree was entered. And the court concluded that laches also barred Nicole’s claim to the Home because she had delayed bringing any such claim and her delay had prejudiced Bruce because Bruce had made payments and improvements on the Home in the intervening years. The court noted that Bruce had also delayed in bringing his petition, but it found that Nicole had not been prejudiced by Bruce’s delay.

¶9        Bruce asked the court to award him attorney fees incurred in litigating his petition. As the district court interpreted it, this request was grounded not in the attorney fees statute found in the family law code, see Utah Code § 30-3-3, but, instead, in Utah’s bad-faith attorney fees statute, see id. § 78B-5-825. The court granted Bruce’s request, but it made no specific finding that Nicole’s claims and defenses regarding the Home had been “without merit.” It did make an express finding that “Nicole’s effort to pursue an award of [the Home] roughly eight (8) years after abandoning [it] was an act of bad faith” that Nicole undertook with a “retaliatory” motive in reaction to the filing of Bruce’s Petition. And the court noted that, during the intervening years, Nicole “had not satisfied the conditions in the Decree that allowed her to take possession of” the Home. Based on these findings, the court concluded that “law and equity call for an award of attorney fees in Bruce’s favor as it relates to the issue of” the Home. The court later quantified that attorney fee award, ordering that Nicole pay Bruce $7,390.67 for attorney fees he incurred litigating issues related to the Home.


¶10      Nicole appeals two aspects of the court’s rulings. First, she challenges the court’s order modifying the Decree to award the Home to Bruce. “In this context, we review the district court’s underlying findings of fact, if any, for clear error,” and we review “its ultimate determination regarding the petition to modify[] for an abuse of discretion.” Myers v. Myers, 2023 UT App 20, ¶ 19, 526 P.3d 1253. Whether the court chose and applied the correct legal standard is a question of law “that we review for correctness.” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159.

¶11      As discussed below, our analysis on this point focuses on the court’s application of the doctrine of laches and, in particular, on its determination that Bruce was prejudiced by Nicole’s delay in asserting a right to possession of the Home. “The application of laches to a particular set of facts and circumstances presents a mixed question of law and fact.” Peterson v. Pierce, 2019 UT App 48, ¶ 9, 440 P.3d 833 (quotation simplified). While “[l]aw-like mixed questions are reviewed de novo,” mixed questions that are more “fact-like” are “reviewed deferentially.” Sawyer v. Department of Workforce Services, 2015 UT 33, ¶ 11, 345 P.3d 1253. For the reasons discussed more fully later, see infra ¶¶ 18–21, we conclude that a district court’s prejudice determination made in the laches context is more fact-like than law-like and, therefore, calls for a more deferential standard of review.

¶12 Second, Nicole challenges the court’s award of attorney fees to Bruce under the bad faith statute. “We review a trial court’s grant of attorney fees under the bad faith statute as a mixed question of law and fact.” Outsource Receivables Mgmt., Inc. v. Bishop, 2015 UT App 41, ¶ 11, 344 P.3d 1167 (quotation simplified).

“A finding of bad faith is a question of fact and is reviewed by this court under the ‘clearly erroneous’ standard,” but a “‘without merit’ determination is a question of law” that we review “for correctness.” Id. (quotation simplified).



¶13      We first address Nicole’s challenge to the district court’s grant of Bruce’s Petition and its accompanying order modifying the Decree to award the Home to Bruce. The court based its ruling on several distinct legal doctrines, including waiver and laches. Nicole challenges the application of these doctrines, asserting that none of them apply to the facts at hand. For the reasons discussed, we conclude that the court did not abuse its discretion when it concluded that Bruce was prejudiced by Nicole’s delay in asserting her claim to the Home, and that therefore the doctrine of laches operates to bar Nicole’s claim. Because we affirm the court’s laches determination, we need not reach the question of whether the court erred in its application of waiver or any other legal or equitable doctrine.

¶14 “Laches” is an equitable doctrine “founded upon considerations of time and injury.” Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 17, 321 P.3d 1021 (quotation simplified). The thing that the doctrine is concerned about “is not mere delay, but delay that works a disadvantage to another.” Id. (quotation simplified). “In Utah, laches traditionally has two elements.” Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 2012 UT 66, ¶ 29, 289 P.3d 502. First, the party claiming laches must demonstrate that the other party “unreasonably delayed in bringing” a claim. See Veysey v. Nelson, 2017 UT App 77, ¶ 8, 397 P.3d 846 (quotation simplified), cert. denied, 400 P.3d 1046 (Utah 2017). Second, the party claiming laches must demonstrate that it “was prejudiced by that delay.” Id. (quotation simplified); see also Laches, Black’s Law Dictionary (11th ed. 2019) (defining “laches” as “[t]he equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed in asserting the claim, when that delay has prejudiced the party against whom relief is sought”).

¶15      Nicole concedes that the first element of the laches test— unreasonable delay—is met here, given her eight-year delay in objecting to Bruce’s possession of the Home. Because of this concession, we need concern ourselves only with the second element of the laches test: whether Bruce was prejudiced by Nicole’s unreasonable delay.

¶16      On that point, the district court made a specific finding that Bruce would suffer “clear prejudice” if Nicole were allowed to claim possession of the Home. The court observed that Bruce had raised the parties’ children in the Home, had made “improvements” to the Home, and had taken care of “all financial obligations related to” the Home since 2009. In light of these undisputed facts, the court determined that Bruce would be prejudiced if Nicole were allowed to assert, after all these years, a right to exclusively use and possess the Home.

¶17 Nicole challenges the court’s prejudice determination, asserting that her delay in asserting her rights to the Home was actually “a benefit to Bruce” because it gave him a place to live and because he was able to take “significant amounts of equity out of” the Home “on multiple occasions.” But before we can address Nicole’s challenge to the court’s prejudice determination, we must first determine the appropriate standard of review.

¶18      As previously mentioned, see supra ¶ 11, a district court’s “application of laches to a particular set of facts and circumstances presents a mixed question of law and fact.” Peterson v. Pierce, 2019 UT App 48, ¶ 9, 440 P.3d 833 (quotation simplified). “Mixed questions fall somewhere in the twilight between deferential review of findings of fact and searching reconsideration of conclusions of law.” In re adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382. The level of deference afforded to district courts in such situations thus depends on whether the determination at issue is more law-like or fact-like. See Sawyer v. Department of Workforce Services, 2015 UT 33, ¶ 11, 345 P.3d 1253. We must therefore assess whether a determination regarding prejudice, in the laches context, is more fact-like than law-like. As far as we are aware, no Utah court has yet rendered a specific ruling on this question.

¶19      When considering whether a question “should be deemed law-like or fact-like, we evaluate the marginal costs and benefits of conducting either a searching de novo review or a deferential review of a lower tribunal’s resolution of the mixed question.” Id. ¶ 12 (quotation simplified). To that end, our supreme court has instructed us to consider three relevant factors:

(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court’s application of the legal rule relies on facts observed by the trial judge, such as a witness’s appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting discretion to trial courts.

Id. (quotation simplified).

¶20      The first two factors compare “the relative competencies” of “a fact-finding tribunal” and that of “an appellate court.” Id. ¶ 13. District courts and other fact-finding tribunals “are in a superior position to weigh facts that depend upon credibility determinations, the direct observation of witness testimony, and other evidence not fully captured in a written appellate record.” Id. On the other hand, appellate courts are in a better position to fashion “broad rules that can create a greater degree of consistency and predictability to future cases involving a particular mixed question.” Id. An inquiry that is highly “fact-intensive” is not one that “lend[s] itself to consistent resolution by a uniform body of appellate precedent.” Carbon County v. Workforce Appeals Board, 2013 UT 41, ¶ 7, 308 P.3d 477 (quotation simplified). Thus, a district court is “entitled to deference” where its determinations are “fact-intensive” because an appellate court “would be in an inferior position to review the correctness” of such a decision. Id. (quotation simplified).

¶21 Assessing whether a litigant’s unreasonable delay in bringing a claim has caused another party to sustain prejudice is a case-specific, fact-bound inquiry that will depend on the particular circumstances at hand, as well as—at least in many cases, including this one—on the district court’s perception of the progression of the litigation. Indeed, for this very reason, Utah appellate courts have concluded, in a number of analogous contexts, that appellate review of a district court’s prejudice determination should be deferential. See State v. De La Rosa, 2019 UT App 110, ¶ 9, 445 P.3d 955 (reviewing deferentially a district court’s “substantial adverse effect” determination, made in the context of assessing whether a new trial was warranted, “due to [the district court’s] advantaged position to judge the impact of legal errors on the total proceedings” (quotation simplified)); see also State v. Maestas, 2012 UT 46, ¶ 325, 299 P.3d 892 (stating that district courts “have discretion in granting or denying a motion for a mistrial . . . because of the[ir] advantaged position . . . to determine the impact of events occurring in the courtroom on the total proceedings” (quotation simplified)); Butler v. Mediaport Ent. Inc., 2022 UT App 37, ¶¶ 32, 48, 508 P.3d 619 (stating that “we review a district court’s harmlessness determination,” made in the discovery and disclosure context, deferentially “for abuse of discretion” because “a district court will almost always have a better vantage point than we do to make such a call”). We also observe that laches is an equitable doctrine, see Insight Assets, 2013 UT 47, ¶ 17, and “equitable inquiries are designed to be flexible, taking into account all relevant factors in light of the particular circumstances,” Jones v. Layton/Okland, 2009 UT 39, ¶ 17, 214 P.3d 859. “Because of the fact-intensive nature of equitable doctrines,” we generally grant district courts “broader discretion in applying the law to the facts.” Volonte v. Domo, Inc., 2023 UT App 25, ¶ 28, 528 P.3d 327 (quotation simplified). For all of these reasons, we conclude that a district court’s determination that a litigant has (or has not) sustained prejudice as a result of another party’s unreasonable delay in bringing a claim is entitled to deference from appellate courts and is a determination that should be reviewed for abuse of discretion.

¶22 We discern no abuse of discretion in the district court’s determination that Bruce sustained prejudice as a result of Nicole’s eight-year delay in asserting her right to the Home. The court’s ruling was well-reasoned and supported by evidence in the record. As noted, the court relied on the fact that Bruce had lived in the Home the entire time, raised the parties’ children there, and—perhaps most importantly—had taken care of all financial obligations related to the Home, including all maintenance and improvements.

¶23      We acknowledge Nicole’s point that Bruce enjoyed certain advantages as a result of living in the Home. As Nicole points out, Bruce would have had to pay for housing whether he lived in the Home or elsewhere, and Bruce was apparently able to take advantage of the equity in the Home. These facts could have led the district court to make a different determination with regard to whether Bruce was prejudiced by Nicole’s delay. But the presence of conflicting evidence does not compel reversal here. Given the applicable standard of review, the relevant question is not whether we would have made the same determination had we been sitting as the assigned trial-level arbiters in this case; rather, the relevant question is whether we discern an abuse of discretion in the decision the assigned judge made. See Stichting Mayflower Mountain Fonds v. United Park City Mines Co., 2017 UT 42, ¶ 49, 424 P.3d 72 (stating that “[t]he question presented is not whether we would have granted” the motion in question, but instead “whether we find an abuse of discretion in the district judge’s decision to deny the motion”). Where the court’s decision is supported by evidence in the record and free from legal error, we will not disturb it. And that is the case here.

¶24      Nicole resists this conclusion on three additional grounds. First, she points out that Bruce also delayed in asserting a right to the Home, and she complains that the district court applied the principles of laches in an uneven manner. But on this point, the district court made a specific determination that, although Bruce delayed the invocation of his claim to the Home, Nicole did not sustain any prejudice as a result of Bruce’s delay. The court noted that, during the time between her “abandonment” of the Home and the filing of Bruce’s Petition, Nicole “did not have to satisfy any financial obligations related to” the Home, “including those required by the Decree.” The court’s determination was therefore supported by evidence in the record and, while a different judge might have reached a different conclusion on these facts, we cannot say that the court’s ruling was an abuse of its discretion.

¶25      Second, Nicole asserts that Bruce should not be able to take advantage of equitable doctrines such as laches because, in her view, Bruce had “unclean hands” due to his failure to pay alimony and child support, as required by the terms of the Decree, during the years he lived in the Home. See Goggin v. Goggin, 2013 UT 16, ¶ 60, 299 P.3d 1079 (“The doctrine of unclean hands expresses the principle that a party who comes into equity for relief must show that his conduct has been fair, equitable, and honest as to the particular controversy in issue.” (quotation simplified)). But while Nicole (successfully, as it turned out) asked the district court to award her back alimony and child support, she never asked the district court to apply the doctrine of unclean hands, and her arguments in this regard are therefore unpreserved for appellate review. See State v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (“A failure to preserve an issue in the trial court generally precludes a party from arguing that issue in an appellate court, absent a valid exception.”).

¶26      Nicole does not explicitly ask us to utilize any of the exceptions to our preservation requirement, but she does assert that the district court erred by failing to “sua sponte” apply the unclean hands doctrine. Certainly, a court may invoke that doctrine without being asked to do so. See 30A C.J.S. Equity § 116 (2023) (“A defense of unclean hands need not be pleaded. The doctrine may be applied by the court sua sponte.”). But the fact that a court may invoke the doctrine in a sua sponte manner does not relieve a party of its otherwise-applicable obligation to preserve issues for appellate review. Indeed, construed liberally, Nicole’s argument—that the district court erred by failing to sua sponte invoke the unclean hands doctrine—is an assertion that the court plainly erred by not concluding that Bruce’s unclean hands barred him from accessing equitable doctrines like laches. But this assertion fails because plain error review no longer exists in civil cases like this one. Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 44, 507 P.3d 357. Because plain error review is unavailable, and because Nicole does not ask us to employ any other exception to our preservation requirement, the fact that her “unclean hands” argument is unpreserved requires us to reject her argument without reaching its merits.

¶27      Finally, Nicole asserts that Bruce’s Petition was barred by the doctrine of res judicata. Essentially, she asserts that, because the parties already litigated the issue of entitlement to the Home, and because the Decree awarded the Home to her, Bruce is barred from relitigating that issue now. Nicole correctly asserts that res judicata is not categorically inapplicable in divorce cases. See Throckmorton v. Throckmorton, 767 P.2d 121, 123 (Utah Ct. App. 1988) (“The doctrine of res judicata applies in divorce actions.”). But “Fi]n the family law context, our legislature has given district courts the authority to revisit many of the provisions contained in a typical divorce decree, including provisions pertaining to child custody, child support, alimony, property distribution, and debts.” See Robertson v. Stevens, 2020 UT App 29, ¶ 7, 461 P.3d 323 (emphasis added); see also Utah Code § 30-3-5(5). In this context, a party may seek post-judgment modification of the property distribution provisions of a divorce decree, but in order to succeed in that endeavor the party “must demonstrate that a substantial change in circumstances has occurred since the entry of the decree.” See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998) (quotation simplified); see also Throckmorton, 767 P.2d at 123 (“[T]he application of res judicata is unique in divorce actions because of the equitable doctrine which allows courts to reopen alimony, support, or property distributions if the moving party can demonstrate a substantial change of circumstances since the matter was previously considered by the court.”).

¶28 Thus, modification of the Decree’s property distribution provisions is appropriate—even post-judgment and even taking into account principles of res judicata—so long as Bruce can demonstrate that, since entry of the Decree, there has been a substantial change of circumstances that would justify the court taking a second look at the terms of the distribution. And on that point, Nicole raises no challenge; indeed, in her reply brief on appeal she makes clear that she “is not arguing lack of changed circumstance,” and she affirmatively acknowledges that, in this case, “there have been changed circumstances.” Thus, the court had the authority to revisit the property distribution provisions of the Decree, and we reject Nicole’s argument to the contrary.

¶29    For these reasons, we perceive no abuse of discretion in the district court’s determination that Bruce was prejudiced by Nicole’s unreasonable delay in asserting her right to possess the Home. Because Nicole does not contest the other element of laches—unreasonable delay—both elements are met. We therefore affirm the district court’s determination that the equitable doctrine of laches barred Nicole’s claim to the Home, and on that basis we affirm the court’s grant of Bruce’s Petition and its accompanying order awarding the Home to Bruce.


¶30      Next, we address Nicole’s challenge to the court’s award of attorney fees to Bruce, incurred in connection with litigating issues related to the Home. On this point, we find merit in Nicole’s arguments, and we therefore reverse the court’s fee award.

¶31 Bruce’s fee request was grounded in Utah’s bad-faith attorney-fees statute, which empowers courts to “award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith.” See Utah Code § 78B-5-825(1). Before awarding fees under this section, a district court—in addition to determining that the requesting party is the “prevailing party”—must make specific findings that the opposing party’s claim is (1) “without merit” and (2) “not brought or asserted in good faith.” Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 76, 469 P.3d 1003 (quotation simplified). These two findings “must be made independently” from one another. Still Standing Stable, LLC v. Allen, 2005 UT 46, ¶ 12, 122 P.3d 556. Nicole asserts that the court failed to make a specific finding that her claims and defenses regarding the Home were without merit, and she maintains that the fee award was therefore improper. We agree with Nicole.

¶32      While the court made a specific finding that Nicole’s claims and defenses regarding the Home were asserted in “bad faith” and on a “retaliatory” basis, it made no specific finding that Nicole’s claims were without merit. Bruce acknowledges the lack of an express finding on this point, but he asserts that we can infer such a finding from (a) the fact that the court rejected Nicole’s claims on their merits (i.e., that she lost) and (b) the court’s specific bad-faith finding. We see the matter differently.

¶33      First, a determination that a party lost on the merits is not equivalent to a determination that the party’s claims were without merit for purposes of the bad-faith statute. “Without merit” in this context means something worse than just having a losing claim. Indeed, our supreme court has stated that the term “without merit,” as used in the bad-faith statute, “implies bordering on frivolity,” with the term “frivolous” meaning “of little weight or importance having no basis in law or fact.” Cady v. Johnson, 671 P.2d 149, 151 (Utah 1983) (quotation simplified); see also Migliore v. Livingston Fin. LLC, 2015 UT 9, ¶ 31, 347 P.3d 394 (“To determine whether a claim is without merit, we look to whether it was frivolous or of little weight or importance having no basis in law or fact.” (quotation simplified)). And on at least one occasion, our supreme court has concluded that a losing claim was not “without merit,” because the claim—even though it was not the prevailing claim—involved a question of “first impression” and “had a basis in law and fact.” See In re Olympus Constr. LC, 2009 UT 29, ¶ 31, 215 P.3d 129. We therefore may not infer, merely from the district court’s rejection of Nicole’s claims on their merits, that the court considered those claims to be so meritless as to be “bordering on frivolity.” See Cady, 671 P.2d at 151.

¶34 Nor may we draw that inference from the court’s “bad faith” finding. As noted already, the two separate findings— without merit and bad faith—“must be made independently” from one another. Still Standing Stable, 2005 UT 46, ¶ 12. And this makes sense, because the two elements of the statutory test are aimed at two different things. The first element (“without merit”) is concerned with the objective quality of the claim itself, see Migliore, 2015 UT 9, ¶ 31, while the second element (“bad faith”) is concerned with the party’s subjective motivation for bringing it, see Blum v. Dahl, 2012 UT App 198, ¶ 9, 283 P.3d 963 (“A finding of bad faith turns on a factual determination of a party’s subjective intent.” (quotation simplified)). Both elements must be met before a court may award attorney fees under the bad-faith statute. And the presence of one element does not necessarily imply the presence of the other.

¶35 For instance, a party may have a completely frivolous claim that lacks any basis in law or fact, but that party may not be aware of the claim’s lack of merit at the time it was filed. In that situation, the first element of the test is met but, depending on the circumstances, the second might not be. Conversely, a party may have a solid (albeit losing) claim that has a basis in both law and fact, but the party might be bringing that claim for abusive or improper reasons. In that situation, the second element might be met but the first one wouldn’t be. In the case at hand, our review of the record indicates that this might be the situation: Nicole had in her corner a provision in the Decree awarding her the Home, and Bruce had not taken any action to seek modification of that provision in eight years. Given these facts, it is certainly not obvious to us that Nicole’s claims and defenses regarding the Home were “bordering on frivolity,” see Cady, 671 P.2d at 151, even if we take at face value the court’s finding that Nicole brought the claims in a bad-faith effort to retaliate against Bruce.

¶36 Accordingly, we conclude that the absence of any specific finding that Nicole’s claims were without merit renders the district court’s attorney fees award improper.[1]


¶37 We discern no abuse of discretion in the district court’s determination that laches barred Nicole’s claims and defenses regarding the Home, and on that basis we affirm the district court’s grant of Bruce’s Petition and its accompanying order awarding the Home to Bruce. But due to the absence of any finding that Nicole’s claims and defenses were without merit, we reverse the court’s award of attorney fees to Bruce pursuant to the bad-faith statute, and we vacate the part of the court’s judgment that required Nicole to pay $7,390.67 in fees to Bruce.

Utah Family Law, LC | | 801-466-9277

[1] Again invoking the bad-faith statute, Bruce asks us to award him attorney fees he incurred on appeal. We must reject this request because we have reversed the award of attorney fees in the district court. Moreover, we do not consider Nicole’s appellate arguments to have been brought in bad faith.

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Have You Heard That Fathers Defeat Mothers’ Claims of DV and Child Abuse by Claiming Parental Alienation?

We all know the aphorism, “If it looks/sounds to good to be true, it probably is [not true].” This also means, however, that if it looks/sounds too 𝙗𝙖𝙙 to be true, it probably is [not true] too.

Can we all agree that the following claim looks, on its face, too bad to be true?:

A George Washington University Law School article shows that mothers are statistically up to 90% more likely to lose custody of their children when they go on record about abuse. Abusive fathers, who claim parental alienation are almost always granted custody.

So, is the claim true?

I found the article: Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations, by Joan S. Meier George Washington University Law School.

Here is what that article actually claims (this is not the entire article, of course, and I have my doubts about the methodology and the resulting accuracy of the claims themselves, but I digress):

Spoiler alert: the article does not make any “women lose custody 90% of the time when they report abuse” claim.

Quotations directly from the article itself:

“Focusing on cases where it was determined that mothers started with possession of the children, and alleged some type of abuse by the father, the data show mothers losing custody in 26% (284/1111) of cases.”


It is also notable that when mothers report mixed types of child abuse (sexual and physical) their custody losses skyrocket (from under 30% (39/135) up to 50%)(11/22).


• When Fathers cross-claim alienation, courts are more than twice as likely to disbelieve Mothers’ claims of (any) abuse than if fathers made no alienation claim; and

• When Fathers cross-claim alienation, courts are almost 4 (3.9) times more likely to disbelieve Mothers’ claims of child abuse than if fathers made no alienation claim.


As the chart indicates, when fathers claim alienation, the rate at which mothers lose custody shoots up from over 25% to over 50%. That is, fathers’ alienation claims roughly double mothers’ rates of losing custody. When courts credit the alienation claim, rates of maternal losses of custody increase more drastically:

Mothers’ Custody Losses When Courts Credit Fathers’ Alienation Claims

Type of Abuse Alleged Mother Lost Custody:

DV (domestic violence): 60% (15/25)
CPA (child physical abuse): 59% (10/17)
CSA (child sexual abuse): 68% (13/19)
DVCh (domestic violence and child physical abuse): 79% (19/24)
CACSA (child physical abuse and child sexual abuse): 100% (6/6)
Any abuse: 73% (60/82)


“AKA” cases: those in which a court viewed a mother as alienating in her behavior but did not use the term “alienation.”

Mothers’ Custody Losses when Found to have Committed AKA


Custody Losses by Type of Abuse Alleged

Custody Losses When Abuse was Proven

DV  62% (24/39) DV  60% (3/5)
CPA  61% (17/28) CPA  50% (1/2)
CSA  58% (25/43) CSA  –
DVCh  55% (16/29) DVCh  –
CACSA  78% (7/9) CACSA  100% (1/1)
Any  60% (89/148) Any  63% (5/8)


The article is definitely food for thought, but clearly does not find that mothers who allege abuse are 90% more likely to lose/not win custody.

Additionally, one of my critiques of the article is this: it does not reveal whether the abuse-alleging mothers who lost/did not win custody was due purely to their alleging abuse or purely because they were found to have engaged in parental alienation or something like it. For example, if these mothers were themselves child abusers or were found to be unfit parents for other reasons (i.e., child neglect, substance abuse, lacking sufficient housing, ability to provide financially, practicing poor hygiene, insufficient bonding, etc.), how many of them would have lost/not won custody anyway? The article does not address this.

But even if the only reason these mothers lost/did not win custody was due to the court finding them to have engaged in parental alienation, would that not be reason enough? Now, I’m not asserting that all cases of actual parental alienation should cause a mother (or father committing alienation) to lose/not win custody (level of severity must be considered), but parental alienation would be, in my professional opinion, sufficient grounds for awarding custody of children to the other parent, assuming the other parent were found, on balance to be 1) sufficiently fit as a parent; and 2) the more fit of the two parents.

Utah Family Law, LC | | 801-466-9277

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Why Get it Straight From the Horse’s Mouth When You Can Get a Truncated Version, Second-Hand?

When a custody evaluator and/or private guardian ad litem is/are appointed in a divorce case in which custody and parent-time of the children is disputed, they usually interview the children who are the subject of the custody and parent-time dispute and then make observations and recommendations regarding what the custody and parent-time awards should be based in part on those interviews.

But they never record their interviews with the children.

Instead, every custody evaluator (except one) that I know and every PGAL that I know wants us to believe (as opposed to knowing, based upon an objectively verifiable recording) that 1) they did in fact speak with the children; 2) what the custody evaluators and PGALs report second-hand and in summary fashion accurately reflects what was (and was not) asked of the children and what the children said (and did not say) in response; and 3) that the custody evaluator’s and PGAL’s assessment of the children’s credibility (assuming–not knowing–that the child were interviewed in the first place and that what the children allegedly said is in fact what the children said) is correct.

Such a policy is incongruous with the way any other witness account is presented to a court.

Courts claim they need to know the child’s “intent [whatever that means in the context of a child custody dispute] and desires.”

Yet the court goes out of its way to ensure that what we get from custody evaluators and/or PGALs not just second-hand accounts of the child’s purported statements, but summary second-hand accounts of the child’s purported statements.

Then, on the basis of the purported, second-hand summary accounts, the non-witness PGAL “makes a recommendation regarding the best interest of the minor” by ostensibly “disclos[ing] the factors that form the basis of the recommendation” when the purported factors have–not necessarily, but by design, no less–no objectively verifiable basis in the child’s testimony (because there is no testimony). Such a “take my un-recorded, unverifiable, second-hand word for it” process elevates faith over fact, and needlessly.

Yet by way of the court interviewing the child directly and on the record (or by having the child deposed in a fitting, appropriate setting, of course), the court could easily obtain objectively verifiable knowledge of not only the child’s “intent and desires” stated in the child’s own words but in the same way also obtain knowledge of the child’s relevant experiences, observations, feelings, opinions, and anything else the court may want to learn that bears on the child custody and parent-time award decisions.

Everyone who tries to justify the policy against child testimony does so by claiming that there is no equal or superior alternative. Such claims are without merit.

I would be cruel and unreasonable if I did not concede that a child should not be questioned on and for the record if it were proved (as reflected in particularized findings, not generalized views or preferences) that that particular child likely will (not merely could) be harmed by testifying to the extent that the value of the testimony does not outweigh the harm. In such a situation barring that child from testifying would be warranted.

But when avoiding the subject altogether is worse for the child than confronting it, question the child on the record–for the child’s sake. For the sake of the truth- and fact-finding processes. It is cruel and unreasonable to silence the child that way.

Many children are not only willing to testify to the facts bearing upon the child custody and parent-time awards, they want to testify to them. Even when it may be unpleasant to address the topics. Regardless of how eager children may be to testify, they have the greatest stake in the child custody and parent-time awards. They deserve to be heard from, and in their own words. Who would (who could, credibly) gainsay that?

And the notion that a judge or commissioner interviewing a child, or a child being questioned in a deposition (and the child could be deposed by the PGAL, if there were sufficient facts to support a conclusion that the child is in danger of suffering verifiable serious, irreparable harm were the child questioned by the parents’ respective attorneys) would inherently cause a child unjustifiable harm is self-evidently false.

First, I have personal experience with children testifying for the record in child custody and parent-time proceedings without incident. I (and others who have the same experience actually deposing a child) know that it is not inherently harmful to every child who is old enough to testify competently.

Second, children regularly testify in proceedings substantively indistinguishable from divorce/parentage child custody and parent-time proceedings (e.g., contested child abuse, neglect, or dependency cases, contested petitions for termination of parental rights cases, contested adoption and guardianship cases). This is proof that child testimony–though it may be frightening or saddening for some children–is not universally catastrophic for all (even most) children who are old enough to testify competently.

Thus, the assertion that judges, domestic relations commissioners, and lawyers cannot competently question a child in a divorce-based child-custody and parent-time dispute unless they are “specially trained as PGALs (especially when the ‘special training’ can be obtained in a matter of a few days’ time)” is invalid on its face. If one need not be “specially trained” to question a child in contested child abuse, neglect, or dependency cases, contested petitions for termination of parental rights cases, contested adoption and guardianship cases, one need not be “specially trained” as a PGAL to question a child competently and with due sensitivity.

My biggest worry (among many) about the way custody evaluations and PGAL appointments work in Utah is when custody evaluators and PGALs–who can by recording child interviews easily provide the parents and the court with an objective way of verifying whether the children were interviewed, how well or poorly they were interviewed, what they were asked (and not asked) and what they said (or did not say) in response–refuse to do so.

Utah Family Law, LC | | 801-466-9277

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