You have just decided to file for divorce. Or perhaps you have been served with divorce papers. At some point early on in the process you will likely think to yourself, “I have so many text messages that clearly prove my spouse is terrible,” or “I have videos of my spouse behaving badly.” You could be right. But do you know what kind of evidence is relevant and that the court finds persuasive? And have you considered the implications of what your “evidence” actually says about you? For every gotcha text message or video you have, does your spouse have similar dirt on you?
You may think to yourself, “I’ll just delete the messages that cast me in a bad light,” or “I’ll edit the videos a certain way to make myself look better” and engage in other cherry picking. This rarely works. Indeed, it often backfires. Manipulating the facts is a form of lying. And it’s not that hard to spot or expose.
Understand what kinds of evidence the court needs and what is useless to a court. The court’s jobs are clearcut: 1) end the marriage 2) divide the marital assets, 3) divide responsibility for marital debts, 4) deal with custody of the children (if any), parent-time, and child support, and 4) determine whether to award alimony, and if so, how much and for how long based upon the recipient’s need and the payor’s ability to pay. That’s it. It is not the purpose of the divorce court to settle scores between you and your spouse or to declare who’s worse than the other. While spousal or child abuse can be relevant in a divorce case, stories about shouting matches and squabbles are nothing new or compelling in a divorce case.
Take a businesslike approach to your divorce case. You have to work out your feelings in a divorce case, just not in court. Don’t dwell on your feelings too much when dealing with the court; it’s a waste of your time and energy.
What should you do, then? You need to face the truth and deal with the truth. Submit the relevant evidence and concede your flaws and faults along with it. Your credibility is more important than trying to put up a false front. Your credibility is easier to show and maintain when you’re honest. Courts are more sympathetic with honest people than with liars.
This is a subject that comes up frequently. It comes up frequently not because misappropriating child support is a hard problem to mitigate but because the courts don’t have the will to implement effective mitigation measures.
When one of the factors in determining the child support award is essentially “making sure the less affluent parent (the poorer parent) has enough money to afford the costs of the lifestyle to which the child is accustomed,” this question arises: how is it ensured that the money paid by the child support obligor (the one paying support) to the child support obligee (the child support recipient) is spent on funding “the lifestyle to which the child is accustomed”? An associated question is: what is to stop the child support obligee from spending the funds on the obligee herself/himself?
The answer to both questions is fairly easy to implement:
Audit the child’s needs (rigorously; and we can define needs as “the lifestyle to which the child is accustomed” for this purpose)
Determine the costs of the child’s needs
Award the amount of child support paid based upon the child’s needs
Require the child support obligee to account for (with objectively verifiable proof) the expenditure of the child support funds paid, so that both the child support obligor and the court (and even the child himself/herself) can verify that the child support funds are not being misappropriated.
Utah even has a statutory provision that gives a court the option of requiring the child support obligee to account for the expenditure of child support funds[1], but in 26 years of practice I have yet to see a court order that the child support obligee account.
(1) The court or administrative agency which issues the initial or modified order for child support may, upon the petition of the obligor, order prospectively the obligee to furnish an accounting of amounts provided for the child’s benefit to the obligor, including an accounting or receipts.
(2) The court or administrative agency may prescribe the frequency and the form of the accounting which shall include receipts and an accounting.
(3) The obligor may petition for the accounting only if current on all child support that has been ordered.
Special masters and parent coordinators (and co-parenting therapists, co-parent coaches/consultants, and their ilk) were invented for the purpose of unburdening courts from some of the conflict associated with domestic relations litigation. They fail to fulfill their purpose. They do not provide value for the money they charge. The parent(s) end up wasting money on a special master, parent coordinator, etc. while the disputes either persist or get worse (and sometimes it’s the involvement of the special master and parent coordinators who are to blame, either in full or in part). Besides, for most litigants a special master, parent coordinator, etc. is an expense they cannot (or should not) financially bear.
The idea that divorced parents need more than the laws currently on the books, the (lawful) orders in their divorce and child custody decrees, and the sensible use of law enforcement officers when warranted is to infantilize divorced and separated parents.
In the overwhelming majority of cases, anyone trying to sell you on a special master, parent coordinators, co-parenting therapist, co-parent coach, consultants, blah, blah, blah is either someone who offers such “services” and who is trying to sell them to you or a is a court trying to take the dispute out its lap and place it in someone else’s.
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.
MORTENSEN, Judge:
¶1 The maternal grandparents of two children filed a petition for guardianship, alleging neglect by both parents and abuse at the hands of the children’s father. The guardianship was contested, and a trial was held. After trial, the juvenile court granted the petition, finding facts consistent with the allegations of the petition and determining that the guardianship was in the best interest of the children. Further, the juvenile court determined that the mother’s parent-time, if any, would take place at the unfettered discretion of the grandparents. The mother appeals, claiming the juvenile court erred in determining neglect, erred in failing to order parent-time, and wrongfully denied a motion to change venue as to one of the children. For the most part, we affirm. However, the juvenile court’s findings regarding the mother’s parent-time rights are inadequate, and we therefore remand this matter for the entry of further findings and conclusions as necessary.
BACKGROUND
¶2 AG (Mother) and JH (Father) are the natural parents of GH and RH (the Children).[1] In April 2022, Mother’s parents, RG and RG (Grandparents), petitioned for guardianship and custody of the Children, alleging that such a placement was in the best interest of the Children due to Father’s abuse and both parents’ neglect. A few days later, Grandparents filed an ex parte motion for temporary custody of the Children, and the juvenile court granted the request.
¶3 At a pre-trial hearing, Mother asked for an expedited evidentiary hearing regarding temporary custody. The court declined that request and instead held a combined adjudication and disposition hearing over two trial days in July and August 2022.
¶4 After that hearing, the court issued an order setting forth findings of fact and conclusions of law regarding adjudication and disposition. Because Mother does not dispute the findings of fact, we recite the facts directly from the juvenile court’s findings.[2]
¶5 The court took judicial notice of a 2019 order in which the same court terminated Mother’s parental rights to an older child, who was adopted by Grandparents shortly thereafter. Mother stated she had “no idea” why her maternal rights for the older child were terminated, but the record shows that it was primarily due to Mother’s neglect.
¶6 Mother moved in with Grandparents in Price, Utah, in July 2019 and lived with them through the first part of January 2022. From June through September 2021, Mother worked evenings (5:00 p.m. to 9:00 p.m.). She had surgery for “a minor thing” in September 2021. Mother was unemployed until she obtained full-time employment in December 2021. At this job, she worked ten-hour shifts (10:00 a.m. to 8:00 p.m.) four days per week.
¶7 While living with Grandparents, Mother “relied on [Grandparents] almost exclusively and for nearly everything for [the Children] . . . . [Grandparents] were the primary caretakers for [the Children’s] day-to-day physical, developmental, medical, and financial needs.”
¶8 With regard to the Children’s physical needs, Mother “did very little to make arrangements for [the Children], provide basic care, or assist with household duties,” even when asked to do so. She did not provide “day-to-day food or meals” for the Children, nor did she help with potty training GH.
¶9 Regarding developmental needs, Grandparents provided for “the vast majority of [the Children’s] indoor and outdoor activities, toys, and one-on-one parent-role interactions.” Mother “did very little to actually parent [the Children] or care for their needs,” and she did not assist with “mothering” the Children. When asked to care for the Children, other than watching the Children for about five hours some weekdays when Grandparents were both working, “Mother would often say she was too tired, too busy, be on her phone or smoking, or on her bed resting or lounging.”
¶10 Mother’s sister (Sister) would often visit Grandparents’ house (about two times each week when Grandparents were not there), and she observed Mother being “verbally abusive or terse with [the Children],” leaving them “unattended or unsupervised, not changing diapers as needed, or not caring for them.” The court also found, based on Sister’s testimony, that Mother would often “come to [Sister’s] house (at times unannounced) without childcare supplies or clothes,” asking for help with the Children because Mother was “tired, needed a break, going out with friends, or going to work (although, at times, she did not go to work, but went back to [Grandparents’] house to sleep or smoke).”
¶11 Financially, Mother sometimes shared her government food assistance card but relied on Grandparents for most of the Children’s financial needs. She also relied on Grandparents to provide birthday or Christmas gifts for the Children. She did, however, reimburse Grandparents a few hundred dollars and paid for some daycare.
¶12 Regarding medical needs, Mother took the Children for immunizations, but she did not take them to other types of medical appointments or help Grandparents when the Children were sick with ear infections, colds, or other maladies.
¶13 In January 2022, Mother moved in with another relative (Step-Grandmother) in Highland, Utah, which was twenty minutes from her newly acquired job. Grandparents continued as GH’s primary caretakers in Price, but RH moved to Step-Grandmother’s house with Mother.
¶14 During this time-period, RH received daily and weekly care in four different cities separated by nearly a hundred miles and by four different caregivers besides Mother, namely Step-Grandmother, Great-Grandmother, Father’s mother, and Grandparents. Essentially, Grandparents and Great-Grandmother would relieve Step-Grandmother when she was not available to watch RH. Sometimes Mother would be the one to take RH to Great-Grandmother’s house. Step-Grandmother, Grandparents, the maternal great-grandmother (Great-Grandmother), or Mother transported RH, and sometimes GH, from house to house on weekends. Mother’s mother handled most of the Children’s care coordination, “unless Mother needed to preplan to accommodate her own work schedule.” RH did not stay in “one consistent place or house” during this time-period; RH was at a “different house almost every day of the week, and each week was different than the last.”
¶15 Watching Mother with the Children “scared” Step-Grandmother, and she never saw Mother being “a mother” to the Children. Mother was “negative verbally” to the Children and “put her own wants and needs before RH’s needs.” Mother would get upset when Step-Grandmother wanted to go out, making it necessary for Mother to watch RH.
¶16 Mother provided very little assistance to Step-Grandmother with household duties, except for washing her and RH’s clothes, and “Mother’s bedroom was always cluttered (with RH’s clothes on the floor) and never cleaned.” Mother put RH to bed half the time, but Step-Grandmother noted that the time was never consistent, as Mother sometimes would come home as late as 10:30 p.m. On some Friday nights, Mother did not come home at all until later that weekend.
¶17 While living with Step-Grandmother, Mother changed RH’s diaper only about once per day; smoked cigarettes “all the time”; was “always on her phone”; did not give baby food or regular feeding; and did not read to, play with, sing to, or bathe RH.
¶18 In mid-March 2022, Mother moved into a rental house in Murray, Utah, with RH. Although Step-Grandmother no longer provided RH daily care after the move, Mother still used Grandparents, Great-Grandmother, and Father’s mother to care for RH. Mother’s work schedule changed to eight hours per day, five days per week (12:00 p.m. to 8:00 p.m. or 2:00 p.m. to 10:00 p.m.). Grandparents primarily watched RH on weekends. GH continued to live with Grandparents.
¶19 On April 5, 2022, Mother picked up Father from prison, and he lived with Mother from then until at least July 2022, when Mother learned—on the first day of trial through Father’s probation officer’s testimony—that Father had used drugs just a week before. Before hearing this testimony, “Mother did not believe he would use drugs.” Mother allowed Father to watch the Children unsupervised, and until trial, she had planned to continue living with him, despite knowing that Father was convicted of assaulting someone in prison two months prior to his release and despite complaining to Grandparents that Father was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her.” Father’s assault conviction “did not cause her any concern” about him being with her or the Children.[3] The court found that Mother’s reintroduction of Father into the Children’s lives “was an emphatic demonstration to the Court of Mother’s poor judgment and her continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”
¶20 Mother made efforts to obtain a full-time job and to perform well at her job to provide for her and the Children.[4] But the court concluded that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs” of the Children. Instead, Grandparents, Step-Grandmother, Great-Grandmother, and others provided “the crucial day-to-day parenting and caretaking that are necessary for [the Children] to thrive developmentally and otherwise.”
¶21 The court also found that the Children “thrived living together with [Grandparents] prior to Mother moving out of [Grandparents’] home in January 2022” and after being reunited in Grandparents’ home in April 2022. The court noted that Grandparents “demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.” The court emphasized that the Children should be living together.
¶22 Based on these factual findings, the court concluded there was clear and convincing evidence that Mother neglected the Children. The court also concluded, based on clear and convincing evidence, that the Children’s best interests would be met by granting Grandparents permanent custody and guardianship. Additionally, the court ordered that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management of [Grandparents].”
¶23 As relevant here, Mother moved the court to dismiss Grandparents’ petition for improper venue or to transfer venue, which the court denied. Mother now appeals.
ISSUES AND STANDARDS OF REVIEW
¶24 Mother argues that the juvenile court erred when it determined that the Children were neglected. Mother clarifies that she is not disputing the court’s findings of fact but the court’s application of these findings to the law; therefore, “we accept these findings as true in our analysis on appeal.” d’Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147 P.3d 515. “We view the question presented here as law-like because it concerns whether the facts as constituted meet the legal standard of the statute. . . .
Accordingly, we review the issue presented here giving no deference to the juvenile court.” In re A.B., 2021 UT App 91, ¶ 10, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168.
¶25 Mother also argues that the juvenile court erred in not awarding her parent-time and thus failing to give due consideration to her residual parental rights. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).
¶26 Finally, Mother argues that the juvenile court erred in denying her motion to dismiss or transfer based on venue. Venue “is a question committed to the district court’s discretion, which we review for an abuse of discretion.” Davis County v. Purdue Pharma, LP, 2020 UT 17, ¶ 7, 463 P.3d 619.
ANALYSIS
I. Neglect
¶27 “If, at the adjudication[5] hearing, the juvenile court finds, by clear and convincing evidence, that the allegations contained in the abuse, neglect, or dependency petition are true, the juvenile court shall conduct a dispositional hearing.” Utah Code § 80-3402(1). “The dispositional hearing may be held on the same date as the adjudication hearing . . . .” Id. § 80-3-402(3). At the dispositional hearing, the juvenile court then “may vest custody of an abused, neglected, or dependent minor in the division or any other appropriate person.” Id. § 80-3-405(2)(a)(i). “If a minor has been placed with an individual or relative as a result of an adjudication . . . , the juvenile court may enter an order of permanent legal custody and guardianship with the individual or relative of the minor.” Id. § 80-3-405(2)(d)(i). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement of a preponderance of the evidence; and something less than proof beyond a reasonable doubt. Put differently, this standard requires the existence of facts that make a conclusion very highly probable.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (cleaned up), cert. denied, 531 P.3d 731 (Utah 2023).
¶28 Neglect is statutorily defined, and can be proved in any one of several ways. See Utah Code § 80-1-102(58)(a)(i)–(vi).[6] While the juvenile court found neglect under several subsections, to affirm we need conclude only that neglect was established under one of the bases. See In re E.F., 2013 UT App 13, ¶ 3, 295 P.3d 1165 (per curiam) (upholding juvenile court’s conclusion that mother neglected child under the sole basis of lack of proper parental care by reason of parent’s faults or habits). Among other bases, the juvenile court found neglect under subsection (ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian.” Utah Code § 80-1-102(58)(a)(ii). We agree with the juvenile court that the evidence supported a finding that this basis for neglect had been proved.
¶29 First and foremost, the factual findings demonstrated that Mother did not attend to the Children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick. Mother also did not show any interest in potty training GH.
¶30 Moreover, Mother did not behave in a manner consistent with parenting a child. For example, Mother did not demonstrate a desire to play with the Children, read or sing to them, or buy them birthday and Christmas presents. And Grandparents were the ones to provide the Children’s indoor and outdoor activities and toys rather than Mother.
¶31 Similarly, the findings revealed that Mother lacked interest in being around the Children, and she would refuse to care for them when asked by the family members with whom she was living. Mother would complain that “she was too tired” or “too busy,” or she would prefer to “be on her phone or smoking, or on her bed resting or lounging.” Likewise, Mother would drop off the Children unannounced at Sister’s house—“without child-care supplies or clothes”—because Mother was “tired, needed a break, [or was] going out with friends, or going to work,” although, at times she went back to Grandparents’ house “to sleep or smoke” instead. Mother also would get upset when Step-Grandmother wanted to go out some evenings, thus leaving Mother to care for the Children. In addition, “Mother did not do household duties when asked to do so.”
¶32 Although the court did acknowledge Mother’s commendable efforts with her current job, it still found that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs of each of [the Children].”
¶33 Furthermore, the findings demonstrate that Mother was not troubled by Father being with her or the Children. Even though Mother knew that Father was convicted of assaulting someone while in prison and said that he was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her,” Mother allowed Father to watch the Children unsupervised and, until learning of his continued drug use at trial, had planned to go on living with him. Additionally, despite Father’s history with drug use, Mother “did not believe he would use drugs.” Mother’s reintroduction of Father into the Children’s lives demonstrated to the court “emphatic[ally]” that Mother showed “poor judgment and [a] continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”
¶34 The court also highlighted that during the time when Mother lived with Step-Grandmother, the Children were cared for by many different caregivers other than Mother. The court found that Grandparents were the main caregivers for GH, and the court emphasized that RH’s daily and weekly care was provided by five different caregivers located in four different cities. Mother argues that a “child is not without proper parental care solely because that care is not always at the hands of a parent” and that it is “not uncommon for parents, especially single working mothers, to place children in daycare or arrange for care with family.” In support of her argument, Mother cites In re A.B., 2021 UT App 91, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168, where we held that a child is not neglected if the child receives proper parental care, “even if not always at [a mother’s] hand.” Id. ¶ 20.
¶35 We agree with Mother that it can be completely appropriate for parents to arrange for others to help them in caring for their children, and we empathize with single parents whose childcare arrangements may not always seem ideal to others of greater means and opportunity. But Mother’s behavior in this case is distinguishable from that in In re A.B. Here, the juvenile court found, and Mother does not dispute, that Mother did “very little to make arrangements” for the Children, would drop off the Children at Sister’s “at times unannounced,” would not come home when she was expected to, and would not take care of the Children when at home. In contrast, In re A.B. concerned a child who spent summers with “welcoming relatives[,] . . . and on agreement, summer turned into a whole year.” Id. ¶ 1 (emphases added). Moreover, that mother arranged the child’s care with the relatives, id. ¶¶ 2–3, and she never refused to take care of her child when she oversaw the child’s care, id. ¶ 19. Therefore, Mother’s reliance on In re A.B. misses the mark.
¶36 Based on the foregoing, we conclude that the juvenile court’s findings of fact meet the legal standard of neglect. See Utah Code § 80-1-102(58)(a)(ii). Therefore, we affirm its grant of permanent custody and guardianship to Grandparents. See id. § 80-3-405(2)(d)(i).[7]
II. Parent-Time
¶37 Mother next argues that the juvenile court erred by failing “to even consider providing Mother parent-time in the final analysis order.” While we don’t quite agree with Mother’s characterization of the order as a complete failure to consider Mother’s residual rights, we agree that remand on this issue is necessary.
¶38 When the juvenile court vests custody of a child in someone other than the child’s natural parent, the court “shall give primary consideration to the welfare of the minor.” Utah Code § 80-3-405(2)(a)(ii)(A). Here the court did so by awarding custody to Grandparents, whom the court found to “have demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.”
¶39 But the court’s responsibilities when awarding custody do not end there. The court also “shall give due consideration to the rights of the parent or parents concerning the minor.” Id. § 80-3-405(2)(a)(ii)(B). This includes consideration of awarding reasonable parent-time. Specifically, the statute provides that “[a] parent of a minor for whom a guardian is appointed retains residual parental rights and duties.” Id. § 75-5-209(5). These residual parental rights include “the right to reasonable parent-time unless restricted by the court.” Id. § 80-1-102(70)(a)(iv). Thus, our legislature intended for juvenile courts to give careful thought to an award of parent-time when granting custody and guardianship to someone else. And we note that parent-time is significant because it offers “the parent the possibility of maintaining a meaningful relationship with the child despite lack of physical custody.” Moreno v. Board of Educ., 926 P.2d 886, 890 (Utah 1996).
¶40 Yet here, the juvenile court simply stated that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management” of Grandparents, without making any findings regarding the amount of parent-time that would be reasonable. Instead, the court delegated that determination entirely to Grandparents. And this could lead to Grandparents denying Mother any parent-time[8] without the court making any findings of fact to justify such a denial.[9] Here, we find the court’s findings and conclusions regarding parent-time to be inadequate.
¶41 A juvenile court’s factual findings “must be sufficiently detailed and include enough subsidiary facts to clearly show the evidence upon which they are grounded.” In re S.T., 928 P.2d 393, 398 (Utah Ct. App. 1996); see also In re M.G., 2003 UT App 313U, para. 5 (holding that “a review of the court’s oral findings reveals the subsidiary facts and basis for the juvenile court’s written findings and demonstrates that the written and oral findings, taken together, are sufficiently detailed to permit appellate review”). “Put another way, findings are adequate when they contain sufficient detail to permit appellate review to ensure that the [juvenile] court’s discretionary determination was rationally based. Indeed, the [juvenile] court’s obligation to render adequate findings facilitates meaningful appellate review and ensures the parties are informed of the [juvenile] court’s reasoning.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (cleaned up). “Unless the record clearly and [incontrovertibly] supports the [juvenile] court’s decision, the absence of adequate findings of fact ordinarily requires remand for more detailed findings by the [juvenile] court.” Woodward v. Fazzio, 823 P.2d 474, 478 (Utah Ct. App. 1991) (cleaned up).
¶42 We are unable to determine the court’s basis for leaving all parent-time decisions in the hands of Grandparents, a situation that potentially denies Mother any parent-time with the Children.
Accordingly, we vacate the juvenile court’s decision regarding parent-time and remand this matter for specific findings demonstrating what conditions of parent-time are reasonable. If the court determines that it is reasonable to award no parent-time to Mother, then the court must make specific findings to justify such a determination.
III. Venue
¶43 Mother brought a motion to dismiss or change venue on the morning of trial, asserting that the case had been brought in the wrong venue.[10] The juvenile court took the motion under advisement and delayed ruling on the motion until it could take evidence and determine facts relative to venue. In its dispositional order, the juvenile court determined that venue was correct in the Seventh District. Now on appeal, Mother challenges that conclusion only as to RH. Mother maintains that on the day the petition for guardianship was filed, RH was living with Mother in Salt Lake County. Even assuming, for purposes of the discussion, that venue was incorrectly determined to be in the Seventh District as to RH, we affirm the decision of the juvenile court because Mother has failed to show any harm.
¶44 The guardian ad litem’s briefing maintained that Mother needs to show harm to obtain reversal based on an erroneous denial of the motion to change venue as it pertains to RH. Mother does not quibble with this legal assertion but claims that she implicitly identified and showed harm in her principal brief. As both parties have proceeded under the assumption that an appellant must show harm, we will do likewise without deciding that discrete issue.[11] The sole harm Mother points to is that the case regarding RH would have been dismissed and that dismissal would have benefitted Mother. Mother is wrong on the first point and utterly fails to meet her burden of persuasion on the second.
¶45 First, as to automatic dismissal, this result was rejected several years ago by this court when In re adoption of B.N.A., 2018 UT App 224, 438 P.3d 10, explored the consequences of hearing a case in the wrong venue. Initially, we explained that under current precedent, subject-matter jurisdiction is not implicated when a case is filed in the wrong district. Id. ¶¶ 12–24. Then we concluded that the “consequence for filing in the wrong district is not automatic dismissal.” Id. ¶ 25. Instead, “any party, upon proper motion, may request that the case be transferred to the correct district.” Id. So, if the Mother’s motion had been granted, the case would have been transferred, not dismissed. Accordingly, the argument that harm resulted because the case would have been dismissed fails.
¶46 Second, Mother fails to identify any other harm. She merely concludes that “[d]ismissal would have benefitted Mother.” But as just explained, dismissal would not have occurred. And Mother presents no argument that she would have obtained a different result had the case been transferred. Importantly, where Mother does not challenge that the case involving GH would have remained in the Seventh District, we easily foresee that upon transfer, any other juvenile court would have likely transferred the RH case back to the Seventh District under its discretionary powers, and more particularly under rule 42 of the Utah Rules of Civil Procedure.[12] Further, Mother fails to show how the result rendered in a different venue would have been better for her. Thus, Mother fails to meet her burden of persuasion that she was harmed by the denial of her motion to change venue.
¶47 Accordingly, we see no basis to reverse the judgment of the juvenile court on the issue of venue.
CONCLUSION
¶48 We affirm the juvenile court’s determination that Mother neglected the Children and that venue was proper in the Seventh District with regard to RH. We also conclude that the juvenile court made inadequate findings regarding its parent-time award. Therefore, we vacate the court’s award of sole discretion over Mother’s parent-time to Grandparents and remand the matter for further proceedings consistent with this opinion to consider Mother’s residual parental rights when determining a reasonable award of parent-time.
[1] RH has a twin, who has lived with the maternal great-grandmother since April 2021 and is not involved in this case.
[2] Mother disputes the findings of fact only with regard to venue. But as our disposition makes clear, these factual disputes are immaterial.
[3] Although the court found that Father had “an extensive and violent criminal history, including convictions for interfering with arrests, assaults, disorderly conduct, and threats of violence,” it did not make a specific finding regarding Mother’s knowledge of his violent criminal history outside of the event in prison.
[4] When asked about how Mother was performing at work, her supervisor testified, “She is incredibly reliable. She’s one of my go-to staff . . . .”
[5] Adjudication “means a finding by the court . . . that the facts alleged in the petition have been proved.” Utah Code § 80-1102(3)(a).
[6] Utah Code section 80-1-102(58)(a) defines “neglect” as follows:
[An] action or inaction causing: (i) abandonment of a child . . . ; (ii) lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian; (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being; (iv) a child to be at risk of being neglected or abused because another child in the same home is neglected or abused; (v) abandonment of a child through an unregulated child custody transfer under Section 78B-24-203; or (vi) educational neglect.
[7] After a dispositional hearing, the juvenile court may award permanent custody and guardianship to a relative if it finds by clear and convincing evidence either abuse or neglect by the natural parent. See Utah Code §§ 80-3-402(1), -405. Mother made additional arguments that the court erred in determining that GH was abused by Father and that Mother had standing to appeal any determinations regarding Father that contributed to a finding that Mother neglected the Children. Because we affirm the juvenile court’s determination that Mother neglected the Children, we do not need to address these arguments.
[8] Mother alleges that when she has asked Grandparents for parent-time, they have refused and told her, “You have no rights.” Mother’s allegations are not part of our appellate record, however.
[9] It is possible for a juvenile court, in an appropriate case, to determine that a parent retaining residual rights is not entitled to any parent-time. But any such determination should be rare and should be supported with findings that demonstrate why it is not reasonable, for example, for the parent to have at least short periods of unsupervised or supervised parent-time.
[10] Utah law provides that “a proceeding for a minor’s case in the juvenile court shall be commenced in the court of the district in which . . . the minor is living or found.” Utah Code § 78A-6350(1)(b).
[11] Some courts that have decided this issue have held that harm must be shown. See Lamb v. Javed, 692 S.E.2d 861, 864 (Ga. Ct. App. 2010); Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). But we do not decide this issue and leave it for another day.
[12] Mother asserts that venue rights are so substantial that a denial of a motion to change venue can be grounds for an interlocutory appeal, citing Davis County v. Purdue Pharma, LP, 2020 UT 17, 463 P.3d 619. While this is true, Mother sought no interlocutory appeal here. And other courts have held that failure to immediately appeal a denial of a motion to change venue constitutes a waiver of the venue claim. See, e.g., Patterson v. Alexander & Hamilton, Inc., 844 So. 2d 412, 415 (La. Ct. App. 2003).
No matter how hard people try to argue against remarriage (or marriage, for that matter), for all but a very, very few of us the arguments aren’t true. Going through life alone is miserable.
If people didn’t care so much about how devastating a failed relationship was, they wouldn’t talk about it nearly as much as they do.
Everyone knows, deep down, that life is not lived to its fullest without marriage and family. Life’s purposes are not fully met without being a part of a marriage and family. Loving and caring marriage and family, of course (few people will argue that marriage is some kind of duty, regardless of just how dysfunctional or neglectful or abusive it is—there is a reason why we have divorce, after all).
Most people on this thread have acknowledged in one way or another that it’s in our nature to want one companionship of the opposite sex and to raise children together. “Neither is the man without the woman or the woman without the man.” (1 Corinthians 11).
People who have been burned by relationships many times, who were cheated on repeatedly and/or suffered abuse at the hands of a boyfriend or girlfriend or spouse need to know marriage and family are too important to avoid and give up out of fear of being hurt. A life well lived is not without its risks and it’s struggles. Alive will lived is one that confronts and deals with it’s struggles nobly. A good marriage can’t exist without saying “I do” first. It’s worth that leap of faith.
That’s stated, any endeavor as important as marriage cannot be entered into lightly. Not only must you be careful in your choice of spouse, but you must be good spouse material yourself. A husband and wife need to recognize that a marriage is bigger than themselves individually. It may seem like a paradox, but focusing on the good of one’s spouse and family (not pathologically, and not at the expense of your own real needs, of course) is what makes us happiest in a marriage and family.
As any attorney can do with any client, a PGAL clearly has the right to argue on a child client’s behalf, and the Utah Code makes clear that a PGAL can express a child client’s “intentions and desires” (See Utah Code Section 78A-2-705(13)(d)). Here is how I analyze the argument that PGALs state what they allege to be a child client’s intentions and/or desires:
If an attorney makes an argument pertaining to what the court’s child custody or parent-time orders should be, that argument must be based upon evidence duly admitted into the court record, or there is no evidence supporting the argument. An argument unsupported by the evidence in the record is basis for objection. An argument based upon speculation is basis for objection.
A recommendation made by a PGAL is an argument. The elements of a recommendation and an argument are the same. Without a basis of duly admitted evidence in the court record for support, a PGAL’s recommendation is without support.
Implicit in an argument are underlying facts cited to support the argument. A PGAL cannot argue that “this is the child’s desire” without citing evidence of the child’s desire. A PGAL who claims to know a child client’s intentions and desires to the court is, by definition, testifying, not arguing. To argue that we can discern a child’s intentions and/or desires from the evidence in the record still requires evidence in the record to which to cite in support of the argument. An argument cannot be a substitute for evidence. An argument is not an argument without evidentiary support.
If a PGAL bases his arguments to any degree upon his child client’s communication of the child’s intentions and desires (whether to the PGAL or to someone else), the child client must have first communicated his/her intentions and desires. If a PGAL then reports to the court those attorney-client communications on the subject of the client’s intentions, that is still either 1) hearsay or inferential hearsay or 2) the witness’s proffered testimony that entitles a party to cross-examine the witness at the very least.
If a PGAL claims to have discerned a client’s intentions and desires without having received express communication from the client as the client’s intentions and desires (such as, for example, not conversing or corresponding in writing, but instead monitoring the child’s communications with other people or observing the child’s behavior), then the PGAL would be acting as a witness.
If a PGAL is the attorney for a party to the case, then the PGAL does not get to testify for the client. And if the PGAL proffers a client’s testimony, then that testimony is subject to cross-examination.
A PGAL cannot “argue what my client wants” without there being some evidence that what the PGAL asserted “the client wants” is, in fact, what the clients want. With parties that’s fairly easy because they will have filed a pleading stating what they want. If there is any question as to whether the pleadings are not those of the party, then the party can either indicate that spontaneously or be asked to verify or deny it. With child clients of PGAL there are rarely, if ever, pleadings filed with the court(as the term is properly defined, i.e., a formal statement of a cause of action, not as the term is carelessly thrown around to mean documents filed with the court) by the children through their counsel. Even if the PGAL had somehow filed pleadings in the action AND the court recognized the children as parties to the action, their PGAL attorney cannot testify for them.
Advocacy of a PGAL client’s desires requires evidence of the child client’s desires. Evidence of the child client’s desires requires a record that the child expressed/articulated those desires; otherwise, we would find ourselves in a situation where the PGAL could literally fabricate “argument” on the basis of nonexistent evidence and get away with it clean. That is clearly not how the law and the rules of evidence apply.
In every Utah divorce case, the parties must prepare what is known as a financial declaration. The parties to a divorce action are required by the rules of court to provide each other with their financial declarations.
With rare exception, divorce litigants struggle with preparing a complete, accurate, truthful financial declaration. We prepared this video (and an accompanying blog post) to help you 1) overcome procrastination, 2) understand the purpose of each part of your financial declaration, and 3) persuade you, we hope, not to give in to the temptation to lie on your financial declaration or try to hide anything from disclosure on your financial declaration.
What is your financial declaration?
Concisely stated, your financial declaration is a document that provides information about income, assets, debts, and personal expenses.
The information in the financial declaration is used to analyze and determine questions of child support, alimony, division of marital property, and assigning responsibility for marital debts and obligations. as well as for determining an attorney’s fee or “for any other reason” (Utah Rules of Civil Procedure Rule 26.1(e)).
The specifics of what needs to be included in your financial declaration are outlined in URCP Rule 26.1. The acronym URCP means “Utah Rules of Civil Procedure,” and URCP 26.1 requires that you provide specific supporting documents with your financial declaration:
Your previous two years’ personal and business tax returns, including all the documents submitted with your tax returns and all documents used to prepare those tax returns
Pay stubs for the last 12 months before the petition for divorce was filed with the court.
Documents that verify the value of all real estate that the parties have an interest in (for example, your most recent appraisal, tax valuation, and refinance documents)
Bank statements for all financial accounts for the 3 months before the divorce was filed (this includes checking, savings, money market funds, certificates of deposit, brokerage, investment, retirement, regardless of whether the account has been closed including those held jointly, in your name, or as a trustee or guardian, or on someone’s behalf).
We also suggest that you provide documentation of your personal expenses going as far back as you can. If you don’t have this documentation, start compiling it.
Is there a way to be exempt from preparing and producing a financial declaration?
No. We will not discuss this topic again. You must prepare a financial declaration, and you must prepare it within the time limits you are given to prepare it. You must give your spouse a copy of it. There is no way around it. If you refuse to provide a financial declaration, the court can and almost surely will sanction you severely. Here is what Rule 26.1 provides on that subject:
(f) Sanctions. Failure to fully disclose all assets and income in the Financial Declaration and attachments may subject the non-disclosing party to sanctions under Rule 37 including an award of non-disclosed assets to the other party, attorney’s fees or other sanctions deemed appropriate by the court.
(g) Failure to comply. Failure of a party to comply with this rule does not preclude any other party from obtaining a default judgment, proceeding with the case, or seeking other relief from the court.
Do I have to give the court a copy of my financial declaration? Why?
You may be required to file a copy of your financial declaration with the court if 1) a hearing is scheduled on the subject of child support, spousal support, division of property, allocation of responsibility for debts, attorney fees awards and court costs, or 2) the court has ordered you to file it.
Do I have to give my spouse a copy of my financial declaration? Why?
Yes, you do need to give your spouse a copy of your financial declaration. It is required by court rules. Rule 26.1(c), to be exact.
But the better question is why wouldn’t you give your spouse a copy of your financial declaration? Exchanging financial declarations with your spouse is a way of keeping both parties honest about income, assets, debts and obligations, and personal expenses.
There is an element of wounded pride and embarrassment associated with close examination of the details of a person’s finances. Being honest and pushing your pride aside is hard but is still better than misrepresenting or hiding your financial state.
What will happen if I do not prepare and provide my spouse (and the court, when necessary or when ordered to do so) a financial declaration?
See paragraph 2 above.
And your attorney will likely withdraw as your counsel.
You could be sanctioned for contempt of court. This can lead to fines, penalties, or even jail time.
You could lose your rights and entitlements you would otherwise deserve when it comes to division of marital property, responsibility for marital debts and obligations, and the spousal support and child support awards.
6. Isn’t a financial declaration just busy work?
I hope that by now you can see that a financial declaration is plainly not busy work.
A clear, accurate, and complete financial declaration is one of the best ways to establish your honesty, character, and credibility overall.
A clear, accurate, and complete financial declaration is necessary to help you understand the reality of your financial situation now and what it will likely be post-divorce.
We get it. Taking a hard, honest look at your financials is scary and discouraging. But burying your head in the sand does you no good. Face up to it and get it done.
I do not see the point of a financial declaration (you are lying; of course you see the point of a financial declaration).
“Hey,” you may think, “I have a smart and original idea: I will lie on my financial declaration.” This is neither original nor smart.
You are not the first and will not be the last person to believe that they can lie to your attorney, to the court and to your spouse and to your spouse’s attorney. People have been lying to the courts from the beginning. Sometimes it works. The odds, however, are against you.
The moral thing to do is to tell the truth.
If doing the right thing is not reason enough to be honest and forthright, then remember you are not as good a liar as you think, and you will be caught in your lies.
Do you really believe that you are smarter than the opposing counsel, your attorney, and the court individually or combined? You can fool some of the people all of the time, all of the people some of the time, but you can’t fool all of the people all of the time.
Lying can get you some big benefits if you get away with it. However, if you are caught lying, you will lose. The court can hold you in contempt, and even strike your pleadings outright and award default judgment to your spouse. If your main worry is your money, then you should disclose it. Getting caught in a lie or worse, lying under oath is usually more costly than being honest and forthcoming.
Courts have seen liars lying on financial declarations forever. There is nothing new under the sun.
Unless your lawyer is a crook, if you insist on lying on your financial declaration, your lawyer will be required to drop you as a client.
OK, so you’re now convinced there is no escaping the preparation of your complete and accurate financial declaration. How do I prepare my best financial declaration? Great question. Let’s start answering it by first addressing the wrong way to prepare a financial declaration.
The wrong way to prepare your financial declaration
Guessing or estimating without 1) making it clear on your financial declaration form that you were making an estimate, and 2) making the most accurate guess/estimate you can and explaining the bases for your estimate.
Your spouse isn’t likely to cut you some slack if you guess or estimate incorrectly. No, instead your spouse will accuse you of lying. Don’t make wild guesses. Don’t make estimates without making it clear that your estimate is an estimate, not an unquestionable fact.
Sloppy guessing and estimating makes you look dishonest and/or ignorant. Courts don’t listen to liars and fools or take them seriously.
Falsely claiming that you “don’t remember” and that you cannot find documents.
This is lying, and it doesn’t fool anyone. Anyone may honestly forget or misremember a few details. Sometimes documents get lost. It’s only human. But conveniently claiming “I don’t recall” and “I can’t find it” in response to crucial questions? Come on. You cannot even lie persuasively to yourself like that.
Claiming you can’t find documents doesn’t mean your spouse or your spouse’s lawyer can’t find them through other means.
The right way to prepare your financial declaration.
The right way to fill out a financial declaration is to be as honest and thorough as possible to provide as complete and accurate a financial declaration as possible. Yes, it may hurt or embarrass you to be so honest about your financial situation, but it hurts worse to lie and be sloppy.
Do the necessary work. You can’t skip steps and take shortcuts and turn out a complete and accurate financial declaration. If you think you are an exception, you’re lying to yourself.
Don’t procrastinate. You cannot prepare a good financial declaration by waiting until the last minute. Procrastination does more damage to your ability to prepare a good financial declaration than any other bad habit. Procrastination needlessly and inexcusably makes it sadly and much harder to prepare your financial declaration.
Conquer procrastination. Conquer it by:
1) committing to complete 3 pages per day, Monday, Tuesday, Wednesday, Thursday, and Friday. There are about 14 pages in a financial declaration form. Your attorney can prepare the first 2 pages for you. That leaves 11-12 pages you need to fill out yourself. If you complete 3 pages per day (and leave yourself an extra day or two to compensate for interruptions or snags you encounter along the way), you’ll have it done—and done well—in 5 days.
2) compiling your supporting documents. Start now. Make sure you contact your banks, credit unions, and other financial institutions, HR and/or payroll department, retirement benefits administrator, and credit card companies to get the documents you need to attach to your financial declaration:
Tax returns for the last two years
Pay stubs or other proof of income for the 12 months before the petition was filed
Loan applications for the 12 months before the petition was filed
Real estate documents. Deed, most recent appraisal, tax valuation, and refinance documents (if any).
Financial statements for the 3 months before the petition was filed. This includes, but is not limited to:
checking
savings
credit cards
money transfer apps
money market funds
certificates of deposit
brokerage
investment
retirement
It can take several days for the documents to be emailed or mailed to you, so contact the sources and request them now. Don’t be afraid to follow up if you haven’t received them by the time the sources estimate or promise you’ll have them.
Garbage in, garbage out. If you wait until the last minute to prepare your financial declaration, odds are your financial declaration will be mediocre, and a mediocre financial declaration is dangerous. Frankly, if you prepare a half-baked financial declaration, you deserve the natural consequences of poor preparation.
iii. Work in and for your best interest.
Do the work. Do it consistently. Do it on time. There is no other way to do it right.
You cannot foist the preparation of a solid financial declaration on your attorney and his assistants. Really, you can’t. Don’t try. It won’t work. It cannot work.
Your attorney and his assistants cannot do it for you. It is impossible. There is information and there are supporting documents only you can provide.
Your attorney and his assistants do not know more about your financial situation than you do.
iii. Your attorney is there to help you get your financial declaration in ship shape, but you have to do the work and supply information and documents that only you can provide before your attorney can be of any help to you.
There is no loophole. There is no magic wand. You will have to do the work and do it consistently in order to put your best foot forward. Time wasted or squandered cannot be recovered.
Explaining each part of the financial declaration and what the court and the opposing party use it for:
Paragraph 1. Statement of whether you are filing a copy of your financial declaration with the court. This paragraph is fairly self-explanatory. Unless there is a hearing on the subject of alimony, child support, or attorney’s fees awards scheduled, or unless the court has ordered you to file your financial declaration with the court, you don’t file your financial declaration with the court.
Paragraph 2. The documents supporting your financial declaration. Your tax returns, pay stubs, loan applications, real estate documents, and financial statements verify the information you provide in the other paragraphs in your financial declaration.
Paragraph 3. Employment. You identify whether you are employed, and if you are, who your employer or employers are, how you are compensated, how often you are paid, and how much you are paid.
Paragraph 4. Gross Monthly Income. You identify all sources of your pre-tax income, whether earned or unearned, and how much you receive on a monthly basis from each income source. If you don’t receive income on a monthly basis, then you identify what the average annualized monthly amount is.
Paragraph 5. Monthly tax deductions. You identify what taxes are deducted from your gross monthly income and how much is deducted.
Paragraph 6. After Tax Income. This paragraph is fairly self-explanatory. In this paragraph you state what your net income is after you deduct the taxes withheld from your gross monthly income.
Paragraph 7. Monthly Expenses. This paragraph is fairly self-explanatory. Here you identify what your monthly personal expenses are. If you have separated and your expenses have changed since separation, then you identify the differences between your “Current” monthly personal expenses and what your previous “Marital” monthly personal expenses are.
You don’t simply state your personal expenses in paragraph 7. You need to be able to verify and justify them too. To do that, you need to provide receipts documenting these expenses as real.
Providing receipts establishes your credibility. They demonstrate that you are transparent and honest about your financial situation. Providing receipts establishes accuracy. They ensure that you do not overstate or understate your financial obligations and they prevent the court from dismissing your personal expense claims as false or inflated. Providing receipts provide context and explanations for specific expenditures.
Paragraph 8. Business Interests. A business could be a marital asset that has value to be divided in divorce. Or it could be separate property. This is why you provide the information about your business interests, who owns the business interests, and the value of business assets.
Paragraph 9. Financial Assets. This is where you identify where your money is kept, as well as information on other financial assets such as stocks and bonds, insurance policies, and retirement accounts.
Paragraph 10. Real Estate. This is where you identify your interests in real estate, such as the marital home, vacation property, rental properties, or other interests in real estate.
Paragraph 11. Personal Property. In this paragraph you identify the personal property that you own, whether you acquired it before marriage or during the marriage. Must you list every shirt and sock you own, every knife, fork, and spoon? No. A fair rule of thumb for what to list in paragraph 11 is that anything valued around $500 or more goes on the list. You can identify things worth less if you want or if you feel it is important, of course.
Paragraph 12. Debts Owed. In this paragraph you identify both your separate and marital debts and obligations. The type of debt, the account number (if applicable), who the debtors are, the balance owed on the debt, and what the minimum monthly payment is (if applicable).
Supporting documents for your financial declaration must be in PDF format.
The court will not accept documents in any form other than PDF, so all supporting documents must be in PDF form. Here are ways to scan and save documents as PDFs:
Scanner with built-in PDF-creation functionality. Most scanners come with built-in PDF-creation functionality, so you can scan a document and automatically save it in PDF format.
All-in-one multifunction machines: All-in-one machines often have scanning capabilities that allow you to scan documents to PDF files.
Smartphone Apps: There are several smartphone apps that enable you to convert a photograph of a document into PDF format. This is, however, the worst option of all the others. Scanning from a smartphone is time consuming, results in the lowest quality images, and makes it hard to scan multi-page documents. Use your own scanner or have someone else scan your documents into PDF format. You and your lawyer will be glad you did.
Once you gather your supporting documents together, save complete and legible copies of them in PDF format and then email them to your attorney to serve or file them with your financial declaration.
Thank you for watching. Thank you for reading. You’re better for having done so. Because you are now better educated and better prepared to complete your financial declaration fully, accurately, and on time. We hope that watching this video and reading the associated blog post has not only impressed upon you the importance of your financial declaration but has demystified what your financial declaration is and the purposes it serves. We hope you are better prepared and more confident going forward.
Utah Family Law, LC | divorceutah.com | 801-466-9277
JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
TENNEY, Judge:
¶1 Mother and Father separated in 2015 and were divorced in 2018. They had two children during their marriage—D.M. and H.M. (collectively, the Children). From 2015 until 2020, Mother repeatedly told state authorities that Father had physically and sexually abused the Children. In several instances, Mother prompted the Children to make allegations against Father too.
Although authorities investigated the reports, none of the investigations resulted in a finding that Father had abused the Children. Also, on two occasions in 2020, Mother absconded with the Children during times in which she did not have custody. Both times, law enforcement was involved in locating and returning the Children to Father’s custody.
¶2 After Mother encouraged one of the Children to file a new report of abuse against Father in January 2022, the Division of Child and Family Services (DCFS) filed a petition to terminate Mother’s parental rights. At the close of a several-day trial, the juvenile court issued an order finding that Mother “cannot stop her destructive behavior” of making “false allegations” against Father. The court then terminated Mother’s parental rights.
¶3 Mother now appeals the termination decision. For the reasons set forth below, we affirm.
BACKGROUND
¶4 Mother and Father had two children during their marriage: D.M., who was born in 2012, and H.M., who was born in late 2014. Mother and Father separated in 2015 when H.M. was approximately three months old, and their divorce was finalized in 2018. Mother subsequently married another man (Stepfather).
Allegations of Abuse from 2015 Through 2020[1]
¶5 The reports of abuse began in February 2015, when DCFS received a referral alleging that during the marriage between Mother and Father, Father would “throw things, but not at [Mother], and punch holes in the doors.” DCFS chose not to accept this referral as a basis for action. In June 2015, DCFS received a referral alleging that Father views pornography “including teenaged girls.” This referral was unaccepted because there were no allegations that the Children were being abused or neglected.
¶6 In May 2016, DCFS received a referral alleging that after D.M. came back from parent-time with Father, he would not sit down because “his bottom hurt” and his anus was “red and inflamed.” The referral was not accepted because D.M. did not make any disclosure that any abuse had occurred. In September 2016, DCFS received a referral alleging that the Children had returned from parent-time with Father with black eyes and that Father commonly yelled at the Children, which allegedly made D.M. fearful to get out of bed to use the bathroom at night. The referral was unaccepted because the Children did not report any injuries from Father or provide specific details about what Father was saying to the Children.
¶7 In early October 2016, DCFS received a referral alleging that the Children were being physically abused by Father and that H.M. had been sexually abused by Father. The referral was accompanied by photographs of a bruise on H.M.’s leg. When a DCFS worker interviewed D.M. about these allegations, D.M. reported that Father had pushed him into a “monkey bag,” but D.M. couldn’t explain what a “monkey bag” was. D.M. made no disclosures of sexual abuse.
¶8 In late October 2016, Mother contacted law enforcement and reported that H.M. had complained of his “bum hurting” after returning from parent-time with Father. Mother also said that she changed H.M.’s diaper and that there was blood present and that she had also observed tearing on his anus. Mother told law enforcement that H.M. had said that Father put his finger “in there.” DCFS interviewed H.M. the following day. During that interview, H.M. said that he had been “hurt” at “daddy’s house,” but he made no other disclosures. Shortly thereafter, H.M. underwent a physical examination at the Children’s Justice Center (the CJC), but no evidence of sexual or physical abuse was discovered during this examination.
¶9 In September 2017, DCFS received a referral alleging that D.M. had been physically abused by his paternal grandfather. When DCFS interviewed D.M., D.M. said that “grandpa pushed him backwards and he fell on the rocks, because he didn’t hear grandpa.” When the grandfather was then interviewed, he acknowledged that he had accidentally knocked D.M. over during a recent visit when moving him away from something.
¶10 In June 2018, DCFS received a referral alleging that during a parent-time exchange, Mother had pulled Father’s beard and kicked him and that Father had ripped out one of Mother’s hair extensions. This case was not accepted.
¶11 In November 2018, DCFS received a referral alleging that Father attempted to hit Mother with his car and that Father had threatened to kill Mother by loosening the screws on her car. While investigating this referral, DCFS interviewed both of the Children. H.M. reported that he gets “hurt” at “all of my parents’ houses,” that his parents get frustrated with each other, and that Father punches Mother. D.M. reported that his parents are “always fighting.”
¶12 In December 2018, March 2019, and April 2019, Father made reports against Mother suggesting that she was using illegal drugs and wasn’t taking proper care of the Children. None of the referrals were accepted.
¶13 In April 2019, DCFS received a referral alleging that the Children had been “sodomized” by both Father and the paternal grandfather during visits with Father and that the paternal grandmother was aware of the abuse but not intervening. The referral also alleged that Father had punched D.M. in the stomach and testicles. As part of an investigation into these allegations, both of the Children were interviewed at the CJC. Though somewhat unclear, the record suggests that D.M. said nothing about abuse in his interview. H.M., however, said that his “old dad” is “going to be in the car when it explodes” “because he was mean to me.” H.M. also said that Father “put his penis in my bum” and “spanks [my] bum.” H.M. said that Father did the same thing to his cousins and that Mother told him this. When the interviewer spoke to Mother about what the Children had said, Mother asked the interviewer to talk to D.M. again, which the interviewer declined to do. During this investigation, Mother was “jittery and unable to finish sentences.”
¶14 In May 2019, Mother sought a protective order against Father. The protective order request was later denied. Around this same time, Mother informed DCFS that H.M. had bloody stools and that H.M. had reported that Father had “punched and kicked him.” Later that month, DCFS received information that H.M. had allegedly said Father “peed in his butt.” Father denied all allegations when interviewed by a detective from the Smithfield City Police Department.
¶15 In June 2019, DCFS received another referral alleging that the Children were being physically, sexually, and emotionally abused by Father. DCFS visited with the Children and observed no suspicious bruises. DCFS also found the accusations of physical abuse to be without merit. As part of this investigation, a DCFS caseworker and a Smithfield City Police Department detective interviewed Mother. During this interview, Mother alleged that the Children had told her that they “are being raped” and “punched in the crotch” by Father.
¶16 On July 1, 2019, Mother brought the Children to the CJC for an interview. At the outset of H.M.’s interview, and before the DCFS interviewer had even finished explaining the nature of the interview to him, H.M. said, “Well, my dad puts his penis in my bum.” H.M. said that Mother was present when this occurred, and that Father, paternal grandfather, and paternal grandmother “did it.” H.M. further reported that Father punches him with a “real hammer that is metal and black.” H.M. also reported that Father punches him in the penis and “punches me with his butt.” When asked what he saw when Father put his penis in his bottom, H.M. said, “That’s all I needed to tell you. I didn’t see anything.” When asked again what he saw, H.M. responded, “That’s all I have to tell you.” D.M. was also interviewed at the CJC that day. D.M. responded “nothing” and “I don’t know” to the majority of the interviewer’s questions. He also said that “nothing happened” at Father’s house and that “nothing happened to his brother that hurt him.” In addition, D.M. told the interviewer that Mother would talk to H.M. about events that happened at Father’s house. After finishing the interviews with the Children, the interviewer and a Smithfield City Police Department detective interviewed Mother. They encouraged Mother “not to press” the Children “for information and not to question them.”
¶17 Later that month, Mother contacted law enforcement during a parent-time exchange with Father. Mother told law enforcement that the Children wanted to share “their concerns” regarding Father. The Children spoke to law enforcement, and nothing further was reported to DCFS.
¶18 On February 21, 2020, DCFS received another referral alleging that the Children were being physically, sexually, and emotionally abused by Father. This referral alleged that Father had threatened to kill the Children and Mother if the Children reported the abuse. The referral further alleged that, within the past few days, Father had touched the Children’s genitals and “‘go[ne] inside’ their bums.” The referral also alleged that Father would give D.M. medicine to induce vomiting when D.M. would make a mistake on his homework and that Father would not allow the Children to use the bathroom in the middle of the night.
¶19 While investigating this latest referral, a DCFS investigator met with Father and the Children at Father’s home. Father denied each allegation. The DCFS investigator also observed that the Children interacted with her appropriately, appeared happy and healthy, and had no marks or bruises. During this investigation, DCFS came to believe that the Children were being emotionally abused by Mother.
¶20 On February 25, 2020, DCFS received a report that Father takes the Children to “drinking parties,” that Father stalks Mother and Stepfather, and that Father “rapes” the Children. The Smithfield City Police Department conducted a welfare check but failed to find any support for the allegations or anything out of the ordinary with the Children. At this point, the Smithfield City Police Department informed DCFS that it would no longer conduct welfare checks on the Children “because of the number of reports made and lack of findings of concern.”
¶21 DCFS interviewed the Children again at the CJC on March 2, 2020. H.M. reported that Father and neighbors put cameras outside his house and that the “cameras are made from poisonous stuff that make[s] people go crazy and rip kids’ heads off.” H.M. said that the cameras have speakers to “do bad stuff to [Mother].” H.M. denied having ever been hurt and denied that anyone told him what to say at the interview. In his interview, D.M. reported that he didn’t “remember if anything has happened to him” and that there was “nothing he needs to talk about” happening at either parent’s house. D.M. also stated that no one told him what to say at the interview.
¶22 On March 20, 2020, Mother obtained an ex parte protective order against Father. A few days later, DCFS received a report alleging that Father had been sexually inappropriate in front of the Children, that Father had raped Mother in the presence of the Children, and that Father had been telling the Children that there are cameras at Mother’s house watching them. Father denied these allegations.
¶23 On March 26, 2020, the court held a hearing on the ex parte protective order. Less than an hour before it began, Mother texted a DCFS employee and alleged that the Children wanted to tell her about abuse from Father. Mother then brought a recording of the Children alleging sexual abuse by Father to the court hearing, so the hearing was continued. At a hearing that was held on April 30, the court ordered that despite Mother’s allegations, Father could resume his previously ordered parent-time.
¶24 A few days later, Mother refused to bring the Children to the exchange point, telling law enforcement that she believed the Children were in danger. That same day, the Children were interviewed at a DCFS office. Without prompting, and without waiting for the interviewer to explain what the interview would be about, H.M. said that Father had “choked him, peed in his mouth, and put his penis in his bum and it bled, and that [H.M.’s] neck was broken.” H.M. said that these things all occurred in the middle of church and that “they” were wearing church clothes when it all happened. When asked for more detail, H.M. said, “that’s all I said, that’s all I needed to tell you about,” and he continued to reply “that’s all” and “that’s all he did” to further questions. H.M. then became emotional and visibly upset, and when asked why, H.M. responded, “[B]ecause that’s what I needed to say to you!” When asked if someone had told him what to say, H.M. said that he and Mother had “talked on the iPad about it.”
¶25 When Mother was asked about H.M.’s statements later that day, Mother claimed that H.M. must have been referring to the recorded disclosure he had previously made and which Mother had previously brought to court. Following the interview, Mother asked DCFS if she still needed to send the Children to Father for parent-time the following day. DCFS informed Mother that there was not enough information to support the allegations and that it was not recommending any adjustment to parent-time.
¶26 On May 3, 2020, law enforcement was called to conduct a welfare check at Mother’s home after she reported that she was afraid Father was going to come shoot her and the Children. A week later, DCFS received a report that Father had been unable to retrieve the Children for his parent-time. Law enforcement soon learned from the maternal grandfather that Mother and the Children were staying at a local hotel, but he would not disclose its location. On May 9, 2020, Mother brought the Children to the Bountiful City Police Department to demonstrate to law enforcement that the Children were physically safe.
¶27 On May 11, 2020, Mother called law enforcement in Tooele to report that the Children’s paternal aunt and uncle were sexually and physically abusing the Children. The next day, DCFS received an additional report that Mother had told law enforcement in Layton that the Children had been sexually abused by Father and were being victimized by a sex trafficking ring. Law enforcement stated that Mother was speaking rapidly and that the conversation “went in circles.” Law enforcement was concerned that Mother was under the influence of a substance or was suffering from a mental illness. H.M. also called law enforcement that day and reported that he had been abused.
¶28 On May 14, 2020, Father obtained a writ of assistance, authorizing the help of law enforcement to retrieve the Children from Mother. Mother refused to cooperate with this order, so Father received a second writ of assistance on May 21, 2020, authorizing law enforcement to locate Mother through cell phone tracking. The Children were eventually recovered from a hotel by law enforcement.
Protective Supervision Services Case
¶29 On May 26, 2020, the State filed an expedited verified petition for protective supervision with the juvenile court. The State requested that the Children remain in Father’s custody, with DCFS providing protective supervision services. In June 2020, the juvenile court ordered DCFS to supervise the Children’s visits with Mother moving forward.
¶30 During a supervised visit at a DCFS office on July 2, 2020, Mother, Stepfather, and a step-grandfather took the Children and left the building. H.M. cried, yelled, and became upset when the step-grandfather picked him up and carried him out. Mother and the others left with the Children despite DCFS employees telling Mother that law enforcement would be called. Law enforcement soon located Mother, Stepfather, the step-grandfather, and the Children in a nearby canyon and, pursuant to a warrant, returned the Children to Father.
¶31 On July 13, 2020, the juvenile court found that Mother had neglected the Children by attempting to alienate them from Father and by making repeated reports that Father had abused the Children. The court ordered the Children to remain in Father’s custody, and it further ordered that Mother’s visits must be supervised by a professional visit supervisor and a security guard. The court also ordered Mother and Stepfather to participate in psychological evaluations and receive treatment. Mother and Stepfather subsequently participated in the ordered psychological evaluations and participated in follow-up treatment with a psychologist specializing in high-conflict custody cases. The evaluating psychologist concluded that Mother “is stuck in her narrative about what has transpired with the Children” and that she “lacks insight into her own behaviors.”
¶32 The Children began receiving therapy from a trauma therapist (Therapist). Therapist initially diagnosed both of the Children with an acute stress disorder, though she later modified the diagnoses to post-traumatic stress disorder. Therapist opined that the Children had suffered cumulative and complex trauma because of Mother’s actions, and Therapist noted that their symptoms included intrusive thoughts, negative moods, sleep disturbances, irritable behavior, angry outbursts, and physical aggression. In an August 2020 letter to the court, Therapist said that both Children, and more particularly H.M., had expressed fear of being “stole[n]” by Mother again and of having the police “chase [them] down.” Therapist also described D.M.’s stress related to the May 2020 hotel stay.
¶33 As noted, Mother began having supervised visits with Children in July 2020. DCFS’s progress notes indicate that Mother asked “some inappropriate questions during the visits,” e.g., that she had asked the Children “multiple times if they are ok or if there is anything wrong” and that Mother also questioned the Children about “where they live, who lives with them, and if anyone is telling them not to tell her things.” Although Mother had been told several times not to talk to the Children about the case, Mother asked the Children in September 2020 “if they could tell someone about the things they told her and the things she said were not crazy,” and that if they did, “they could go home with her because ‘they think that I’m lying.’” When the supervising DCFS caseworker (Lead Caseworker) told Mother not to talk about these things with the Children, Mother became defensive and told Lead Caseworker to “back off.”
¶34 Mother’s supervised visits began proceeding without serious incident, though, and in March 2021, the juvenile court removed the requirement that a security guard be present. The court also ruled that the Children could have visits in Mother’s home if Mother provided a minimum of three negative drug tests and was in compliance with all other provisions from a Child and Family Plan. In April 2021, Therapist noted that D.M. had said that he had “mixed up feelings” about the possibility of staying at Mother’s home. D.M. said that he wanted to “stay overnight at [his] mom’s house,” but he was “scared” that she would “ask questions about [him] getting hurt” and felt like he had “to answer those things she asks.” Therapist also noted that D.M. felt pressured by Mother to say that “bad things” had happened at Father’s house. Therapist noted that D.M. feels like he “disappoint[ed]” Mother if he told her that he was safe at Father’s house.
¶35 In May 2021 and again in July 2021, the juvenile court increased the length of Mother’s visits with the Children. In September 2021, the court began allowing unsupervised visits at Mother’s home. In October 2021, however, the Children told DCFS that Mother “was starting to ask questions” about Father’s “house like before and they [didn’t] like it when” she did that. In November 2021, the Children reported to DCFS that “the visits have been going well” and that Mother “hasn’t asked them questions about [Father’s] house anymore.”
¶36 At a December 8, 2021, review hearing, the Guardian Ad Litem (the GAL) recommended closing the protective supervision services case due to the substantial completion of services provided to Mother and Stepfather. At the close of the hearing, Father was awarded primary custody of the Children, and the juvenile court ordered the Children to be released from the protective supervision of DCFS. The case was then closed.
Mother’s Allegations Against Father Resume
¶37 Less than a month after the protective supervision case was closed, a series of events occurred in rapid succession that again involved Mother implicating Father in alleged abuse.
¶38 On January 3, 2022, D.M. reported to a school counselor that Father was hitting him. D.M. was unable to provide any further context or detail about the alleged abuse. On January 4, DCFS received a referral that Mother was acting erratically and had perhaps used methamphetamine. That same day, Mother refused to return the Children to Father following a mid-week visit. On January 5, DCFS received a referral alleging that Father “may have” physically abused D.M. On January 6, Mother attempted to take the Children from their school, even though that day was not hers under the parent-time schedule. Law enforcement was called, and in the presence of both the Children and other school children, Mother accused Father of attempting to kidnap the Children. The Children went home with Father.
¶39 On January 10, D.M. was interviewed at the CJC. During the interview, DCFS received an additional report that Father was physically abusing D.M. and sexually abusing him by putting “his private parts in [D.M.’s] private parts.” When the interviewer asked D.M. about this information, D.M. stated that Father “hits [him], spanks [him], chokes [him], and hurts [him],” but he denied that Father had done anything else to his body. When D.M. was asked why he decided to talk about these things that day, D.M. stated he “wanted to get it out” and was “too scared to talk about it before.” H.M. was also interviewed at the CJC that day, but he said nothing about any abuse.
¶40 That same day, DCFS learned that the Cache County Sheriff’s Office had just received a letter that was written by D.M. in which D.M. alleged that Father had physically and sexually abused D.M. and H.M. When a detective spoke with Mother that day, Mother told him that she had “no idea” that D.M. had written the letter. On January 11, D.M. was interviewed at his school regarding the letter by a detective (Detective). D.M. said that “nobody knows about the letter” and that he had ridden his bike to drop it off in a mailbox. When asked for further details, D.M. responded, “I don’t know” and “I don’t remember.” D.M. also said that he “knew” the address for the sheriff’s office and that he had run a Google search and used YouTube on his tablet to learn how to send a letter.
¶41 Detective obtained a search warrant allowing him to examine the tablets used in Mother and Stepfather’s home. Pursuant to this search, Detective found no evidence of any searches like those described by D.M. But Detective did learn that Mother had searched “when does Sheriff read the mail” on January 10, 2022.
¶42 After obtaining this evidence, Detective interviewed Mother again at the sheriff’s office. Mother now acknowledged that she had taught D.M. how to “write this letter.” She also admitted to having looked up the address of the sheriff’s office and having taken D.M. to the post office to mail the letter. Mother then said that D.M. had told her that Father has “hit, choked, and sodomized” him and that H.M. had said that the first time Father “sodomized him” was when he was three years old. Mother said that H.M. couldn’t sit down because it hurt and that “something came out of his butt when he went to the bathroom.” Mother said she was having his underwear “tested for DNA” “in Florida,” but she refused to give Detective any more information about the alleged DNA testing. Mother said that she “knows this stuff is true” and that the Children were being “put back with” a “pedophile.”
¶43 On January 12, D.M. was again interviewed at school, this time by Lead Caseworker. D.M. began crying and stated that Mother “made me write that letter.” D.M. said that the “choking, the spanking and the hitting” “didn’t really happen” and that Mother had instructed him to write a letter about “something bad about” Father and “all the mean stuff she thinks has happened” to D.M. He said that he did not ride his bike to the post office but that Mother had helped him address the envelope and had then driven him there. Lead Caseworker also interviewed H.M. at school that day. H.M. reported that Mother “forced” D.M. to write a letter to the police because Mother “is trying to get dad arrested” “so they can live with her forever.” At trial, Therapist testified that both Children told her the same things about the events surrounding this letter and that both Children had also told her that as they were mailing the letter, Mother exclaimed, “This is a day we will celebrate every year.”
Termination Proceedings
¶44 DCFS sought protective supervision services for the Children on January 19, 2022. In February 2022, DCFS filed a petition for the termination of Mother’s parental rights.
¶45 The Children soon resumed regular therapy with Therapist. Therapist later testified that “D.M. came in very tearful, very confused. He had been through four to five interviews” in one week and was “wrestling with himself because he had lied during some of them because he felt like that was the right thing to do for” Mother. Therapist testified that D.M. was “having a lot of shame towards himself” and that D.M. told her that he felt like he had “to say that these things have happened in order to make [Mother] happy.” Therapist said that H.M. told her that he was “tired of all the asking stuff with [Mother].”
¶46 From January 2022 through the termination trial in July 2022, Mother was only allowed to have supervised visits with the Children. Therapist later testified that H.M. was initially “very, very vocal about not wanting to do the visits.” H.M. told Therapist that Mother “just—she comes at me and comes at me. I don’t want to go. I don’t want to deal with it.” After a March 2022 visit, H.M. reported to Therapist that he “didn’t like it and it didn’t feel safe.” H.M. said that “it sort of made [his] stomach hurt and like maybe she was going to take [him] again.”
¶47 Lead Caseworker later affirmed Therapist’s view that H.M. was initially hesitant to have visits with Mother after the January 2022 incidents. She subsequently testified that H.M. refused to attend one visit with Mother and that when he had visits with Mother early on, he was “emotionally dysregulated.” But Lead Caseworker also testified that H.M. eventually warmed up to the visits and that by the time of trial, he would sit in Mother’s lap and hug her. Lead Caseworker testified that D.M. was “very good” with Mother and that they “like to play together.”
¶48 The GAL was still concerned, though, and requested that Mother’s supervised visits be suspended. The court held a hearing in May 2022 to consider this request. At the close of the hearing, the juvenile court found that there was “no evidence whatsoever of any harm or trauma being caused to D.M. from the visits with [Mother] that have occurred subsequent” to January 2022 and that “[s]upervised visitation is in the best interest of the Children.” The court emphasized that it intended “for the visits between the Children and [Mother] to occur, regardless of whether the Children want to go or not.” Shortly before trial, D.M. indicated that he wanted visits with Mother to “last longer,” and H.M. indicated that he wanted the visits to be at Mother’s house.
Trial
¶49 In July 2022, the juvenile court held a four-day trial on DCFS’s petition to terminate Mother’s parental rights. The court heard testimony from 17 witnesses, including numerous professionals.
¶50 The State called Mother as a witness on the first day of trial. During her testimony, Mother claimed that she hadn’t personally seen the letter that D.M. wrote to the sheriff in January 2022 and that she was now seeing it in court for “the first time”; Mother also claimed that she didn’t know what its contents were. But the State introduced evidence showing that Mother’s assertions about the letter were not true. For example, the State introduced a video of Mother’s interview at the sheriff’s office, and this video showed Mother reading the letter. The State also introduced an email that Mother had written to her father (the Children’s maternal grandfather) after the incident that showed that she was aware of the letter’s contents.
¶51 As for the long-term allegations of abuse that had been made against Father, Mother testified twice that she didn’t know if Father had actually abused the Children. And with respect to the allegations she’d made against Father, Mother testified that she had “followed the rules” and that she had “made sure” she didn’t talk to the Children about their disclosures to authorities.
¶52 Lead Caseworker testified at trial. She testified that the Children had been traumatized by “the fear of them being taken,” noting that H.M. has “dreams about a commander coming into a hotel room,” which Lead Caseworker linked to the incident in 2020 in which law enforcement retrieved the Children from the hotel. Lead Caseworker also testified that DCFS sought termination of parental rights instead of another round of protective supervised services because DCFS had “exhausted all options.” She said that while Mother “in her own testimony has said that she learned a lot [from the protective supervision services case] and that she . . . knew at the time what to do in that situation,” Lead Caseworker didn’t “know what more we could provide.”
¶53 Therapist testified at trial too. According to Therapist, when she began seeing the Children in January 2022, the Children “expressed a fear” about “what possibly may happen again,” wondered if Mother “would take [them] again,” and asked whether they would “have to go to the hotel again.” When Therapist was asked whether she thought there was “anything less significant than the complete termination of [Mother’s] rights that can adequately protect these Children,” she responded, “if we look at adequate protection coupled with normalcy, the answer to that is no.” Therapist further testified that her recommendation for terminating Mother’s parental rights “was based on the cumulative therapy [she] had done with the [Children] in the last few years” and that she thought that termination was in “their emotional best interest.” Therapist testified that H.M.’s “exact words” to her were, “How would you feel if this were always happening to you? I just want a normal life.” When she was asked how Mother could be stopped from continuing to traumatize the Children, Therapist testified, “We stop the interaction.” She also testified that although DCFS “may have talked about the possibility of supervised visitation,” “that’s not really along the normal, natural developmental means, and so I didn’t feel like that was the best option.”
¶54 In the GAL’s closing argument, she emphasized that “[c]ontact that isn’t highly structured and supervised, holding [Mother] accountable, results in trauma to these Children. They’ve expressed discomfort about the idea of being in [Mother’s] presence without a protective third party present.” The GAL further asserted that Mother “cannot be trusted to follow a court order. She cannot be trusted to act in the best interest of her children. Supervising visits for the rest of these Children’s childhood is not feasible, it’s not in their best interest, it’s not appropriate. Nothing less than termination of this relationship can adequately protect these Children now and into the long term.”
¶55 After the GAL’s closing argument concluded, Mother’s counsel asserted in her own closing argument that “[t]o presume that—first of all, that there’s no other choice but termination in this case, I don’t think it’s a reasonable position.” Mother’s counsel argued that
there were no specific reasons given during trial as to why these other options were not possible. Some of these less—you know, short of termination options would be to reopen the [protective supervision services] case and to implement . . . a reliable source for the kids to contact directly as to eliminate . . . the possibility of them making reports to either parent, to implementing a high-conflict therapist/family counselor . . . . Or start a new [protective supervision services] case . . . . Or permanent legal custody and guardianship with the dad, but which would allow the mom to remain in the kids’ lives and continue playing an active role in that. There are other options that would—that are short of termination that would preserve—that would enable the kids to continue having a relationship with their mother.
Mother’s counsel asserted that Mother had “worked hard and earnestly” to “be a better mom” and “did everything she was asked to do.” Mother’s counsel admitted that after the close of the protected supervision services case, “not all of the recommendations made by the therapist were followed,” but counsel suggested that if there had been “an assigned family therapist in place . . . we wouldn’t be here today.” Counsel concluded her argument by requesting that the court reopen the prior protective supervised services case and “require the parties to comply with the recommendations as given by the service providers.”
Termination Decision
¶56 The juvenile court subsequently issued a written decision terminating Mother’s parental rights to the Children.
¶57 Early in this ruling, the court found the testimony of Therapist to be “both credible and helpful in provid[ing] understanding of the harm done to the Children due to the actions of [Mother].” By contrast, the court found that Mother’s testimony at trial “was not credible and at times was simply untruthful.” Specifically, the court contrasted Mother’s testimony that she had never seen D.M.’s January 2022 letter and that she was unaware of its contents with the video showing her reading the letter at the sheriff’s office. The court also found that Mother had given “different versions of her story of how [D.M.] wrote the letter and how the letter was then mailed to the sheriff’s office.”
¶58 Addressing the January 2022 letter, the court found that D.M. “first lied to the sheriff deputy and stated that he wrote the letter without the help of his mother and rode himself to the post office to mail the letter,” and the court opined that it “cannot find any other reason for [D.M.] to lie about how the letter was written and delivered to the post office other than [Mother] telling him to do so.” The court found that “the allegations stated in the letter were false and were contrived by [Mother] to cause harm to and further alienate [Father] with his Children.”
¶59 The court then found that six grounds for termination had been established: abuse, neglect, unfitness, failure to provide care, token efforts, and “other.” As part of its unfitness analysis, the court found that “[a]fter years of unsubstantiated allegations of abuse against Father,” Mother “still fails to show any real remorse for her actions and their consequences on the Children. She simply testified that she ‘doesn’t know’ whether or not the Children have been or are being abused by” Father. The court found that “[a]fter years of therapy and services by DCFS, [Mother] refuses to take any responsibility for her behavior.” The court concluded that Mother “has shown that she cannot stop her destructive behavior regarding false allegations and refuses to take any responsibility regarding the Children’s statements to DCFS and law enforcement.”
¶60 The court then determined it was in the Children’s best interest to terminate Mother’s rights and that it was also strictly necessary to do so. In its best interest determination, the court found that Mother “is unable to accept any court order that does not grant her primary care and custody of the children and will distort facts and perceptions until it makes sense to her that she should have custody.” The court found that Mother
has not demonstrated the ability to sustain progress in treatment that shows that the Children would be safe in her care. Her actions taken less than a month after the protective supervision services case closed demonstrates that she has not responded to the extensive services provided to her. [Mother] has shown that when she is not subject to the strict oversight of DCFS and this Court, she reverts to allegations of abuse against [Father].
¶61 Under a separate subheading devoted to the strictly necessary determination, the court found it had “considered less-restrictive alternatives than termination of [Mother’s] parental rights” and that a “permanent custody and guardianship arrangement is unworkable and not in the best interest of the Children.” The court found that Mother “has made or caused to be made a multitude of false allegations of physical and sexual abuse against [Father] throughout a period [of] seven years, causing the Children to be interviewed repeatedly and examined and having their lives investigated.” The court further found that “[a]ny contact” that Mother has with the Children “is likely to result in an additional false allegation, necessitating additional investigation, interviews, etc., all to the serious detriment of the Children.” Finally, the court found that even when it “ordered [Mother] to be restricted to supervised visits by DCFS with the children, [Mother] absconded with the children. The Court cannot perceive a less-restrictive alternative which would protect the Children from further trauma without terminating [Mother’s] parental rights.”
ISSUES AND STANDARDS OF REVIEW
¶62 Mother challenges the termination order on two primary grounds. First, she argues that in its best interest analysis, the juvenile court “failed to consider all the facts” and improperly relied on past events rather than engaging in a present-tense inquiry. Second, she argues that the court “did not make findings as to why supervised visitation was not feasible.”
¶63 This court applies “differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. “A best interest determination involves neither a pure finding of fact nor an abstract conclusion of law. This is a mixed determination of law and fact—in which the abstract law is applied to a given set of facts.” Id. ¶ 17. “The juvenile court’s decision can be overturned only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. ¶ 31 (quotation simplified).[2]
ANALYSIS
¶64 The Utah legislature has determined that “[a] child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.” Utah Code § 80-4-104(8). In light of this, a “juvenile court should only transfer custody of a child from the child’s natural parent for compelling reasons and when there is a jurisdictional basis to do so.” Id. “When the [juvenile] court considers a child’s welfare and best interest, the court’s focus should be firmly fixed on finding the outcome that best secures the child’s well-being.” In re B.T.B., 2020 UT 60, ¶ 64, 472 P.3d 827.
¶65 To terminate a parent’s rights, a court must find that (1) a statutory ground for termination exists and (2) termination is in the child’s best interest. See id. ¶¶ 19–20. With one minor exception that we address below in Part III, Mother’s appeal does not challenge the court’s determination that there were grounds to terminate her parental rights. Rather, Mother’s appeal is focused on the best interest portion of the court’s ruling.
¶66 “The best-interest inquiry is wide-ranging and asks a court to weigh the entirety of the circumstances of a child’s situation, including the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” In re J.J.W., 2022 UT App 116, ¶ 26, 520 P.3d 38 (quotation simplified). By statute, a court can only find that termination is in the best interest of a child if it also finds that “termination of parental rights, from the child’s point of view, is strictly necessary.” Utah Code § 80-4-301(1); accord In re B.T.B., 2020 UT 60, ¶ 66. The “statutory language uses the verb ‘is,’ indicating that the best-interest inquiry is to be undertaken in a present-tense fashion.” In re Z.C.W., 2021 UT App 98, ¶ 13, 500 P.3d 94. Moreover, Utah law presumes that “Lilt is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” Utah Code § 80-4-104(8). In light of this, a juvenile court “must determine whether a feasible option short of imposing the ultimate remedy of terminating the parent’s rights exists, and if it does, the court must choose it.” In re K.Y., 2022 UT App 149, ¶ 34, 523 P.3d 1159 (quotation simplified).
¶67 As noted, Mother advances two main challenges to the court’s ruling. First, Mother argues that the court did not properly account for the present-tense best interest of the Children, but that it instead improperly relied “on outdated information.” And second, Mother argues that the court erred by not determining on the record whether an order of ongoing supervised visitation was a feasible non-termination option. We reject both challenges.
Present-Tense Best Interest of the Children
¶68 Mother argues that the court’s conclusion that it was in the best interest of the Children to terminate her parental rights was “based on outdated information.” In Mother’s view, the court failed to properly account for the fact “that between January 2022 and July 2022, Mother had supervised visits without incident.” We disagree.
¶69 Again, it’s settled that “the best-interest inquiry is to be undertaken in a present-tense fashion.” In re Z.C.W., 2021 UT App 98, ¶ 13. “Because children inhabit dynamic environments in which their needs and circumstances are constantly evolving,” the best interest inquiry must “be undertaken in a present-tense fashion, as of the date of the trial or hearing held to decide the question.” In re A.H., 2022 UT App 114, ¶ 34, 518 P.3d 993 (quotation simplified), cert. granted, 525 P.3d 1279 (Utah 2023). “In a best-interest inquiry, the relevant question is almost always this one: what outcome is in the child’s best interest now?” In re Z.C.W., 2021 UT App 98, ¶ 12 (emphasis in original).
¶70 The juvenile court’s order in this case was properly couched in present-tense terms. In its findings on unfitness, for example, the court found that Mother “still fails to show any real remorse for her actions and their consequences on the children.” (Emphasis added.) The court also found that Mother “has shown that she cannot stop her destructive behavior regarding false allegations and refuses to take any responsibility regarding the children’s statements to DCFS and law enforcement.” (Emphases added.) Then, in a subsection that was specifically directed at the best interest determination, the court found that Mother’s “intent and the effect of her actions is to disrupt any semblance of stability the children might enjoy regarding [Father] while in his care,” and it further found that Mother “is unable to accept any court order that does not grant her primary care and custody of the children and will distort facts and perceptions until it makes sense to her that she should have custody.” (Emphases added.) And in another subsection that was specifically devoted to the strictly necessary determination, the court found that “any contact [Mother] has with the children is likely to result in an additional false allegation, necessitating additional investigation, interviews, etc., all to the serious detriment of the children,” that “Mother has not shown that she can stop the false allegations” against Father, and that Mother “fails to even acknowledge that the allegations are false or that she is in any way responsible for them.” (Emphases added.) In these and other instances in the ruling, the court made it clear that it was making a determination about the present-tense best interest of the Children.
¶71 Given this, Mother’s argument is ultimately focused on the alleged lack of evidentiary support for that conclusion. Mother asserts that although the court’s ruling may have been written in the present tense, the information that it relied on was so old or stale that the court had no valid basis for concluding that termination was in the Children’s present-tense best interest. We disagree.
¶72 In virtually any decision that’s made in law or life, questions about the present must in some measure be answered through consideration of relevant events from the past. As famously put by Faulkner, the “past is never dead. It’s not even past.” William Faulkner, Requiem for a Nun 92 (1951).
¶73 Our cases have recognized as much in this very particular legal context. Although it’s true that the best interest determination is made in the present-tense, it’s also true that “considering what a child’s best interest is at the time of trial does not require ignoring historical patterns.” In re A.K., 2022 UT App 148, ¶ 8 n.3, 523 P.3d 1156 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023). Rather, “a juvenile court judge conducting a best interests analysis must weigh evidence forecasting future events in order to predict what course of action will best protect and nurture the child.” In re C.L., 2007 UT 51, ¶ 22, 166 P.3d 608 (quotation simplified). Since neither judges nor expert witnesses are soothsayers, the evidence that a court would rely on to “forecast[] future events” would naturally include evidence of things that had happened in the past between the parent and the children. In this sense, a court is tasked with “weigh[ing] a parent’s past conduct with her present abilities” in order to make the statutorily required determination. In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435.
¶74 Mother recognizes this, but she nevertheless argues that there must be some point at which the evidence is too distant to support a determination about a child’s present-tense best interest. In concept, we agree. But in application, we disagree with Mother’s suggestion that the evidence in this case was so remote that it could not be relied on.
¶75 Mother first points out that much of the court’s ruling was based on events that had occurred years before trial. And she’s right—the court did make repeated reference to events that had occurred years earlier. But even so, we think it significant that the court was not focused on an isolated event or two that had occurred in the far distant past. Rather, the court was focused on a pattern of events that had unfolded over the course of several years. As recounted at some length above, Mother began making allegations of sexual and physical abuse against Father in 2015, and she kept making such allegations over the course of the next five years. Mother kept doing so despite the apparent lack of any corroborating evidence. And she repeatedly encouraged her young children to make allegations against Father as well, even though this resulted in the Children being subject to repeated interviews and even physical examinations, and she also did so despite the transparently imaginative nature of some of the allegations.[3] Given that the juvenile court’s inquiry in this case was in some measure predictive, its focus on a pattern of behavior that had extended over several years would of course have probative value.
¶76 Even so, Mother points out that her behavior had improved enough by the later months of 2021 to prompt the juvenile court to close the protective supervision services case in December 2021. But as the juvenile court stressed in its termination order, within just a few weeks of that case being closed, Mother encouraged D.M. to write a letter to law enforcement with yet another allegation of abuse, Mother lied to authorities when questioned about her involvement in that letter, and Mother publicly accused Father of attempting to kidnap the Children during a confrontation at a school (and she did so in front of other children, no less). These events certainly gave the court some basis for reassessing its conclusion from December 2021 that Mother’s pattern of troubling behavior had come to an end.
¶77 This leads to Mother’s final assertion, which is that the January 2022 events could not support the termination order that was entered in July 2022 because no further incidents occurred during the January-to-July interim. As an initial matter, we have some skepticism about Mother’s suggestion that events that occurred five months before trial are indeed so remote that they could not inform the court’s present-tense best interest determination. And our skepticism of this argument is particularly warranted here, where the events that occurred in January 2022 are consistent with a prior pattern of events that had stretched out over the course of several years. After all, even during the 2015 through 2020 period, there were several stretches of several months in which Mother didn’t make any allegations. Yet each time, the period of dormancy was later interrupted by new allegations of abuse.
¶78 But more importantly, we disagree with Mother’s suggestion that nothing of note had occurred in the January-to-July interim. In reviewing the juvenile court’s termination decision, two things stand out.
¶79 First, at the time of the July trial, the court now had access to new information (primarily from Therapist) about the harm that Mother’s long-term behavior had inflicted on the Children. On January 24, 2022, Therapist wrote that D.M. reported “feeling very confused because [Father] never did that stuff” but that D.M. did not want to disappoint Mother. Therapist said D.M. felt “sort of unsafe” because of the events surrounding the January 2022 letter and “all the question asking.” And Therapist also said that H.M. reported feeling “tired of all the asking stuff” with Mother and that H.M. thought that life felt “sad and mad and scary” as a result. In a June 2022 letter, Therapist then informed the court that after a March 2022 visit with Mother, H.M. told her that he “didn’t like it and it didn’t feel safe.” She said that H.M. told her that “it sort of made [his] stomach hurt and like maybe she was going to take [him] again.”
¶80 Therapist’s testimony at trial gave the court even more insight into these harms. Therapist testified that D.M. was tearful in his January 2022 session and that he was “wrestling with himself because he had lied during some of [the interviews] because he felt like that was the right thing to do for [Mother].” Therapist testified that D.M. was “having a lot of shame towards himself” and that D.M. had told her he felt like he had “to say that these things have happened in order to make [Mother] happy.” Therapist also testified that after the January 2022 incidents, H.M. was “very, very vocal about not wanting to do the visits” with Mother. She testified that H.M. told her that “[m]y mom just—she comes at me and comes at me. I don’t want to go. I don’t want to deal with it.” She further testified that H.M.’s “exact words” to her were, “How would you feel if this were always happening to you? I just want a normal life.”
¶81 The court didn’t have this information when it closed the case in December 2021, but it did have this information at trial. And this information could properly inform any decision about what was in the best interest of the Children moving forward.
¶82 Second, the court also had new information about Mother’s mindset. In its order, the court found that Mother’s trial testimony “was not credible and at times was simply untruthful.” For example, the court noted that Mother testified twice that she was seeing D.M.’s January 2022 letter for the first time in the courtroom, even though a video of an earlier interview with law enforcement showed Mother reading that letter then. The court also highlighted Mother’s contrasting stories about how D.M. had written the letter. And the court further determined that Mother’s “statements that she has no opinion on whether she believes” that Father abused the Children were “not credible[,] taking into account the history of her actions in this matter.”
¶83 Based in part on Mother’s July 2022 trial testimony, the court found that Mother “still fails to show any real remorse for her actions and their consequences on the Children.” And the court found that although Mother “believes it improves her standing to now say that she ‘doesn’t know’ or has no opinion on whether or not the Children have been abused,” she “continues to deny responsibility for the continuous harm of false allegations.” Mother’s testimony and the court’s observations of her mindset were, of course, new information. And this new information would have some proper bearing on the court’s assessment of whether it was presently in the Children’s best interest to terminate Mother’s parental rights.
¶84 Pushing back, Mother points to some contrary evidence showing that there had been some improvement in her relationship with the Children. For example, Lead Caseworker testified that while H.M. initially showed some hesitancy at the visits, by the time of trial he would “sit in mom’s lap now where he wouldn’t do that before. You know, he’ll hug her. Things like that.” Lead Caseworker also testified that “D.M. is very good with his mom. I mean, it seems like they like to play together. And they just have fun when he’s there.” And at trial, Lead Caseworker said that she could not remember any time since January 2022 that the Children expressed to her “any concerns or anxiety about contact with their mom.” Also, minutes from a March 2022 hearing indicate that Mother had “been appropriate on her visits.” And in a DCFS Progress Report written a month before trial, D.M. “report[ed] that he wants the visits to last longer and [H.M.] asked to have the visits in [Mother’s] house.”
¶85 But again, a “juvenile court’s decision can be overturned only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified). Here:
The events that occurred from 2015 through 2020 gave the court ample reason to find that Mother had a long-term and persistent desire to make allegations of abuse against Father, that she was willing to directly involve the Children in those efforts, and that she was willing to ignore court orders (such as those she ignored when absconding with the Children on two occasions in 2020).
The events of January 2022 and Mother’s non-remorseful testimony at trial gave the court reason to believe that Mother’s good behavior in late 2021 had been temporary, rather than permanent, and that Mother still persisted in her beliefs about Father and her willingness to manipulate the Children or court processes to support her views.
And the new evidence that the court received leading up to trial and then at trial gave it additional information about the harm that was being done to the Children by Mother’s behavior.
¶86 In short, the court was tasked with making a present-tense determination, and its decision reflects that it did. In making that determination, the court could properly consider past and present events together. Although the court had concluded in December 2021 that the protective supervision case should be closed, more recent events had given the court reason to reassess its conclusions about Mother’s ongoing danger to the Children. Given the evidence that was before the court at trial, we see no basis for concluding that the court’s decision was improperly based on stale evidence. We therefore reject this argument.
Supervised Visitation
¶87 A court may only terminate a parent’s rights if it finds that termination is in the child’s best interest and that “termination of parental rights, from the child’s point of view, is strictly necessary.” Utah Code § 80-4-301(1). “The strictly necessary language is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 69. “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary” and “the court cannot order the parent’s rights terminated.” Id. ¶ 66. Moreover, when a juvenile court is presented with a readily apparent non-termination option, the court must “state, on the record, its reasons for rejecting feasible alternatives.” In re K.Y., 2022 UT App 149, ¶ 43 (quotation simplified). This “leaves no room for implicit rejection.” Id. (quotation simplified).
¶88 As noted, the court heard both evidence and argument suggesting that supervised visitation was not a viable solution moving forward. Therapist testified that although DCFS “may have talked about the possibility of supervised visitation,” “that’s not really along the normal, natural developmental means, and so I didn’t feel like that was the best option.” And in closing argument, the GAL argued that “[s]upervising visits for the rest of these children’s childhood is not feasible, it’s not in their best interest, it’s not appropriate.” As also noted, the juvenile court then made a series of findings about why it was strictly necessary to terminate Mother’s parental rights. Despite these findings, Mother argues that the juvenile court “erred as a matter of law when it did not make findings as to why supervised visitation” was not a feasible alternative to termination. We disagree with Mother’s claim that the ruling was lacking in this respect.
¶89 The cases in which we’ve found that a court erred by not addressing a feasible alternative have involved termination orders that were far less clear than the one at issue here. In In re K.Y., for example, the court’s best interest analysis was just two paragraphs long. See 2022 UT App 149, ¶ 28. After the State asserted on appeal that the juvenile court had at least “implicitly” rejected a potential guardianship within those two paragraphs, id. ¶ 42, we rejected that assertion, explaining that it was unclear to us “which conclusion” the court would have even reached about a potential guardianship, id. ¶ 44. The order at issue in In re J.J.W. had similar infirmities. There, “the court’s best-interest analysis consisted of a single paragraph.” 2022 UT App 116, ¶ 16. And while we agreed that the court had “by necessity” implicitly rejected guardianship as an option, id. ¶ 32, we still reversed because we still saw no explanation for why the court thought that guardianship was not a viable option, id. ¶ 35.
¶90 The ruling at issue in this case is decidedly different. The court devoted nearly three pages of analysis to the best interest inquiry alone, and it then devoted an additional page and a half to the strictly necessary determination. In addition, the ruling as a whole spans over 40 pages, and many of the court’s findings and conclusions from the other sections were interconnected and had obvious bearing on the best interest and strictly necessary determinations. Thus, unlike the orders at issue in prior cases where we’ve found this kind of error, the court here issued a detailed order that gave clear insight into its thinking about the relevant questions.
¶91 This leads to the question of whether the court’s ruling left any room for ongoing supervised visits as a non-termination option. Here, the subsection on the strictly necessary determination began with the court’s declaration that it “ha[d] considered less-restrictive alternatives than termination of [Mother’s] parental rights” and its conclusion that a “permanent custody and guardianship arrangement is unworkable and not in the best interest of the Children.” Under the same subheading, the court recounted the incidents in which Mother had previously absconded with the Children. The court specifically highlighted the fact that the second absconding incident had occurred when Mother “abducted the children from a division-supervised visit at the Division’s offices in July 2020.” The court then stressed that “[e]ven when the Court ordered the mother to be restricted to supervised visits by DCFS with the children, mother absconded with the children.” With this as something of a springboard, the very next sentence read, “The Court cannot perceive a less-restrictive alternative which would protect the children from further trauma without terminating mother’s parental rights.” The court’s focus was thus explicit and clear: the court had concluded that the only way to protect the Children from Mother inflicting “further trauma” on them by absconding with them again was to terminate her parental rights.
¶92 Mother nevertheless stresses that she had not absconded with the Children recently, and in light of this, she suggests that it’s unclear why, or perhaps even whether, the court was ruling out supervised visits as a viable option moving forward. But in cases such as In re K.Y. or In re J.J.W., we were left guessing at the court’s ruling or rationale. Here, however, it requires no guesswork to see that the court had indeed rejected ongoing visitation as an option, nor is there any question about why the court had done so. Again, in the subsection of its ruling that addressed the best interest determination, the court found that Mother “is unable to accept any court order that does not grant her primary care and custody of the children and will distort facts and perceptions until it makes sense to her that she should have custody.” And in the subsection that more particularly addressed the strictly necessary inquiry, the court found that “Mother has not shown that she can stop the false allegations against” Father and that “[a]ny contact the mother has with the children is likely to result in an additional false allegation, necessitating additional investigation, interviews, etc., all to the serious detriment to the children.”
¶93 This ruling thus foreclosed the possibility of ongoing supervised visits as a viable alternative to termination. Taking the court at its word, the court’s express finding that “any contact” carried the risk of causing potential harm to the Children by definition ruled out ongoing supervised visits. And the court’s focus on the prior absconding events, coupled with its findings about Mother’s current lack of remorse, collectively explained why the court thought that even supervised visits would still present an unacceptable risk—whether it be of Mother absconding with the Children again or of using any visits (even supervised ones) to raise new allegations of abuse against Father. All of this is drawn directly from the court’s ruling.
¶94 In short, the juvenile court was sufficiently clear about its finding that termination was in the best interest of the Children and that termination was also strictly necessary, and the rationales given by the court directly foreclosed ongoing supervision as a feasible option. We see no basis for reversing the decision.
III. Mother’s Additional Arguments
¶95 Mother briefly raises three additional issues on appeal. But none of them warrant reversal.
Adoption
¶96 At the back end of the best interest section of its ruling, the juvenile court found, “It is in the children’s best interests to terminate the parental rights of [Mother] so they may be free from abuse and neglect, so they may receive the proper safety, parenting, bonding, love, affection and stability they need, and so they may be adopted where they are safe, secure and stable.” Mother now argues that the court should not have relied on adoption in its best interest analysis because “adoption by a stepparent is wholly unnecessary” since “Father has sole custody.”
¶97 Our best interest cases have suggested that a court should not terminate a parent’s rights based on the “categorical concern” that adoption provides more stability to children than some other non-termination option. See, e.g., In re J.A.L., 2022 UT 12, ¶ 25, 506 P.3d 606. But we disagree with Mother’s suggestion that the ruling here was categorical in nature. The court’s ruling was not only extensive, but it was focused on particular findings of the harm inflicted on the Children by Mother. We see no basis for overturning the decision based on the court’s stray reference to adoption in a single portion of the ruling.
“Piling On”
¶98 Mother also argues that the court “piled on its grounds rulings by basing all six of its grounds-related findings on the same ‘emotional abuse.’” Mother argues that this practice violated “the spirit of the ‘grounds’ statutes, if not the letter,” because “[p]iling on multiple grounds based on the same subset of facts simply renders the additional ‘grounds’ superfluous.”
¶99 But Mother concedes that this practice “do[es] not provide independent grounds for relief on appeal.” And while Mother points to some caselaw from the attorney discipline context that might suggest that it’s problematic to “pile on” multiple overlapping charges, Mother provides no authority that supports her view that a juvenile court cannot base a termination decision on multiple grounds if the statutorily defined elements of those multiple grounds have some or even substantial overlap. We’re aware of no such authority either, and we therefore see no basis for overturning this ruling as a result of this alleged problem.
Mandatory Reporting
¶100 Finally, Mother argues that “the court’s findings of emotional abuse are not supported by Utah law, where parents have both a right and a responsibility to report perceived abuse to authorities.” In Mother’s view, the “court’s decision sets up a scenario that fails to protect” children from “physical abuse and instead deems them ‘emotionally abused’ if one parent reports repeated, suspected abuse by the other.” Mother thus argues that the “court’s decision faults” her “for protecting [the] Children as she thought best.”
¶101 But the juvenile court’s extensive findings in this case leave no room for the conclusion that Mother’s rights have been terminated for anything like a good faith effort to protect the Children. The juvenile court found, with ample support, that Mother has engaged in a years-long campaign of filing unsupported or false reports of abuse against Father, that Mother has co-opted her children into being participants in this campaign (despite the fact that doing so caused them to be subjected to multiple police interviews and even physical examinations), that Mother has defied court orders and absconded with her children on two occasions, and that Mother lied to law enforcement and the court during the course of official interviews and proceedings.
¶102 We thus emphasize that a parent’s rights should not be terminated for making a good faith report of suspected abuse. But we likewise emphasize that nothing like that happened here. Rather, under the terms of the court’s order, Mother’s rights were terminated because of her years-long pattern of abusive behavior toward her children, not because of a good faith attempt to protect them.
CONCLUSION
¶103 The juvenile court did not err in relying on past events to support its present-tense best interest analysis, nor did it fail to account for the possibility of ordering ongoing supervised visits in its strictly necessary determination. Its decision to terminate Mother’s parental rights is accordingly affirmed.
[1] It’s appropriate at the outset to explain some of the word choices and information gaps in our recitation of the history of this case. As indicated in the introductory paragraphs of this opinion, this case centers on a years-long history of reports of abuse that were made against Father. The reports themselves are not in the record, so the record is limited to descriptions of those reports that came from others (most commonly the juvenile court in its various rulings).
In many instances, the passive voice was used when describing who had made an individual report—i.e., the record would say something like, “a referral was made.” To be faithful to the record, we’ve proceeded similarly. Also, the record sometimes says that a report was made but doesn’t then say what DCFS or law enforcement did with that report. And in some instances, the record makes passing reference to a reason a report was unaccepted without then providing much (or even any) explanatory detail. Our silence reflects those omissions too.
While acknowledging these caveats upfront, we note that the clear implications of the record generally and of the juvenile court’s termination decision more particularly are that (1) with the exception of the reports that were made by the Children themselves, it was Mother who was making most (if not all) of the reports of abuse against Father and (2) none of the reports of physical or sexual abuse that were made against Father were corroborated or accepted by DCFS or law enforcement.
[2] Mother also advances a few additional arguments relating to the grounds for termination and the broader scope of the allegations against her. These arguments are subject to this same standard of review, and we address them together in Part III.
[3] 3. As noted, the allegations included such things as an exploding car, Father allegedly punching a child in the bottom with a hammer, and Father somehow assaulting and even breaking a child’s neck in the middle of a church service.
I had lunch today with a former legal assistant of mine who is now a law student in Arizona. Over the summer he shadowed judges in Maricopa County during their family court rotations.
He told me that in Arizona the courts permit children over the age of 10 years to testify in child custody proceedings.
Are the Arizona courts administered by fools and sadists?
Or could it be that the Utah district courts’ near-universal aversion to any and all forms of on the record child testimony in child custody proceedings is a case of misplaced priorities?
Could it be that the way Utah courts use appointments of guardians ad litem and/or custody evaluators for the ostensible purpose of “speaking for” competent witness minor children
is a sophomoric euphemism for good old fashioned hearsay?
ironically results in silencing the most percipient witnesses (regarding issues in which they have the greatest stake)?
Could it be that GAL “reports” and “recommendations” that are based upon purported interviews with the minor child (when there is no objectively verifiable record of whether the interviews even took place, to say nothing of what was and was not asked and answered in the course of the alleged interview) are not fact or expert witness testimony (see State ex rel. A.D., ¶¶ 6 and 7, 6 P.3d 1137, 2000 UT App 216) and thus inherently not evidence?
Could it be that custody evaluator “expert testimony” and “recommendations” based upon purported interviews with the minor child (when there is no objectively verifiable record of whether the interviews even took place, to say nothing of what was and was not asked and answered in the course of the alleged interview) inherently can’t qualify as expert testimony (URE Rule 702 (Rules of Evidence))?
Special masters, parent coordinators, and the infantilization of parents
Special masters and parent coordinators (and co-parenting therapists, co-parent coaches/consultants, and their ilk) were invented for the purpose of unburdening courts from some of the conflict associated with domestic relations litigation. They fail to fulfill their purpose. They do not provide value for the money they charge. The parent(s) end up wasting money on a special master, parent coordinator, etc. while the disputes either persist or get worse (and sometimes it’s the involvement of the special master and parent coordinators who are to blame, either in full or in part). Besides, for most litigants a special master, parent coordinator, etc. is an expense they cannot (or should not) financially bear.
The idea that divorced parents need more than the laws currently on the books, the (lawful) orders in their divorce and child custody decrees, and the sensible use of law enforcement officers when warranted is to infantilize divorced and separated parents.
In the overwhelming majority of cases, anyone trying to sell you on a special master, parent coordinators, co-parenting therapist, co-parent coach, consultants, blah, blah, blah is either someone who offers such “services” and who is trying to sell them to you or a is a court trying to take the dispute out its lap and place it in someone else’s.
Karra J. Porter and Kristen C. Kiburtz, Attorneys for Appellant
Julie J. Nelson, Attorney for Appellee
JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.
OLIVER, Judge:
¶1 Richard Lee Clark appeals from the district court’s decision following a two-day divorce trial. Clark challenges several aspects of the court’s ruling, including a discovery sanction for his failure to timely disclose his trial exhibits under rule 26 of the Utah Rules of Civil Procedure; findings relating to his claim that his ex-wife, Susan Jeanne Clark, dissipated the marital estate; and the court’s division of the marital property. We affirm the district court’s ruling with the exception of one aspect of the district court’s marital property determination, which we vacate and remand for additional findings.
BACKGROUND
¶2 Richard and Susan[1] married in 2002, when Richard was in his sixties and Susan was in her fifties. Richard was retired from military service and from employment as an attorney with the Department of Justice. Susan owned a wallpaper business when she met Richard but quit working shortly after they married. For the next six years, Richard and Susan lived off Richard’s retirement income from both the Army and the Department of Justice.
¶3 In 2008, Richard came out of retirement to work for a government contractor in Afghanistan, where he lived for thirty-eight months. During that time, Richard’s retirement and employment income of $814,627 was deposited into a joint account that Susan controlled. Richard returned home to find “probably about $100,000 . . . had been saved” in the joint bank account—much less than he expected—yet he said nothing to Susan at that time.
¶4 Three years after his return, Richard moved into the basement of the marital home. The following year, in 2016, Susan transferred approximately $78,000 from their joint account into her personal account, prompting Richard to confront her about what he viewed as missing money from his time in Afghanistan. Two years later, in 2018, Susan filed for divorce. Shortly afterward, Richard purchased a Harley-Davidson motorcycle with financing, which he paid off in 2020.
¶5 At the time of their divorce, Richard and Susan owned two real properties—a condo in Norfolk, Virginia (Mooring Drive), and a home in Kamas, Utah (Ross Creek). Richard had purchased Mooring Drive before the marriage for approximately $205,000. In 2003, Richard added Susan to the title of Mooring Drive, which allowed her to vote at the condominium association’s meetings and to join the board. The following year, Richard and Susan used equity loans on Mooring Drive to finance the purchase and construction of Ross Creek. From 2009—when Susan moved to Utah and Richard was in Afghanistan—until June 2019, Richard rented Mooring Drive out to others and the revenues were deposited into his separate account that was designated to pay for the property’s expenses.
¶6 During their marriage, the parties took out an equity loan on Ross Creek that matured, along with one of the equity loans from Mooring Drive, in 2019. With the divorce still pending, Susan agreed to refinance Ross Creek’s mortgage to pay off the two equity loans that were due, but only if Richard would stipulate that Mooring Drive and Ross Creek were marital property and were subject to equitable division in their pending divorce. Richard agreed, and the parties stipulated that “the Ross Creek and Mooring Drive properties shall remain marital property and shall be subject to equitable division in the parties’ divorce notwithstanding that the Ross Creek home and Mooring Drive property will no longer be jointly titled.”
¶7 In April 2019, the Mooring Drive tenants’ lease expired. Richard decided he could only offer the tenants a month-to-month lease until his divorce was over. When the tenants declined to renew and moved out in June, Richard withdrew $30,000 from the joint bank account, claiming that he needed the funds to cover Mooring Drive’s expenses. After a hearing, the court entered temporary orders in December 2019, permitting Richard to access equity in Ross Creek to pay off debt on Mooring Drive but denying his “request for financial relief based on the loss of rental income because [Richard] ha[d] not made any attempt to secure new renters.”
¶8 Trial was originally scheduled for June 2020, but when the COVID-19 pandemic hit and courts were required to hold bench trials virtually, Richard declined to proceed with a virtual trial, and it was continued without a date. In February 2021, the court held a pretrial scheduling conference and rescheduled the trial for May 2021. The court’s pretrial order stated the parties must produce pretrial disclosures on or before April 26, 2021, pursuant to rule 26(a)(5)(B) of the Utah Rules of Civil Procedure.
¶9 Richard missed the deadline. A week after it passed, he requested a continuance to hire trial counsel. Richard had been representing himself as a pro se litigant despite being eighty-four years old and not having practiced law since 1988. According to Richard, health issues arose that made him “no longer physically and mentally capable of representing” himself. The court granted the motion, rescheduling the trial for June. The new deadline for pretrial disclosures became May 24, but Richard did not submit his pretrial disclosures until June 10—eleven days before trial.
¶10 The two-day trial began with Susan’s objection to Richard’s untimely pretrial disclosures. Susan contended that Richard had “ample opportunity” to produce his pretrial disclosures given the multiple continuances of the trial. In response, Richard claimed his failure to meet the disclosure deadline was harmless because he had previously produced as discovery responses the 339 pages of financial documents—including check registers, paystubs from 2008 to 2009, and bank account information from 2011 to 2012— that he sought to admit as exhibits 2 through 8. Yet Richard did not file certificates of service for those responses, and neither party’s counsel could confirm whether Richard had previously sent the documents in exhibits 2 through 8 to Susan, leaving the district court with only Richard’s testimony to support the claim that he had previously disclosed the exhibits. The district court sustained Susan’s objection as to exhibits 2 through 8, excluding them from trial.
¶11 Both Susan and Richard testified at trial. Susan testified Richard had transferred $30,000 from their joint account to his personal account in June 2019 and contended she was entitled to half of that amount. Susan also testified about her exhibits that provided recent balances in her bank and retirement accounts.
¶12 On cross-examination, Susan admitted she had not looked for work and was unemployed despite the court’s urging in 2020 for her to seek employment. Richard then peppered Susan about numerous expenditures during his time in Afghanistan, to which Susan replied that it “was a number of years ago” and she “ha[d] no recollection at all” of the transactions. Susan did state, however, that when Richard left for Afghanistan, she recalled they “had very large credit card balances” that Richard instructed her “to start paying off” while he was away.
¶13 First testifying as Susan’s witness, Richard answered questions about some of the marital property. He testified about a recent appraisal of Mooring Drive that valued it at $390,000, his three life insurance policies that all list Susan as the beneficiary, and his purchase of the Harley-Davidson in May 2019. Susan then introduced a pleading Richard had filed with the court in November 2019 that stated, in relevant part, he had “owned three motorcycles, selling the last one when [he] moved to Norfolk,” but he has “never ridden a Harley-Davidson.” Richard replied that he had “misstated the fact,” both in that pleading and at a hearing the same month when he told the court he did not own a Harley-Davidson. Richard testified he should receive three-fourths of the equity in Mooring Drive because he purchased it before the marriage. Unable to provide a figure for what the property was worth when he married Susan, Richard claimed that “the[] prices have gone up and gone down a great deal” since their marriage, but his best guess was that Mooring Drive appreciated from $205,000 to $350,000 between 2000 and 2002. Richard continued to do some impromptu math on the stand to clarify how much equity he felt he was owed, asserting that since Mooring Drive was recently appraised at $390,000 and had been worth $350,000 in 2002—by his best guess—there is $40,000 of equity for them to divide, but then he admitted such valuation “is something I’m just not knowledgeable about.”
¶14 As his own witness, Richard testified about Susan’s alleged dissipation during his time in Afghanistan. Richard’s excluded exhibits went to the issue of dissipation, so without the financial documents from that period, Richard sought to prove Susan “dissipated money while [he] was in Afghanistan” through his testimony about his earnings and typical expenses during that time frame. Using the excluded exhibits to refresh his recollection, Richard estimated their monthly expenses before he left were approximately $10,000 to $11,000. Richard also challenged Susan’s testimony about credit card balances, claiming that “there weren’t any large credit card balances before [he] left.”
¶15 At the conclusion of trial, the district court asked both parties to submit proposed findings of fact and conclusions of law in lieu of closing arguments. After issuing an oral ruling, the district court memorialized its decision in written findings of fact and conclusions of law. The court found that Richard’s “testimony was insufficient to establish his [dissipation] claim” and that Richard had “failed to meet his burden of demonstrating dissipation.” The court also found “problems with the credibility of both parties,” specifically finding that Susan’s “credibility was lacking with regards to the dissipation issue” and Richard’s “credibility was lacking with regards to his motorcycle purchase.” Susan was awarded Ross Creek’s equity, and Richard was awarded Mooring Drive’s. The court awarded Susan $2,500 per month in alimony and an offset of $43,474 (from Richard’s purchase of the Harley-Davidson and his $30,000 withdrawal from the joint account) “to achieve an equitable division of the estate.” The court found Richard “withdrew $30,000 from the joint account without [Susan’s] knowledge or consent and deposited it into his own personal account,” but it made no findings as to how Richard spent the $30,000.
ISSUES AND STANDARDS OF REVIEW
¶16 Richard raises three main issues for our review. First, Richard challenges the district court’s exclusion of his exhibits for his failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure. A district court “has broad discretion regarding the imposition of discovery sanctions,” and when we apply “the abuse of discretion standard to the district court’s imposition of a particular sanction, we give the district court a great deal of latitude.” Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933 (cleaned up).
¶17 Second, Richard contends the district court erred in its application of the burden of proof on Richard’s dissipation claim. A district court’s “allocation of the burden of proof is . . . a question of law that we review for correctness.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶ 20, 435 P.3d 179.
¶18 Finally, Richard challenges the district court’s division of the property, including the court’s finding that the marital estate included Mooring Drive and the Harley-Davidson, and its decision to deduct from the marital estate the $30,000 Richard withdrew from the parties’ joint account. A district court “has considerable discretion considering property division in a divorce proceeding, thus its actions enjoy a presumption of validity,” and “we will disturb the district court’s division only if there is a misunderstanding or misapplication of the law indicating an abuse of discretion.” Beckham v. Beckham, 2022 UT App 65, ¶ 6, 511 P.3d 1253 (cleaned up).
ANALYSIS
I. Pretrial Disclosures
¶19 Richard asserts the district court abused its discretion in excluding his exhibits 2 through 8 for failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure because he “produced the documents that comprised the exhibits” during discovery and any “technical non-compliance with that rule” was “harmless.” We disagree.
¶20 Rule 26 governs “disclosure and discovery” in civil matters and requires parties to provide “a copy of each exhibit, including charts, summaries, and demonstrative exhibits, unless solely for impeachment, separately identifying those which the party will offer and those which the party may offer . . . . at least 28 days before trial.” Utah R. Civ. P. 26(a)(5). A party who fails to timely disclose exhibits “may not use the undisclosed witness, document, or material at . . . trial unless the failure is harmless or the party shows good cause for the failure.” Id. R. 26(d)(4). A district court “has broad discretion in selecting and imposing sanctions for discovery violations under rule 26,” and “appellate courts may not interfere with such discretion unless there is either an erroneous conclusion of law or no evidentiary basis for the district court’s ruling.” Wallace v. Niels Fugal Sons Co., 2022 UT App 111, ¶ 26, 518 P.3d 184 (cleaned up), cert. denied, 525 P.3d 1267 (Utah 2023).
¶21 Richard does not dispute that he failed to timely disclose exhibits 2 through 8. Instead, Richard argues he produced the documents in those exhibits to Susan in earlier discovery responses, so his failure to timely file pretrial disclosures was harmless, and he further argues that it was Susan’s burden to prove she had not received them. In response, Susan asserts it was Richard’s burden, not hers, to prove that he produced the documents earlier in discovery, and the failure to file his pretrial disclosures pursuant to rule 26(a)(5) was not harmless. We agree with Susan on both fronts.
¶22 First, “the burden to demonstrate harmlessness or good cause is clearly on the party seeking relief from disclosure requirements.” Dierl v. Birkin, 2023 UT App 6, ¶ 32, 525 P.3d 127 (cleaned up), cert. denied, 527 P.3d 1107 (Utah 2023). Second, Richard failed to carry his burden of demonstrating harmlessness. Although Richard “assured [his counsel] that he [had] produced records related to this 2008-to-2012 timeframe,” he did not file the required certificates of service. See Utah R. Civ. P. 26(f) (requiring a party to file “the certificate of service stating that the disclosure, request for discovery, or response has been served on the other parties and the date of service”). Thus, Richard failed to prove that the documents had previously been produced.
¶23 But even if he had proved prior production, excusing pretrial disclosures if the documents were produced earlier in discovery would “eviscerate[] the rule that explicitly requires parties to” serve a copy of the documents they intend to use “in their case-in-chief at trial.” Johansen v. Johansen, 2021 UT App 130, ¶¶ 19, 26, 504 P.3d 152 (rejecting argument to follow the spirit of rule 26 rather than “the plain language of rule 26” regarding pretrial disclosures); see also Utah R. Civ. P. 26(a)(5)(A)(iv) (requiring pretrial disclosure of “each exhibit” the party will or may offer at trial). And expecting a party to sort through hundreds, if not thousands, of pages of documents that were produced earlier by the other side during discovery and then expecting the party to predict which ones the opposing party might seek to admit at trial would be harmful and would violate the intent of rule 26.
¶24 Ultimately, “a court’s determination with respect to harmlessness . . . . is a discretionary call,” and our review of it “is necessarily deferential.” Johansen, 2021 UT App 130, ¶ 11 (cleaned up). Thus, the district court was well within its “broad discretion” to exclude Richard’s exhibits 2 through 8 under these circumstances. See Wallace, 2022 UT App 111, ¶ 26 (cleaned up).
II. Dissipation
¶25 Richard claims the district court erred in finding that he failed to meet the burden of proof on his dissipation claim. We disagree.
¶26 “The marital estate is generally valued at the time of the divorce decree or trial.” Goggin v. Goggin, 2013 UT 16, ¶ 49, 299 P.3d 1079 (cleaned up). “But where one party has dissipated an asset,” the “trial court may, in the exercise of its equitable powers,” “hold one party accountable to the other for the dissipation.” Id. (cleaned up). A court’s inquiry into a dissipation claim may consider “a number of factors,” such as “(1) how the money was spent, including whether funds were used to pay legitimate marital expenses or individual expenses; (2) the parties’ historical practices; (3) the magnitude of any depletion; (4) the timing of the challenged actions in relation to the separation and divorce; and (5) any obstructive efforts that hinder the valuation of the assets.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022).
¶27 The burden of proof for dissipation initially falls on the party alleging it. See Parker v. Parker, 2000 UT App 30, ¶ 15, 996 P.2d 565 (stating that a party seeking to assert dissipation must make an “initial showing of apparent dissipation”). The district court correctly concluded that Richard bore the “burden of demonstrating dissipation.” To meet the “initial showing of apparent dissipation,” the party alleging dissipation must first show evidence of dissipation. Id. ¶¶ 13, 15. Only after “present[ing] the trial court with evidence tending to show that [Susan] had dissipated marital assets” does the burden shift to Susan “to show that the funds were not dissipated, but were used for some legitimate marital purpose.” Id. ¶ 13.
¶28 Richard’s documentary evidence on this issue had been excluded by the court, so the only evidence he presented was his testimony in 2021 that his income while in Afghanistan from 2008 to 2012 exceeded the estimated historical marital expenses from before 2008, some thirteen years earlier. Richard asserts that his testimony alone should suffice for an initial showing of dissipation. In Parker v. Parker, 2000 UT App 30, ¶ 15, 996 P.2d 565, the husband “presented the trial court with evidence” that detailed how the wife had dissipated marital assets—exact beginning and ending balances for eight bank accounts, the marital expenses during the time in question, and specific checks the wife wrote to herself—thus shifting the burden to the wife. Id. ¶ 13. But Richard, like the wife in Parker, only “testified in conclusory and cryptic terms,” and thus “wholly failed to meet [his] burden.” Id. ¶ 14.
¶29 Therefore, the district court was well within its discretion to decide that Richard’s uncorroborated testimony about Susan’s spending that occurred many years before either party contemplated divorce[2] was insufficient evidence to meet his initial burden of proving dissipation. Accordingly, the district court did not err in its finding that Richard failed to meet his burden of proof on the dissipation claim.
III. Marital Property
¶30 Richard presents three challenges to the district court’s division of the marital property. First, Richard asserts he is entitled to his premarital contribution to Mooring Drive. Second, he alleges the Harley-Davidson he purchased during the pendency of the divorce is his separate property. Third, Richard claims the court should not have deducted from the marital estate the $30,000 that he withdrew from the joint account in June 2019.
We affirm the district court’s decision on Richard’s first two challenges and vacate the decision on the third, remanding the matter for additional findings.
A. Mooring Drive
¶31 Although the district court awarded Richard the equity in Mooring Drive when it divided the marital estate, it did not also award Richard any premarital equity in the property for three reasons. First, it found that Richard “formally stipulated that Ross Creek and Mooring Drive were marital property subject to division in this divorce action.” Second, it found that “through a series of refinances, [Richard] transferred equity from Ross Creek to Mooring Drive, and paid expenses associated with both properties with marital funds.” Third, it found that Richard “formally conveyed the property to himself and [Susan] in 2003” when he added Susan’s name to the title. Because we affirm the district court’s decision not to award Richard any premarital equity on the basis of the parties’ stipulation, we do not address the other two reasons the district court relied upon.
¶32 Richard and Susan stipulated that “the Ross Creek and Mooring Drive properties shall remain marital property and shall be subject to equitable division in the parties’ divorce, notwithstanding that the Ross Creek home and Mooring Drive property will no longer be jointly titled.” Richard now claims that despite the language of the stipulation, he “never agreed that he should not be compensated for his premarital and separate contributions to Mooring Drive before the property became marital.” Furthermore, Richard argues, “nowhere in the stipulation did he agree that he was waiving his premarital equity in that property.”
¶33 Richard’s argument is flawed. “Parties to a divorce are bound by the terms of their stipulated agreement.” McQuarrie v. McQuarrie, 2021 UT 22, ¶ 18, 496 P.3d 44. And according to the “ordinary contract principles” that govern “contracts between spouses,” see Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246 (cleaned up), “if the language within the four corners of the contract is unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language,” Green River Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134 (cleaned up). See also Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994 (holding that “the best indication of the parties’ intent is the ordinary meaning of the contract’s terms”); Ocean 18 LLC v. Overage Refund Specialists LLC (In re Excess Proceeds from the Foreclosure of 1107 Snowberry St.), 2020 UT App 54, ¶ 22, 474 P.3d 481 (holding that where the “contract is facially unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language . . . without resort to parol evidence” (cleaned up)).
¶34 Richard essentially argues that the district court erred when it refused to go beyond the stipulation’s language and infer his intention from what he omitted. But the district court was correct when it interpreted the parties’ intentions by what the plain language of the stipulation does say and not by what it does not. Therefore, the district court did not abuse its discretion when it abided by the parties’ stipulation and included Mooring Drive as marital property, “subject to equitable division.”
B. The Harley-Davidson
¶35 “Prior to the entry of a divorce decree, all property acquired by parties to a marriage is marital property, owned equally by each party.” Dahl v. Dahl, 2015 UT 79, ¶ 126, 456 P.3d 276. Thus, the presumption is that property acquired during the pendency of a divorce is marital, not separate. Richard failed to rebut this presumption regarding the Harley-Davidson motorcycle he purchased because he failed to present evidence that he used separate funds.
¶36 Richard argued that he purchased the Harley-Davidson from separate, rather than marital, funds in his proposed findings of fact and conclusions of law.[3] To be clear, Richard does not assert that the Harley-Davidson is separate property because he purchased it after the parties separated or after Susan filed for divorce. Instead, he argues the only funds available to him to purchase the motorcycle came from his “separate premarital retirement income.” Richard’s argument fails for two reasons. First, Richard did not present evidence to support his argument that the funds he used to purchase the motorcycle came from separate, not marital, funds. Instead, Richard essentially places his burden on the district court by asserting, on appeal, that “[t]here was no marital account identified by the district court from which [Richard] could have made that purchase.” But Richard, not the court, bears the burden of identifying where the funds came from that he used to purchase the motorcycle.
¶37 Second, the district court found credibility problems with Richard’s testimony about the Harley-Davidson, concluding that Richard’s “credibility was lacking with regards to his motorcycle purchase.”[4] A district court “is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony” or “disregard such testimony if it finds the evidence self-serving and not credible.” Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751 (cleaned up).
¶38 In sum, as “property acquired during [the] marriage,” the Harley-Davidson is presumptively “marital property subject to equitable distribution.” Dahl, 2015 UT 79, ¶ 26. Richard bore the burden of proof to rebut the presumption that the funds he used to purchase the Harley-Davidson were not marital, and he presented no credible evidence to the district court to support that position. Thus, the district court did not abuse its discretion by including the motorcycle in the marital estate.
C. $30,000 Offset
¶39 Finally, Richard challenges the district court’s decision to include in the marital estate the $30,000 he withdrew from the joint account. The district court agreed with Susan that because Richard had made a unilateral withdrawal from the joint account during the pendency of the divorce, he should be held accountable for that withdrawal. Richard, on the other hand, claims he used the money for marital expenses, paying costs associated with Mooring Drive. Susan argues the money could also have been spent on personal items including travel and motorcycle payments and accessories. “How the money was spent, including whether [the] funds were used to pay legitimate marital expenses or individual expenses,” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022), is a critical question that needs to be resolved.
¶40 Divorce cases often require district courts to make numerous findings of fact. And generally speaking, “for findings of fact to be adequate, they must show that the court’s judgment or decree follows logically from, and is supported by, the evidence” and such findings “should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 28, 70 P.3d 35 (cleaned up). Moreover, when it comes to the “unequal division of marital property,” a district court must “memorialize[] in . . . detailed findings the exceptional circumstances supporting the distribution.” Bradford v. Bradford, 1999 UT App 373, ¶ 27, 993 P.2d 887 (cleaned up). “Without adequate findings detailing why [one spouse] should be entitled to such an unequal split of the marital estate, we cannot affirm the court’s award.” Fischer v. Fischer, 2021 UT App 145, ¶ 29, 505 P.3d 56; see, e.g., Rothwell v. Rothwell, 2023 UT App 50, ¶ 57, 531 P.3d 225 (concluding that “we simply do not have enough information” to rule on whether the funds were marital or separate, “let alone to conclude that the district court
. . . erred”).
¶41 We face the same dilemma here. The district court made no findings as to how Richard spent the $30,000. The written ruling merely states, “In June 2019, [Richard] withdrew $30,000 from the joint account without [Susan’s] knowledge or consent and deposited it into his own personal account.” “We will not imply any missing finding where there is a matrix of possible factual findings and we cannot ascertain the trial court’s actual findings.” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993). Without “adequate findings” on whether Richard used the funds for marital expenses or not, “we cannot affirm,” nor properly review, the court’s decision to offset the $30,000 against Richard in its division of the marital estate. See Fischer, 2021 UT App 145, ¶ 29. Therefore, we vacate this portion of the decision and remand the matter to the district court for it to enter findings on how the funds were spent.
CONCLUSION
¶42 The district court did not abuse its discretion when it excluded Richard’s exhibits for failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure. The district court also did not err in its conclusion that Richard failed to meet the burden of proof for his dissipation claim nor did it abuse its discretion in how it divided the marital estate with respect to Mooring Drive and the Harley-Davidson. We vacate the district court’s decision to offset the $30,000 against Richard when it divided the marital estate and remand the matter for the district court to enter additional findings and to alter its conclusion as may be necessary.
[1] Because the parties share the same surname, we refer to them by their first names, with no disrespect intended by the apparent informality.
[2] Susan invites us to join some other states in drawing a bright-line rule concerning the timing of a dissipation claim and limit pre-separation dissipation claims to those occurring (1) in contemplation of divorce or separation or (2) when the marriage is in serious jeopardy or undergoing an irretrievable breakdown. Under our caselaw, the district court is empowered to consider the “timing of the challenged actions in relation to the separation and divorce” as one of several factors when determining “whether a party should be held accountable for the dissipation of marital assets.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 33, 440 P.3d 757 (cleaned up). We see no need to alter this approach. Assessing timing as one factor among many provides the greatest flexibility to the district court to consider all the circumstances in a particular case, and we believe the district court is in the best position to evaluate the importance of such evidence on a case-by-case basis.
[3] Because the district court directed the parties to submit proposed findings of fact and conclusions of law in lieu of closing arguments, Richard’s argument was preserved for our review.
[4] Indeed, in its oral ruling, the court stated that Richard “lied to the Court about the purchase of the motorcycle.”
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 M.M. (Mother) appeals the juvenile court’s order terminating her parental rights to R.G. (Child). Mother argues she received ineffective assistance of counsel because the court would not allow her lawyer (Counsel) to withdraw from representing her at trial despite the fact that Mother did not appear at trial. Mother has not persuaded us that the court was wrong to deny Counsel’s motion to withdraw or that Counsel was ineffective as a result, and we affirm the court’s termination order.
BACKGROUND
¶2 Child was born on January 12, 2020. The following day, the Division of Child and Family Services (DCFS) received a referral indicating that Mother tested positive for illegal substances both at the time of Child’s birth and during her pregnancy. The referral also reported that Child was Mother’s sixth biological child and that Mother had lost custody of her other five children. Thereafter, a DCFS caseworker put a safety plan in place and Child was allowed to leave the hospital and return home with Mother and Child’s biological father, G.G. (Father).[1] Approximately one month later, the juvenile court found that Mother had abused Child by using illegal substances during her pregnancy and that Child was a sibling at risk of abuse or neglect. Child was removed from Mother’s custody and placed in the custody of DCFS.
¶3 The juvenile court ordered reunification services for Mother. After a year working with her, the court terminated reunification services, finding that Mother had failed to comply with the court’s orders and the service plan and to consistently engage in services. The matter proceeded to a termination trial that took place in November 2021.
¶4 Despite having proper notice, Mother failed to appear at the termination trial. Counsel moved to be released due to this failure, and the juvenile court granted Counsel’s motion. The trial then proceeded by proffer. At the close of trial, the court entered an order terminating Mother’s parental rights, which Mother subsequently appealed. Thereafter, the State, the guardian ad litem (GAL), Mother, and Father filed a stipulated motion for summary reversal, wherein all parties agreed that this first termination trial “failed to comport with due process.” This court granted the motion and accordingly vacated the termination order and remanded for a new trial.
¶5 The second termination trial occurred over the course of three days in April 2022. Approximately three weeks before trial, the juvenile court issued an order informing the parties that the trial would be held in person.[2] In the order, the court noted that Mother had made a “request to appear virtually.” The court granted the request, stating that Mother “may be allowed to attend virtually if she joins the hearing by video and her video remains on camera throughout the hearing.”
¶6 Mother did not appear—virtually or in person—during any part of the three-day termination trial. On the first day of trial, Counsel asked the court for a continuance, arguing that Mother had “a health concern.” But Counsel did not provide any additional information or documentation to support this claim, and the court denied the request, finding that Counsel could not establish that a continuance was warranted under rule 54 of the Utah Rules of Juvenile Procedure.
¶7 The trial then proceeded with Father as the first witness. In the middle of Father’s testimony, Counsel interrupted and asked the court to be “released.” Counsel explained that she was in a “tricky situation . . . attempting to defend a termination petition with no client.” The State and the GAL objected to Counsel’s request to withdraw. Both parties acknowledged that the withdrawal of counsel in the first termination trial had been problematic and that it had likely been a contributing factor in the decision to retry the case.[3] However, the GAL opined that if Counsel complied with the withdrawal process set forth in rule 53 of the Utah Rules of Juvenile Procedure, he would not oppose Counsel’s request to withdraw. But when the court questioned Counsel about whether she had complied with the rule 53 requirements, and specifically whether she had informed Mother that she would be withdrawing, she acknowledged that she had not.
¶8 After considering the parties’ arguments, the court denied Counsel’s motion to withdraw. The court explained that while it understood its decision put Counsel “in a precarious situation,” Counsel had not met the criteria to withdraw pursuant to rule 53. The court asked Counsel to “do the best you can,” and informed her that the court would “readdress [the request] if there’s more information that comes through.”
¶9 Counsel appeared without Mother on the remaining two days of trial. At the close of trial, the juvenile court entered a comprehensive order terminating Mother’s parental rights to Child.
ISSUE AND STANDARDS OF REVIEW
¶10 Mother now appeals the juvenile court’s termination order, asserting that Counsel rendered constitutionally ineffective assistance because Counsel had a “legal conflict” with Mother. Although Mother frames the issue as an ineffective assistance of counsel claim, her argument mostly implicates the propriety of the juvenile court’s decision to deny Counsel’s motion to withdraw. “Whether to allow an indigent [party’s] attorney to withdraw . . . is a matter committed to the [juvenile] court’s sound discretion and will be reversed only for an abuse of discretion.” State v. Scales, 946 P.2d 377, 381 (Utah Ct. App. 1997). “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re S.S., 2015 UT App 230, ¶ 20, 360 P.3d 16 (quotation simplified).
ANALYSIS
¶11 Mother argues the juvenile court’s refusal to allow Counsel to withdraw after Mother failed to appear for trial gave rise to a conflict of interest between Mother and Counsel that resulted in Mother receiving ineffective assistance of counsel. According to Mother, the court’s “erroneous ruling” created a conflict by placing Counsel in a position that required Counsel “to present damaging evidence just to placate [Mother] and demonstrate to the Court [that Counsel] was ‘doing her best.’” In essence, Mother’s argument raises two questions: (1) whether the juvenile court erred in denying Counsel’s motion to withdraw and (2) whether Mother received ineffective assistance of counsel as a result of the court’s ruling. Because we conclude the court did not abuse its discretion in denying Counsel’s motion to withdraw, we likewise determine that Mother did not receive ineffective assistance because of that decision.
¶12 Motions for appointed counsel to withdraw are governed by rule 53 of the Utah Rules of Juvenile Procedure. That rule provides that “[c]ourt-appointed counsel may not withdraw as counsel of record except upon motion and order of the court.” Utah R. Juv. P. 53(b)(2). A motion to withdraw must be made “either in writing or orally before the court at a hearing” and must include
(i) A certification from counsel that the represented party has been informed of the motion to withdraw and their right to counsel; and
(ii)A certification from counsel that the represented party has been informed of their rights to appeal, and the availability of post judgment motions and motion to stay pending appeal; or
( ) The efforts counsel has made to inform the represented party of subsections (c)(1)(i) and (c)(1)(ii).
Id. R. 53(c)(1).
¶13 Here, Counsel moved to withdraw shortly after the termination trial began. After listening to the State’s and the GAL’s opposition to her motion, Counsel admitted to the juvenile court that she could not meet the certification requirements under rule 53(c). Counsel explained that prior to trial, she received a memo indicating that the “main” reason the case had been remanded for a new trial “was the release of counsel” in the first trial. In light of this, Counsel stated, “[I] mention[ed] to [Mother] that it was possible that I would be trying to defend a case, a termination petition without her, without a client. So I have not notified her that the Court would release me.” After considering the parties’ arguments, the court denied Counsel’s motion to withdraw, explaining that Counsel had not made the certifications required under rule 53(c). In addition, the court noted that release under rule 53(b) is discretionary.
¶14 In light of the foregoing, we cannot say the juvenile court abused its discretion in denying Counsel’s motion to withdraw. The court explained on the record the reasons for denying the motion. Importantly, the court found that Counsel had not made the required rule 53(c) certifications supporting the motion, inasmuch as Counsel had admitted that Mother had not been informed that Counsel would be moving to withdraw. Moreover, the court found that even if the proper certifications had been made, the ultimate decision to approve the motion was discretionary with the court. Here, even assuming Counsel could certify that she spoke to Mother about her right to representation and appeal rights, we cannot say that it would have been an abuse of the court’s discretion to deny the motion. Among other reasons the court might have exercised its discretion to deny the motion include that the motion was not made until after the start of trial, despite ample notice of the proceedings; that the release of counsel in the first trial was an issue that had likely been a contributing factor in the need for a remand; and that it was Mother’s conduct in failing to appear at trial, rather than Counsel’s actions, which prompted Counsel to make the motion.[4]
¶15 Notwithstanding the correctness of the juvenile court’s denial of Counsel’s motion to withdraw, Mother contends the representation Counsel provided to Mother in her absence did not amount to effective assistance. “To establish her ineffective assistance of counsel claim, Mother must show that Counsel’s performance was objectively deficient and that Counsel’s deficient performance prejudiced the case.” See In re D.G., 2022 UT App 128, ¶ 9, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023). Because failure to establish either deficient performance or prejudice is fatal to an ineffective assistance claim, we are free to address Mother’s claim under either prong. See State v. Rosen, 2021 UT App 32, ¶ 8, 484 P.3d 1225, cert. denied, 496 P.3d 714 (Utah 2021). Accordingly, we address only the deficient-performance prong here.
¶16 To demonstrate deficient performance, Mother must persuade this court that, considering the record as a whole, Counsel’s performance was objectively unreasonable. See State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. But Mother cannot do so here, where Counsel’s continued participation at trial comported with the juvenile court’s proper denial of Counsel’s motion to withdraw and Mother’s claim that Counsel’s continued representation in her absence harmed her.
¶17 First, Mother was not required to appear at the termination trial. As this court has explained, “there is no absolute statutory or constitutional right to attend the trial in child welfare matters, including termination proceedings.” In re Z.Z., 2013 UT App 215, ¶ 20, 310 P.3d 772 (quotation simplified), cert. denied, 324 P.3d 640 (Utah 2014). “Notice of the proceedings is alone sufficient to allow a [parent] to exercise the right to be present by appearing, or to waive that right through voluntary absence.” Id. (quotation simplified). Here, Mother had actual notice of the proceeding. As Mother’s appellate counsel concedes, “[t]he [termination] trial commenced with an expectation that [Mother] would sign on as a virtual participant to the hearing.” That Mother chose not to appear may have put her at a disadvantage, but it does not follow that Counsel was ineffective as a result.
¶18 Second, despite Mother’s failure to appear at trial, she was still entitled to representation. A parent’s right to counsel at a termination trial is statutorily based. See In re A.E., 2001 UT App 202, ¶ 10, 29 P.3d 31; see also Utah Code § 78B-22-201(1)(b). To safeguard this right, appointed counsel may be properly waived only if “the record as a whole reflects the parent’s reasonable understanding of the proceedings and awareness of the right to counsel.” In re A.B., 2017 UT App 99, ¶ 5, 400 P.3d 1107 (per curiam) (quotation simplified); see also In re A.E., 2001 UT App 202, ¶¶ 12–13. Here, Mother did not discuss with the juvenile court any desire to waive her right to counsel, nor did the court engage in a colloquy regarding a potential waiver. On these facts, it would have been inappropriate for the court to conclude that Mother had waived her right to counsel. By requiring Mother to be represented absent a valid waiver, the juvenile court helped to protect Mother’s interests in a fair trial. Indeed, even without Mother present, Counsel was present to lodge objections, draw attention to any deficiencies in the State’s case, and ensure that Mother’s procedural rights were protected.
¶19 Third, and perhaps most notably, this court has already rejected the notion that a party can assert a claim of ineffective assistance where that party “failed to communicate with counsel between the time of the pretrial hearing and the termination trial and failed to appear at the trial.” In re M.L.M., No. 20070465-CA, 2007 WL 2446497, at *2 (Utah Ct. App. Aug. 30, 2007) (per curiam). Without client participation, counsel is substantially limited in presenting an effective defense. But this fault lies with the client, not with counsel. And this distinction matters. Indeed, a deficient defense caused by counsel’s actions may be grounds for reversal, whereas a mere inability to present the strongest defense— particularly when owing to the client’s failure to appear or to assist—does not warrant reversal. And specifically in this instance, where Mother claims that in order to appease the court rather than protect her client, Counsel allowed negative testimony from Father and called unhelpful and damaging witnesses, Counsel’s inability to present the strongest defense was not the fault of Counsel. Even if we were to agree that Counsel’s performance at trial was somehow deficient—which we do not— it was Mother’s own failure to appear that created the situation.
¶20 In sum, because the juvenile court complied with rule 53 of the Utah Rules of Juvenile Procedure when denying Counsel’s motion to withdraw, the court did not abuse its discretion in denying the motion. Further, the court’s action in properly denying the motion did not result in Mother receiving ineffective assistance of counsel because it was not objectively unreasonable for Counsel to continue to represent Mother at trial after the juvenile court denied the motion to withdraw and Mother failed to appear for trial.
CONCLUSION
¶21 The juvenile court did not abuse its discretion when it denied Counsel’s motion to withdraw, thereby requiring Counsel to represent Mother at trial despite Mother’s absence. In denying the motion, the juvenile court adhered to rule 53 of the Utah Rules of Juvenile Procedure, and the decision was therefore not an abuse of the court’s discretion. And because Mother has not demonstrated how Counsel’s representation was ineffective, nor has she alleged that the juvenile court’s termination analysis was flawed in any other respect, we affirm the court’s order terminating Mother’s parental rights.
[1] Father’s parental rights to Child were terminated at the same time as Mother’s. Because this appeal does not concern Father, we recount the facts that relate specifically to Mother.
[2] Prior to the entry of this order, the trial was scheduled to be conducted remotely, in accordance with the Administrative Order for Court Operations During Pandemic. See Administrative Order for Court Operations During Pandemic, Utah Supreme Court (June 26, 2020), https://legacy.utcourts.gov/alerts/docs/202 00626%20-%20Amended%20Pandemic%20Administrative%20Or der.pdf [https://perma.cc/9KE8-9U7R].
[3] As explained above, the first termination order was vacated based on the parties’ stipulated motion for summary reversal. Consequently, the merits of the first termination order were not briefed, and this court’s order reversing and remanding did not resolve the merits of the issues raised on appeal. Therefore, while all parties acknowledge that the absence of counsel in the first trial was an issue, there is no appellate decision affirmatively stating that this was the basis for reversal.
[4] Mother resists this conclusion, asserting that while rule 53(c) requires “certification” by counsel about certain advisements to the client, this court “must weigh the purpose, practicality and advisability of strict compliance [with rule 53(c)] against the institutional harm of ‘setting appointed counsel up’ to be forced into the untenable position [Counsel] was placed in this case.” But Mother’s position ignores that “it is our duty and practice to adhere to the plain language of a rule.” Cougar Canyon Loan, LLC v. Cypress Fund, LLC, 2020 UT 28, ¶ 13, 466 P.3d 171 (quotation simplified). Because of this, “where an appellant presents compelling reasons for a policy shift that is not currently supported by the plain language of our rules of procedure, we do not rewrite the rule on the fly. Rather, we refer the issue to the appropriate rules committee for additional study, and, if appropriate, we amend the language of the relevant rule through our normal rule-making process.” Id. ¶ 15 (quotation simplified).
Your spouse must be served with the summons and divorce complaint or petition before the case can proceed.
In my jurisdiction (as I believe it to be the case in all jurisdictions (you’ll need to review the law regarding who can serve the summons and divorce complaint or petition to be sure) you cannot serve your spouse yourself. A non-party to the case is required to serve the summons and complaint/petition.
Any time any lawsuit is filed against a defendant or respondent, the defendant/respondent must be served with legal process to ensure due process of law. What does “served with legal process” mean?
Black’s Law Dictionary defines it this way:
service of process. The formal delivery of a writ, summons, or other legal process, pleading, or notice to a litigant or other party interested in litigation; the legal communication of a judicial process
processn. (14c) 2. A summons or writ, esp. to appear or respond in court <service of process>. — Also termed judicial process; legal process.
“Process is so denominated because it proceeds or issues forth in order to bring the defendant into court, to answer the charge preferred against him, and signifies the writs or judicial means by which he is brought to answer.” 1 Joseph Chitty, A Practical Treatise on the Criminal Law 338 (2d ed. 1826).
Being served with process is essential to due process of law. What does due process mean? Black’s Law Dictionary defines it this way:
due process (16c) The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case. — Also termed due process of law; due course of law. See FUNDAMENTAL-FAIRNESS DOCTRINE.
“The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice;
“Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Thomas M. Cooley, A Treatise on the Constitutional Limitations 356 (1868).
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections … The notice must be of such nature as reasonably to convey the required information.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950).
One of the hardest documents for a Utah divorce litigant to prepare is the financial declaration. I am amazed at the number of clients who don’t take this document and its preparation seriously.
If you file for divorce or your spouse files for divorce, your divorce case will require you to provide a lot of documentation for various purposes as your life (and the life of your spouse and children, if you have minor children) will come under the magnifying glass. To avoid being fried like an ant, you need to produce complete and completely accurate documentation in preparing your financial declaration.
How is this done? It is a little comical, but it really comes down to accounting as best as you possibly can for every penny that comes in and that goes out. Every meal out. Every oil change. Every gasoline fillup. Every utility bill. Every dollar earned from every source.
Why should you worry about every red cent? Because you will be nickeled and dimed by opposing counsel and even by the court. Opposing counsel quite often (more often than not, frankly) wants to misconstrue confuse your income, expenses, and debts for his/her client’s benefit. The court often assumes that you are lying and/or wants to side with your spouse or against you. They are looking for any reason to call your credibility into question. And if you carelessly prepare your financial declaration, fail to provide an accurate financial declaration, and fail to support your numbers with verifiable documentation, you give opposing counsel and/or the court weapons to use against you.
“Ah,” some of you say, “but I want my financial declaration to be inaccurate so that I appear a lot poorer than I really am!” That way, if I’m the one who might pay alimony, I will pay less. And if I’m the one who might receive alimony, I will get more. Truth be told, it’s possible to lie in your financial declaration and get away with it. Truth be told, it’s harder than most people think. Truth be told, most people who lie (or who don’t lie but instead provide a half-baked, crappy financial declaration) get burned by it. Better to take the hit for being honest than risk an even bigger hit for lying. And do bear in mind that being honest is not a matter of “no good deed goes unpunished”. When you are honest, thorough, complete, and accurate in your work, that builds your overall credibility in your case. The person who owns up to his/her sins and sincerely repents gets due credit more often than not. The court thinks, “He/she was scrupulously honest in his/her financial declaration (even when he/she might could have fudged and escaped detection), so he/she is probably honest about the other things he/she tells me.” That’s more valuable than you know.
Now, if being honest always “won,” nobody would lie. You may experience your spouse lying through his/her teeth and getting away with it. It can and does happen. Still, it doesn’t justify you doing wrong or taking the risk of you being the one who gets caught in a lie or who gets hurt by turning in an incomplete and inaccurate financial declaration.
You’ll hear the argument that a PGAL should be appointed for a child because we don’t want to traumatize children by having them testify on the record. Where is the evidence that a child testifying for the record so traumatizing to the child as to be unthinkable, causes irreparable damage, or that the value of the testimony is outweighed by the adverse effects on the child?
You’ll hear the argument that a judge is not qualified to question children. Oddly, you’ll hear that argument from the judge. And the argument is patent nonsense. Judges are authorized by the Utah Code to interview children. The Utah Code permits children to testify if and when they testify voluntarily. Does that come as any surprise?
You’ll hear the argument that what a child may say when questioned may go beyond scope of what is relevant. OK, that’s certainly possible, but it’s hardly unusual for a witness, adult or child, to testify beyond the scope of the examination. That’s been happening (and will continue to happen) with witnesses for centuries. When that happens with a child witness, objections are raised, the witness is instructed to stay within the scope of examination, we get back on track, and we move on. To suggest that children must not be questioned because they may ramble or talk about irrelevant things is silly.
You’ll hear the argument that the best way to ensure that a child’s voice is heard is by having someone else speak for the child (in the form of a PGAL). That argument is invalid on its face.
You’ll hear the argument that a PGAL has access to evidence and facts that the parties and/or court don’t. But that’s simply not true.
You’ll hear the argument that a PGAL can make arguments on behalf of a child in court. OK, sure, but why would that be a reason to prevent the child client from testifying for himself too? So that his/her testimony is known for the record unfiltered, complete, and unadulterated? We don’t bar other people who are represented by attorneys from testifying.
You’ll hear the argument that a PGAL is a “trusted adult,” someone a child can talk to. But a judge isn’t a trusted adult a child can talk to?
You’ll hear the argument that a judge won’t hear from therapists or other collateral contacts while a PGAL will, but that’s simply not true. The bottom line is that PGALs are being appointed to prevent a child’s testimony from being obtained for the record, from being known for the record, to prevent that child’s testimony from being evidence on the record in the case, and thus to prevent that evidence from influencing the decision of the court. That’s indefensible.
My opinions on prenuptial agreements have changed over the course of my career as a divorce and family lawyer over the past 26 years.
Had you asked me whether I was an advocate for prenuptial agreements at the beginning of my career, I would have told you that, with the exception of divorces who are remarrying, exceptionally wealthy people, widows and widowers, I was against the notion of young couples with their whole lives ahead of them signing prenuptial agreements.
I have married once and only once. I have never divorced. God willing, I will never have need to divorce. My greatest joys in my life have unquestionably come from being a husband and father. I will literally be eternally grateful to my parents who stayed married and did their best to be the loving, sacrificing, dedicated spouses and parents they were. Truer words were never spoken than “No other success can compensate for failure in the home.” (David O. McKay) The best thing that can happen to a child is being reared in a nuclear family. Critics of the nuclear family who cite the horrors of dysfunctional families cannot be taken seriously. For every dysfunctional family, there are thousands of successful families, and it’s the overwhelming desire of people to have two loving parents and siblings and to have a family of one’s own.
My thinking when I was a younger attorney was that having an exit strategy for a marriage that hasn’t even occurred yet (in the form of a prenuptial agreement) is a terrible way to instill any hope and confidence in that marriage. I still feel this way, but my views on the potential benefits of a prenuptial agreement have changed recently.
I am still opposed to prenuptial agreements that make it easier for a couple to fall apart instead of pulling together when the going gets tough. No marriage will be free of challenges and heartbreaks. Any fool who expects perfection of his or her spouse is guaranteed to be disillusioned and disappointed. Marriages succeed and grow strong only when spouses overcome (sometimes the best they can do is adapt to) failure and weakness. Couples who sign a prenuptial agreement believing that it will spare them from risk and pain and loss are naïve.
Yet I wonder whether there may still be some value in prenuptial agreements for young people who are marrying for the first time. And what might that value be? Avoiding, or at least reducing one’s interaction with, the train wreck that is the legal profession and the legal system.
As I indicated above, prenuptial agreements should not make marriages any harder by making divorce too easy.
But the legal system and the legal profession have made getting a divorce, when a divorce needed or perhaps even warranted, far too expensive, time-consuming, and unjust. Too many divorce lawyers (the majority, in my experience) view a successful divorce through the lens of “Just how much can we get away with?” Too many judges and other judicial officers approach divorce cases with bias, cynicism, apathy, and indifference (so it’s no wonder when the decree of divorce fails one or both parties and/or their children).
A prenuptial agreement that provides that the couple will, in the unfortunate event of divorce, abide by an ethic of reciprocity (i.e., do as you would be done by), do their best to avoid unnecessary litigation, and perhaps even agree to submit to arbitration (as opposed to court) any divorce disputes that they cannot resolve through agreement, may be one of the kindest things to spouses could do for one another.
I will answer this question in the context of Utah law because I practice law in Utah.
The term “prenuptial agreement” means “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” (See Utah Code § 30-8-2. Definitions)
Dictionaries define, correctly, a prenuptial agreement as an agreement a couple makes before they marry that establishes rights to property and support in the event of divorce (or death).
“Prenuptial” means before (pre) marriage (nuptial). So, a prenuptial agreement cannot be created after marriage. But there is also such a thing as a postnuptial agreement, meaning an agreement that a married couple makes after marriage that establishes rights to property and support in the event of divorce (or death). As long as the postnuptial agreement meets the legal requirements for enforceability, a married couple can enter into a postnuptial agreement in Utah.
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.
HARRIS, Judge:
¶1 This case arises from a protracted and multi-faceted dispute among siblings and stepsiblings regarding the use and distribution of the assets in a trust created by Dean Harding. After four years of litigation and a six-day bench trial, the trial court determined that Rickie Taylor, acting as trustee of his deceased stepfather’s trust, engaged in numerous acts of self-dealing and other breaches of fiduciary duties resulting in more than $5 million in damages. After trial, the court also determined—sua sponte—that Margene Harding (Taylor’s mother and the lifetime beneficiary of the trust) had been vicariously liable for Taylor’s actions, and therefore held Margene’s estate (the Estate) jointly and severally responsible for the damages Taylor caused. The court then entered judgment against Taylor and the Estate jointly and severally, and in favor of petitioner Robert Harding, in amounts approximating $5 million. Taylor and the Estate now each separately appeal.
¶2 In his appeal, Taylor raises several challenges. First, he takes issue with the court’s order denying his motion to amend his answer to add certain additional affirmative defenses. Second, he challenges the court’s summary judgment order in which the court determined, as a matter of law, that Taylor made unlawful distributions from the trust. Next, Taylor appeals the court’s orders excluding his expert witnesses. Finally, Taylor makes several complaints about the court’s judgment against him, including the amount of damages ordered. As discussed below, we reject most of Taylor’s complaints, although we find merit in one aspect of his challenge to the court’s damages award.
¶3 In its appeal, the Estate also raises several issues for our consideration. First, it challenges the court’s sua sponte determination that it should be jointly and severally liable for the damages caused by Taylor’s wrongdoing. Second, the Estate appeals the court’s decision regarding the appropriate interest rate to be applied to a debt two of Dean’s children owed the trust. Third, it raises several issues with the form of the judgment. Finally, it takes issue with the court’s decision not to award it attorney fees. We find merit in many of the issues the Estate raises.
¶4 For the reasons discussed herein, we affirm some of the court’s rulings, but detect error in others, and therefore vacate the court’s judgment and remand for further proceedings.
BACKGROUND
The Trust and Dean’s Death
¶5 During his lifetime, Dean Harding was a successful businessman who owned and operated a commercial heating, ventilation, and air conditioning company. With his first wife, Dean[1] had three children: Robert G. Harding, Jill H. Kendall, and Jeana Vuksinick. In the mid-1980s, after Dean’s first wife had passed away, Dean married Margene Harding. Margene had several children from previous marriages, including Taylor. After Dean married Margene, Taylor became Dean’s stepson and the stepsibling of Robert, Jill, and Jeana.
¶6 In 1994, in an effort to manage his assets and plan his estate, Dean created the A. Dean Harding Marital and Family Trust (Trust). The beneficiaries of the Trust were Dean’s “surviving spouse”—Margene—and Dean’s three children. Under the terms of the Trust, upon Dean’s death, and if Dean’s “spouse survives” him, “all property subject to [the Trust] shall be divided into two parts known as the marital share and the family share.” Dean’s surviving spouse was to have the use of certain Trust assets during her lifetime, and then after her death the Trust assets were to be distributed to Dean’s three children “in equal shares.” Margene’s own children—including Taylor—were not direct beneficiaries of the Trust.
¶7 Any income earned by any part of the Trust was to be paid to Dean’s spouse, and any excess “undistributed” income from the marital share was, upon the spouse’s death, to pass to the “spouse’s estate.” But aside from such income, “all other properties of” the Trust, including all unused principal, were to pass to Dean’s three children upon the spouse’s death.
¶8 With regard to Trust principal, the Trust documents did not authorize any distribution of principal out of the marital share; those documents state that only the surviving spouse was empowered to receive—but not empowered “to appoint”—“any part of” the marital share’s property, but that even she was empowered to receive “income only.” With regard to the principal assets of the family share, however, the situation was different: to the extent that the Trust’s income was not sufficient to meet the surviving spouse’s ongoing “support and maintenance” needs, as viewed through the lens of “her accustomed manner of living,” the trustee was authorized, in his “discretion,” to use the family share’s principal to meet those needs. In making the determination about whether to dip into family share principal to meet the spouse’s needs, the trustee was to consider any “income or other resources” that the spouse had at her disposal, and was to “be mindful of the fact that [Dean’s] primary concern in establishing the [T]rust is [Dean’s] spouse’s welfare and that the interests of others in the [T]rust are to be subordinate to [Dean’s] spouse.”
¶9 The Trust also allowed for “the primary residence owned by” Dean at the time of his death to be “allocated to” the marital share. In that event, Dean’s surviving spouse would be allowed to “reside personally upon the said premises” during her lifetime but would be responsible for paying property taxes, maintaining “adequate insurance,” and “perform[ing] such repairs and maintenance as may be required to maintain the property in the condition it was maintained prior to [Dean’s] death.”
¶10 Dean’s will—created contemporaneously with the Trust— contained a “spendthrift clause” that all parties now agree was incorporated into the Trust. This provision mandated, in relevant part, that no “interest of any beneficiary” in the Trust “be liable . . . for the debts, contracts, liabilities, engagements, obligations or torts of such beneficiary.”
¶11 Dean passed away in January 2004. When he created the Trust, Dean had named himself as trustee, and had named an accountant (Accountant) as successor trustee. Upon Dean’s death, Accountant became the trustee of the Trust, and he estimated that the Trust contained a total of about $5.8 million in assets. Accountant further allocated some $1.5 million to the family share and about $4.3 million to the marital share. Accountant also allowed Margene to continue to reside in Dean’s residence.
¶12 When Dean died, he was the owner of individual retirement accounts (IRAs) that were valued at approximately $1.5 million. These IRAs were among the assets that Accountant allocated to the marital share of the Trust. Shortly after Dean’s death, Accountant signed certain forms clarifying that the Trust was the primary beneficiary of the IRAs. No such forms executed before Dean’s death are part of the record in this case. But even before Dean’s death, the account statements from the IRAs clearly referenced the Trust as the primary beneficiary.
The Settlement Agreement and the Note
¶13 Soon after Dean’s death, various disputes arose involving the Trust’s beneficiaries, and in June 2004, due to “growing contention,” Accountant resigned as trustee. Margene then appointed her son—Taylor—as the new trustee of the Trust. Later, Margene also gave Taylor power of attorney over her own personal finances, which power Taylor utilized to, among other things, write checks (or otherwise authorize withdrawals) from her personal bank accounts.
¶14 Robert, Jill, and Jeana questioned Taylor’s status as successor trustee, and Taylor took issue with an undocumented $1 million loan (the Loan) that two companies controlled by Robert and Jill had taken from the Trust prior to Dean’s death. Both sides filed competing petitions in court raising these and other disputes, and eventually agreed to resolve their differences in a settlement agreement (the Settlement Agreement). Among other things, the Settlement Agreement provided that Taylor would be allowed to continue as trustee of the Trust, but he would be required to “provide a full accounting . . . of the Trust assets and affairs at least annually,” provide “quarterly trust brokerage statements,” and “communicate with” Robert, Jill, and Jeana through their designated liaison—Jeana—“at least twice per month.” Ultimately, in the ensuing years, Jeana met with Taylor about four times per year to obtain information about the Trust, and neither Jeana nor her siblings, prior to 2015, ever asked for additional information from Taylor.
¶15 With regard to the Loan, Robert—both personally and on behalf of the companies—and Jill agreed to “execute a promissory note memorializing the undocumented Loan,” and agreed to pay “[a]ccrued interest” at a “variable” rate equivalent to “the margin loan rate assessed by S[a]lomon Smith Barney on Brokerage Account No. 298-02528-13 303 . . . as may fluctuate from time to time until paid in full.” The promissory note they later signed (the Note) also stated that interest payments were to be made quarterly, and that if the Note were to be in “default” that “interest shall accrue at one percent (1%) above” the variable rate specified. Interest paid on the Note was to be considered income from the marital share of the Trust and—under the terms of the Trust—paid to Margene or, if undistributed at her death, to the Estate. Robert and Jill signed the Note as personal guarantors, but each did so “only for one-half (1/2) of the remaining balance plus interest, and only to the extent of [their] inheritance.”
¶16 The Settlement Agreement also had an attorney fees clause, which provided that if any party to the agreement were “required to retain counsel to enforce any of the provisions of this Agreement,” the party “determined to be in substantial default in any subsequent action shall pay the prevailing [party] its costs and reasonable attorney fees.” The Note had such a clause too, pursuant to which Robert and Jill “promise[d] to pay all reasonable costs and expenses of collection of any amount due under this Note including reasonable attorney’s fees.”
A Decade of Taylor’s Trust Administration
¶17 Following execution of the Settlement Agreement, Taylor served as trustee of the Trust for the next thirteen years (until he was removed by court order in January 2018). During that time, he took numerous actions that were later questioned by one or more of Dean’s children.
¶18 Upon assuming the role of trustee, Taylor made little effort to familiarize himself with much of what his duties entailed.[2] An attorney hired by the Trust provided Taylor with a document setting forth some of his duties as trustee, but he read only the pages the attorney said were important, and he was later unable to recollect any of the content of the document. Taylor also later stated that he was unaware of what fiduciary duties are. At one point, when asked whether he had read the Trust documents before beginning to authorize distributions of Trust assets, Taylor stated that he “left that . . . to the attorneys and the accountants.”
¶19 Throughout his tenure as trustee, Taylor was largely unaware whether the distributions he authorized came from the marital or family share of the Trust. He later testified that he was unaware of any written guidelines indicating when it was appropriate to distribute money from the family share. As noted above, the Trust allowed Taylor to distribute family share principal only when the trust income and Margene’s other assets were insufficient to meet Margene’s accustomed needs, but Taylor never analyzed Margene’s needs to determine whether principal distributions were appropriate. Throughout the thirteen years he served as trustee, Taylor never tracked the distributions of principal. In addition, with regard to some of the distributions Taylor made from the Trust—including several five-figure payments—Taylor was later unable to explain the destination or purpose of the payments.
¶20 Taylor was also unaware of whether the required minimum distributions (RMDs) he made from the IRAs were considered income and therefore payable to Margene, or were considered principal and therefore subject to the Trust’s restrictions on distributions of principal. During his time as trustee, Taylor simply paid 100% of the RMDs from the IRAs to Margene, as if they were entirely composed of income. He later learned, however, that pursuant to the provisions of Utah’s Uniform Principal and Income Act (UPIA), only a small portion of the RMDs could properly be classified as income. See Utah Code § 22-3-409.[3]
¶21 During his years as trustee, Taylor used his power of attorney over Margene’s personal finances to make transfers of money from Margene’s accounts (which were largely funded by Trust assets) to accounts controlled by Taylor, and Taylor was unable to explain the reason for many of these transfers. Examples of these transactions include payment for third-row Utah Jazz season tickets in the amount of $74,945; a $123,470.59 payment to a business Taylor owned; purchase of an Arabian horse; a $93,600 payment to Taylor’s sister; and $62,700 in “[f]unds directed to Taylor personally.” Some of these transfers he characterized as “gifts” from Margene to him or his siblings.
¶22 Taylor also failed to properly maintain vehicles owned by the Trust. A motorhome owned by the Trust was used by Taylor’s siblings until, while being used by Taylor’s nephew, it was stolen. A truck and “another car,” also owned by the Trust, were gifted by Margene to Taylor’s sister. And another Trust vehicle was totaled by Taylor’s son.
¶23 While Taylor was acting as trustee, Robert’s ex-wife served a writ of garnishment on the Trust regarding money Robert allegedly owed her in their divorce case. Robert claims to have first become aware of his ex-wife’s actions when a Trust attorney informed him that his ex-wife had served the writ on the Trust. After receiving notice, Robert claims that he hired an expert “to analyze the propriety of the amount of [her] claim” and that he obtained legal counsel to potentially dispute or negotiate the money owed. However, under the threat of the writ of garnishment, Taylor authorized payment from the Trust of some $250,000 to Robert’s ex-wife. Moreover, Robert’s ex-wife had previously obtained approximately $35,000 from the proceeds of a short sale of Robert’s home. Robert took issue with Taylor’s authorization of the payment out of the Trust to his ex-wife, believing that the payment resulted in his ex-wife receiving at least $35,000 more than she was entitled to and that it “undercut any negotiation he had with [her] regarding the [total] amount owed.” However, Robert’s ex-wife did not make any further claims against Robert for the money owed, and Robert later testified that the Trust’s “distributions of funds to [his ex-wife] did extinguish his debt to her.”
¶24 In the years after the Loan was memorialized in the Note as part of the Settlement Agreement, Robert and Jill (and their companies) made only two payments on the $1 million Note. Those payments totaled about $58,000 and appeared to include interest calculated at a 2% rate. But no other payments were made, and the two companies involved eventually went out of business. No party gave the Trust any notice of the companies’ dissolution, so the Trust, perhaps understandably, never made a claim on any of the companies’ assets. A Trust attorney did send a notice of default in 2006. But the Trust never took any other steps to collect on the Note from the companies (prior to dissolution) or from Robert and Jill (as guarantors), and the Note (both principal and interest) remained unpaid until after Margene’s death.
Margene’s Death and the Ensuing Distributions
¶25 Margene passed away in February 2015, and Taylor was appointed personal representative of her estate. The terms of the Settlement Agreement required Taylor to make final distributions of Trust assets within sixty days of Margene’s death, but he did not do so within that time period. About six months after Margene’s death, Taylor made a partial distribution of $775,000 (before deductions) to each of the three beneficiaries. Robert didn’t actually receive any money, though, because Taylor deducted $524,279.25 from both Robert’s and Jill’s distributions to account for the unpaid principal (but not the unpaid interest) on the Loan, and deducted an additional $250,720.75 from Robert’s tally because of the payment made by the Trust, on Robert’s behalf, to Robert’s ex-wife. Jill received a payment of $250,720.75, and Jeana received the full $775,000. Later, in 2016, Taylor was ordered to transfer nearly all the remaining Trust assets to Dean’s three children, and he did so by making a distribution to each of them in the approximate amount of $608,000.
The Lawsuit and the Two Competing Petitions
¶26 In September 2015, Robert filed a petition seeking “full distribution” from the Trust, a “full accounting” of Trust expenditures, and “damages resulting from breach of trust.” The petition named the Trust, Taylor, the Estate, Jill, Jeana, and Robert’s ex-wife as respondents. As to Taylor, Robert alleged that Taylor had unlawfully distributed principal from the Trust, and that at least some of these unlawful distributions had been made “on Margene’s behalf.” As to his ex-wife, Robert alleged that the payment made to her from the Trust violated the spendthrift provision and “interfered with and frustrated [his] settlement negotiations with” her.[4] And as to the Estate, Robert’s only allegation concerned the marital home; he alleged that “Margene failed to repair and maintain the [home] in the condition it was maintained prior to Dean’s death.” He made no other substantive allegations against the Estate, and did not assert that Margene or the Estate was or should be liable for Taylor’s actions.
¶27 In his prayer for relief at the end of his petition, Robert requested a full accounting, and asked that the court order Taylor to make distributions to him and his two siblings as required by that accounting. He also asked the court to order Taylor to “take immediate action to recover the funds distributed to” Robert’s ex-wife. He requested damages against “the Trust and/or Trustee” resulting from any unlawful distributions Taylor had made from the Trust. Against the Estate, he sought only damages “for the loss in value of” the marital home, as well as “a return of principal wrongfully distributed from the Trust.” Although Jill and Jeana were listed as respondents, the petition did not set forth any claims against or requests for relief from them; indeed, as noted, the petition asked the court to order distributions to all three of Dean’s children.
¶28 The Estate filed a counter-petition against the Trust, Robert, and Jill. The petition sought an order compelling Robert and Jill to pay the interest owed on the Loan to the Estate, pointing out that interest is classified as income from the marital share of the Trust and is, under the terms of the Trust, payable to the Estate (whose heirs include Taylor) upon Margene’s death. The Estate’s petition suggested that the total amount of interest owed, at the time the petition was filed, was more than $630,000. With regard to the Trust, the Estate simply asked that “any amounts still owing” to the Estate from the Trust be paid. And in this filing, the Estate included an “objection to” Robert’s petition, arguing that Robert’s prayer for relief addressing the Estate should be stricken “when no such allegations are made in the petition itself.”
¶29 Taylor filed an “objection and response” to Robert’s petition, in which he admitted certain of Robert’s allegations and denied the rest. He set forth no affirmative defenses of his own, although he did “join[]” in the defenses set forth in the response filed by Robert’s ex-wife. In her response, Robert’s ex-wife set forth nine separate affirmative defenses, including the allegation that Robert’s “claims are barred by the statute of limitations for objecting to and/or opposing the” writ of garnishment, “and by the doctrine of laches.”
Pretrial Motions
¶30 Following the filing of the two competing petitions and the responses, the litigation entered the discovery phase. The trial court issued scheduling orders setting certain deadlines, and the parties exchanged written discovery, took several depositions, and attempted mediation.
¶31 About nine weeks prior to the end of the fact discovery period, Taylor filed a motion asking for leave to amend his response to add several specific affirmative defenses, including a claim that he “had a good faith basis for his actions” and a claim that Robert’s petition was “barred by applicable statutes of limitation, including, but not limited to” Utah Code sections 78B2-305 and -307. In the memoranda supporting his motion, Taylor never asserted that probate petitions aren’t pleadings subject to the usual rules of amendment. Robert opposed Taylor’s motion, arguing that Taylor provided no justification for the delay, that waiting to amend was a “dilatory move” made at least in part to “evade [Robert’s] discovery requests,” and that Robert would be prejudiced because of the little time left in the fact discovery period. After full briefing, the court held a hearing to consider Taylor’s motion, and at the conclusion of the arguments denied the motion from the bench. The court’s minute entry recites that the motion was denied “[f]or reasons as stated” on the record. But the record submitted to us does not include a transcript of this hearing. After the hearing, the court signed an order memorializing the ruling, therein briefly stating that it had denied Taylor’s motion because “adequate justification has not been provided” and because it considered Taylor’s delay “unreasonable.” Taylor had attempted to justify the amendment, at least in part, by asserting that he had intended his incorporation of Robert’s ex-wife’s affirmative defenses to include “all applicable statutes of limitations and laches defenses.” The court rejected this justification as “faulty,” determining that Robert’s ex-wife’s defense was “limited in scope to one specific issue,”
namely, the writ of garnishment, and that Taylor’s incorporation of that defense did not serve to indicate to Robert that Taylor was asserting any different time-based defense.
¶32 Later, Robert moved for partial summary judgment on the narrow question of whether Taylor had violated the “terms of the Trust . . . by invading the principal of the” Trust’s marital share, and had thereby breached his fiduciary duties. In particular, Robert asserted that Taylor had made more than $2.2 million worth of “improper distributions” of principal out of the Trust’s marital share—some $1 million of which involved distributions from the IRAs, and some $1.2 million of which involved distributions from other sources—all of which were contrary to the Trust documents’ command that no such distributions were authorized, and that these actions constituted breach of fiduciary duty. Robert included specific details of the alleged distributions and supported his allegations with bank statements.
¶33 In response, Taylor did not deny making distributions of principal from the marital share, and he in fact admitted to making “over distributions” of principal that “may have been improper,” but argued that the distributions were nevertheless “valid” for various reasons. For instance, he argued that the distributions were valid, at least to some extent, because he was authorized to distribute principal from the family share at his discretion. And with regard to the IRA distributions, Taylor asserted that he relied on the advice of legal and accounting professionals, and that his actions were therefore reasonable, and he asserted that it was unclear whether the Trust was even the proper owner of the IRAs. Taylor also disputed the amount of the distributions he had made from principal. In reply, Robert pointed out, among other things, that Taylor had not included an “advice-of-counsel” affirmative defense in his responsive pleading, and that the court had already rejected his attempt to add additional affirmative defenses, including specifically a defense that he “had a good faith basis for his actions.” Robert thus asserted that Taylor had waived his opportunity to plead an advice-of-counsel defense.
¶34 After full briefing on the motion, the court held oral argument, and in an oral ruling at the conclusion of the hearing granted Robert’s motion, at least in part. The record submitted to us does not include a transcript of this hearing, so the details and scope of the oral ruling are unknown to us. In an order entered about a month later that was intended to memorialize the oral ruling, the court first noted that the Trust authorized Margene to receive “income only” from the marital share, and then concluded that, “[b]ased on . . . Taylor’s admissions and the evidence before the court, . . . Taylor made unlawful distributions of principal from the [marital share] to Margene.” But that was as far as the court went; it recognized that genuine issues of material fact remained regarding, among other things, the amount and calculation of the unlawful distributions, as well as whether Robert and Jill owed money to the Trust or to the Estate related to the Note. The court reserved all of those issues for trial. And at least in its written ruling, the court made no mention of Taylor’s claimed advice-of-counsel defense.
¶35 The court’s order also implicitly rejected Taylor’s argument that the Trust was not the owner of the IRAs, stating that the marital share of the Trust “included several [IRAs]” and that “[t]he required minimum distributions of the IRAs were paid to” the marital share and transferred to Margene. The court shed additional light on this matter in another order issued the same day resolving a separate motion that Robert had filed; in that other order, the court determined that the Estate “is not the owner or beneficiary of the IRAs.” This decision was driven by the court’s determination that the Estate had “fail[ed] to provide any admissible evidence to create a genuine issue of fact” with regard to Robert’s assertion—amply supported by the record—“that the IRAs were properly transferred to and owned by the . . . Trust after Dean’s death.”
¶36 Around the same time, Robert also moved for summary judgment regarding the payment Taylor had authorized to Robert’s ex-wife. After briefing and argument, the court held that the payment violated the spendthrift provision as a matter of law, but that “[t]here are disputed facts regarding,” among other things, “the amount of damages, if any,” and concluded that those issues were reserved for trial. The court, however, noted that “equity prevents” giving Robert a “windfall of $250,000,” and that factual questions remained regarding whether Robert “suffered any interest losses that he . . . may have been entitled to if . . . the money had been kept longer or there had been a [lower amount that his ex-wife] would’ve accepted.”
¶37 There were also pretrial skirmishes regarding expert witnesses. When the time came for Taylor to designate experts, he designated three: a legal expert and two accounting experts. Robert elected to receive written reports from the accounting experts, but opted to take the deposition of Taylor’s proffered legal expert. Taylor did not ever submit expert reports from his two proffered accounting experts. On Robert’s motion, and because Taylor failed to submit reports as required, the court later excluded Taylor’s accounting experts from testifying in Taylor’s case-in-chief, although the court did allow one of them to testify at trial as a rebuttal witness.
¶38 Robert also asked the court to exclude the proffered testimony of Taylor’s legal expert, arguing that the court “should not allow a local attorney to tell [it] how to interpret” the Trust documents. The court granted this motion in an oral ruling made at a hearing; it later memorialized that ruling in a brief written order stating simply that, “[a]fter argument by counsel and review of the briefings filed by the parties, the Court grants [Robert’s] Motion in Limine excluding all legal expert testimony at trial.” The record submitted to us does not contain a transcript of the hearing at which the court rendered its oral ruling, nor does it contain any additional elucidation of the court’s reasoning in granting Robert’s motion to exclude Taylor’s legal expert.
¶39 While Jill and Jeana each hired counsel and participated in the litigation, neither Jill nor Jeana filed their own petitions or made any claims of their own against Taylor; indeed, as noted, they were included as respondents in Robert’s initial petition. But as the litigation went on, Jill and Jeana began to align themselves more and more with Robert; in its post-trial findings, the court observed that, by the time of trial, Jill’s and Jeana’s “interests were eventually aligned with Robert’s.” About two years into the litigation, and recognizing some uncertainty about whether Jill and Jeana were stating claims, Taylor filed a motion attempting to clarify matters and limit Robert’s damages “to his one-third beneficial interest or share of the Trust.” Robert, Jill, and Jeana all separately opposed this motion. In his opposition, Robert stated that, even though he was the only one of Dean’s children who had filed a petition, he was seeking damages “for the benefit of all beneficiaries—[Robert], Jill and Jeana.” After full briefing, the court held argument to consider Taylor’s motion, and denied it in an oral ruling at the conclusion of the hearing. The record submitted to us does not include a transcript of this hearing. A few weeks later, the court memorialized its oral ruling in a written order, concluding that Robert “has standing to assert claims on behalf of all of the Trust beneficiaries” and that “[a]ny damages that are ultimately found against Taylor are not limited to [Robert’s] one-third beneficial interest.”
¶40 As the time for trial grew near, Robert filed a motion to bifurcate, asking the court to separate the trial of the Estate’s claims—chiefly, for interest on the Loan—from the trial of Robert’s claims for damages relating to improper distributions of Trust principal. In this motion, Robert suggested that the claims stated in his petition against the Estate—regarding the marital home—were “likely resolved” in light of a recent ruling the court had apparently made regarding the costs to repair the home.[5] Thus, Robert argued, “the only issue remaining” with regard to his petition “is the amount of damages to be awarded against Taylor as the Trustee of the Trust,” and therefore in Robert’s view the Estate “should not be involved in” the trial of the claims set forth in his petition. The court denied the motion, noting that the case was scheduled to be tried to the bench and stating that “the court is capable of keeping separate the testimony of the various witnesses” regarding the Estate’s petition and Robert’s petition.
¶41 Also prior to trial, on Robert’s motion, the court issued an order removing Taylor as trustee of the Trust. In that same order, the court replaced Taylor with two co-trustees: Robert and Jill.
The Trial
¶42 The issues remaining in the case were tried to the bench in March and April 2019. During the course of the trial, the court heard fact testimony from Robert, Jill, Jeana, and Robert’s current wife, as well as from Taylor. The court also heard testimony from financial experts, one retained by Robert and one by the Estate, as well as rebuttal testimony from one retained by Taylor. In addition, the court heard testimony from an accountant and an attorney who had provided advice to the Trust during Taylor’s tenure as trustee. After the completion of the parties’ four-day evidentiary presentation, the court scheduled time for the parties to present extensive closing arguments, which took place over another two days the following week. At one point during closing arguments, Jeana’s attorney made an oral motion “to conform the pleadings to the evidence that [Jeana] is a one-third beneficiary of the [T]rust, who essentially has been acting as a Petitioner in this case.” Over the Estate’s objection, the court ruled that Jeana “is a Petitioner,” even though the court was not allowing her to “assert any affirmative claims,” and that Jeana had “a third interest, as a beneficiary,” in the case. After closing arguments, the court then took the matter under advisement, and asked the parties to submit proposed findings of fact and conclusions of law that were stipulated “on as many points as possible.”
Post-Trial Developments
¶43 Perhaps predictably, the parties were unable to reach agreement on any matter in the findings and conclusions, and by mid-May they had each submitted individual proposed findings instead. In Robert’s set of suggested findings, he did not propose any finding or conclusion that the Estate was (or should be) vicariously liable for Taylor’s actions, although Robert did propose that the court “impose[] a constructive trust on the assets of the Estate” and order that “all remaining [Estate] assets payable or distributable to Taylor be used to pay the outstanding judgments in this case.” The court reviewed the parties’ respective findings and began work on its own written ruling.
¶44 For the next six months, the court held periodic status hearings approximately every sixty days—in July, September, and November—sometimes asking for “clarification” or additional information on issues, and on one occasion stating simply that it had called the hearing to let the parties know that it “need[ed] a little additional time to finish” the ruling and offering its view that “this hearing will technically give [the court] another 60 days.” In the November 2019 status hearing, the court indicated that it was nearly finished with its written ruling, and actually announced portions of that ruling during the hearing. In the course of making those announcements, the court declared— sua sponte—that it would be “finding that the [E]state is liable,” along with Taylor, for Taylor’s actions; the court explained that Taylor “controlled the expenditures of Margene” and “had power of attorney” and “represented both” the Estate and the Trust, and that the Estate “benefited from [Taylor’s] misuse of” Trust funds.
The court indicated that it was “struggling a little bit on what the proper law is to divide up the liability between” the Estate and Taylor, and it asked the parties for supplemental briefing on that question and certain other issues.
The Court’s Initial Written Ruling
¶45 A couple of weeks later, while the supplemental briefing was still in process, the court issued a lengthy written ruling containing both findings of fact and conclusions of law. In that ruling, the court found, among other things, that Taylor did not trouble himself to “read the Trust document prior to making distributions,” that he “was ignorant and at times willfully blind of the duties he assumed as a fiduciary under Utah law,” “that he did not make reasonable efforts to inform himself of those duties,” and that he had, in various ways, breached those duties as trustee of the Trust. In particular, the court determined that Taylor had breached several different fiduciary duties, including his duty to administer the Trust in good faith and as a prudent person would, his duty of loyalty, and his duty to enforce and defend claims against the Trust. The court also found that Taylor had breached a duty to maintain the marital home, explaining that, even though the Trust documents placed that duty on Margene and not on the trustee, “Taylor as trustee can be imputed a duty to maintain the marital home for the welfare of Margene.” And the court offered its view that, at least in some respects, Taylor’s “testimony lacked any indicia of credibility.”
¶46 With regard to Taylor’s trust administration, the court found that Taylor’s conduct not only “fell short of the required standard” but “crossed over into ‘reckless indifference’ towards Trust assets, or to acts of bad faith.” In the court’s view, Taylor “acted as trustee in a dilatory, haphazard, uncaring and slipshod fashion,” at times “making use of the Trust as if it were his own personal piggy-bank.” The court found that Taylor “showed a blatant lack of care about tracking monies coming out of the Trust,” and that “Taylor frequently invaded Trust corpus principal . . . with no consideration of the limiting terms of the [T]rust agreement.” The court found “that Taylor did not make an analysis of his mother’s needs when expending trust funds,” specifically noting that “Margene had significant assets of her own . . . that [Taylor] should have . . . considered as sources to provide for her care and maintenance prior to expenditure of Trust corpus principal,” including two other properties and some $2 million in “Zions stock.”
¶47 With regard to Taylor’s duty of loyalty, the court found that Taylor had engaged in frequent acts of self-dealing, for himself, his wife, and his siblings, and that he “used his position as trustee to engage in acts of extensive, repeated, and prolonged self-dealing” by “repeatedly authoriz[ing] transactions that directly benefited himself.” The court specifically listed the Jazz tickets, the Arabian horse, and direct payments to Taylor’s family members as examples of Taylor’s self-dealing. The court also mentioned Taylor’s “fail[ure] to control [the] vehicles titled in the name of the Trust,” stating that it appeared to the court as though Taylor was unaware that the Trust even owned any vehicles. The court found that “Taylor’s treatment of the vehicles . . . is typical of his reckless treatment of other Trust assets and his ignorance of his fiduciary duties as Trustee.”
¶48 On the question of damages caused by Taylor’s mismanagement of the Trust, the court adopted the calculations offered by Robert’s damages expert, explaining that her “methods provide a reasonably certain calculation of damages” that “accounts for both excess distributions and losses incurred due to present value of money.” Based on the methods used by Robert’s expert, the court calculated that the Trust had sustained damages, as the result of Taylor’s actions, in the amount of $5,229,095.
¶49 The court also made findings about the marital home, determining that it “was in excellent repair and condition” at the time of Dean’s death, but that Margene did not continue to properly maintain the property afterwards. As noted, however, the court held Taylor responsible for this conduct, imputing Margene’s duty onto Taylor. The court determined that the total damages regarding the home were $33,500, and that this amount was “owed to Jeana,” because Jeana had purchased the home for full value and then made the repairs to the home herself.[6] The court took the $33,500 amount from estimates provided by Jeana, even though, during a separate legal proceeding, Jeana had claimed she was owed only $29,439 for the repairs.
¶50 The court also determined that Taylor “violated his duty to enforce and defend claims against the Trust” when he authorized the $250,000 payment to Robert’s ex-wife. The court found that Taylor “failed to adequately communicate with Robert . . . regarding any merits or defenses to [Robert’s ex-wife]’s writ of garnishment . . . , or even to ascertain whether the amounts claimed were proper.” The court ruled that Taylor was “liable for the consequences of” this breach, but in its initial post-trial ruling the court made no effort to quantify that amount or identify who the damaged party was. During closing argument and his post-trial proposed findings, Robert had asked the court to award $35,000 plus interest on this issue. Nevertheless, the court later determined, after additional post-trial briefing, that Taylor was liable for the entire payment of $250,720.25.
¶51 In its initial written ruling, the court also made findings regarding the Estate’s petition. As noted, the Estate’s main issue concerned the unpaid interest on the Loan the Trust had made to Robert and Jill and their companies and, specifically, what the appropriate interest rate was. While the Note memorializing the Loan called for an interest rate tied to a particular brokerage account at Salomon Smith Barney, there were several lengthy “gap period[s],” ranging from several months to several years, during which “an interest rate was not published on the account.” The Estate’s expert used the published rate for the months it was available, but for the gap periods he employed two different methods (more fully explained below, in Part II.B) to estimate what the brokerage account interest rate would have been. Using these methods, the expert calculated the unpaid interest on the Note as $922,219.77.
¶52 The court, despite finding that the Estate’s expert’s averaging “method to cover short gap periods [was] reasonable,” declined to apply the expert’s interest rates for any of the gap periods. Instead, the court chose to apply a statutory default interest rate—one that turned out to be much lower than the rates suggested by the expert—to all the gap periods. See Utah Code § 70A-3-112 (“If an instrument provides for interest, but the amount of interest payable cannot be ascertained from the description, interest is payable at the judgment rate in effect at the place of payment of the instrument and at the time interest first accrues.”). In its initial post-trial ruling, the court asked the parties to provide supplemental calculations of the amount of interest owing, using the methods laid out in the ruling. After supplemental briefing, the court later determined that the total amount of unpaid interest owing on the Note was $565,314.97.
¶53 Finally, the court briefly considered the question of attorney fees, which had been requested by the Estate, Robert, and Taylor. The court determined that Taylor was “not entitled to any attorneys’ fees he incurred,” but that Robert was entitled to both (a) reimbursement of $187,595.71 from the Trust for fees incurred in defending the administration of the Trust, and (b) additional attorney fees from Taylor, pursuant to Utah’s bad faith statute, as the “prevailing party” in the litigation. See id. § 78B-5-825. The court specifically found that “Taylor’s defenses against the claims raised” in Robert’s petition “were brought in bad faith,” and asked Robert to submit an affidavit of fees and costs.
Joint and Several Liability of the Estate
¶54 After receiving the court’s lengthy written ruling, the parties continued working on their supplemental briefing, not only about the interest calculation but also about the joint-and-several-liability issue raised by the court, sua sponte, in the November 2019 hearing. After full briefing, the court heard argument on that issue, and at the conclusion of the hearing took the matter under advisement. A few weeks later, the court issued a written ruling, making two significant determinations. First, the court determined that the issue of Margene’s (and therefore, by extension, the Estate’s) vicarious liability for Taylor’s actions— despite not having been raised in the pleadings—had been tried by the consent of the parties. Second, the court officially found the Estate jointly and severally liable for Taylor’s actions. It specifically did not employ a constructive trust theory to render the Estate’s assets available for collection; instead, it noted that “Taylor had power of attorney over his mother’s financial affairs while exercising authority and powers as the trustee of” the Trust, and concluded that Taylor had the “intent to unlawfully pilfer the . . . Trust and preserve his mother’s estate for his own benefit and the benefit of his siblings.” The court offered its view that it “need not retreat to any equitable theory”—such as constructive trust— where there was “an express contract covering the subject matter of the litigation,” which contract was, in the court’s view, the Trust document. The court later clarified that it had not rejected Robert’s constructive trust theory, stating that the fact that it “didn’t rule on that theory . . . doesn’t mean that [the court] didn’t accept it,” and explaining that it had simply made a ruling “on an alternative ground.” Indeed, the court went so far as to say that, if a constructive trust theory was “what the parties believe is a more proper finding,” the court may be willing to “find that I’m ordering a constructive trust.”
Attorney Fees
¶55 After the trial, the court also made additional rulings regarding attorney fees. The court had already determined, in its lengthy written ruling, that Robert was entitled to recover reasonable attorney fees from Taylor. Later, Robert submitted an affidavit claiming $441,546.50 of attorney fees and $137,148.38 in costs, which the court determined were reasonable.
¶56 The Estate also requested attorney fees from Robert on the Loan/Note issue, invoking the Note’s attorney fees provision and asserting that it had been the prevailing party on the question of unpaid interest on the Loan. The Estate submitted detailed declarations—from two different attorneys—setting forth the fees incurred in that endeavor. In the motion accompanying the declarations, the Estate was careful to point out that “the fee declarations allocate between time spent on issues pertaining to the claim for interest on the Note and time spent on other matters,” directing the court’s attention to line items in the declarations that had been excluded from the request. The Estate asserted that the items remaining in its request were either directly related to its claim for unpaid interest or, alternatively, were inextricably intertwined with that claim such that they could not meaningfully be separated.
¶57 However, the court denied the Estate’s fee request in its entirety, concluding that the Estate had “fail[ed] to properly allocate claimed fees for claims upon which it prevailed.” The court acknowledged that the Estate had “made some effort to adhere to the Court’s admonition” to properly allocate attorney fees, but ultimately concluded that the Estate’s attempts in that regard were inadequate because, in the court’s view, the Estate’s fee request included fees for “legal work that sought to advance theories and arguments which the Court did not adopt and upon which the [E]state did not prevail.”[7]
The Form of the Judgment
¶58 During this same post-trial time period, the court also addressed questions regarding the form of the judgment, including who should be ordered to pay whom and how much. Robert submitted a proposed form of judgment, listing himself as the only judgment creditor, and indicating that Taylor owed him some $5.8 million and that the Estate, through joint and several liability and after an offset for unpaid interest, owed him some $5.2 million. This proposed judgment drew initial objections from the Estate and Taylor. In response to these initial objections, the court clarified that Taylor was solely liable for the payment to Robert’s ex-wife, but that the Estate was jointly and severally liable for the marital home damages and fee payments. And it ruled that Robert and Jill were each liable for “one half of the unpaid interest,” but it did not add Jill as a judgment debtor, reasoning that “[t]he amount of interest is to mitigate damages owed by the Estate” and should be accounted for as “an offset against amounts owed.”
¶59 Just days after the court’s ruling on the initial objections to the form of the judgment, the Estate lodged another objection, pointing out that—even though the court had previously held that Robert was not limited to pursuing damages only for his one-third share, had noted that Robert has standing to bring a claim on behalf of his siblings, and had even stated in its written ruling that the damages to the marital home were “owed to Jeana”—the only judgment creditor listed in the judgment was “Robert G. Harding,” apparently in his personal capacity. The Estate argued that the proper judgment creditors should be Robert and Jill “as trustees” of the Trust, because the claims presented at trial were largely “related to claims by the Trust, not claims by Robert G. Harding personally.” Robert opposed this objection, asserting that the language of the proposed judgment “is consistent with the procedural history” of the case and with the court’s written rulings. The court made no express ruling on this final objection and instead went ahead and signed its judgment without further comment, thus implicitly overruling the objection.
¶60 The signed judgment lists “Robert G. Harding” as the only judgment creditor, and Taylor and the Estate as the only judgment debtors. The document recites that Robert is “awarded Judgment against” Taylor in the amount of $5,815,599.71, and that Robert is “awarded Judgment against” the Estate in the amount of $4,999,564.49.[8] The difference between the two figures—the amount owed by Taylor as compared to the amount owed by the Estate—is $816,035.22, which is the sum of the offset for the unpaid interest on the Note ($565,314.97) and the amount paid to Robert’s ex-wife ($250,720.25).
¶61 Following entry of the judgment, the Estate filed a motion to amend the court’s rulings, findings, and judgment. In this motion, the Estate argued, among other things,[9] that the court had erred by accounting for the Estate’s recovery against Robert and Jill for unpaid interest through a setoff mechanism, instead of entering a separate judgment in favor of the Estate and against Robert and Jill. The Estate pointed out that this was especially problematic with regard to Jill, who was not a judgment creditor and therefore had no positive judgment against which her interest obligation could be set off. After full briefing and argument, the court denied the Estate’s motion.
ISSUES AND STANDARDS OF REVIEW
¶62 Taylor and the Estate each separately appeal. In his appeal, Taylor raises four issues for our review. First, he contends that the court erred in denying his motion to amend to add additional affirmative defenses. When reviewing a trial court’s decision on a motion to amend, “we give considerable deference to the [trial] court, as it is best positioned to evaluate the motion to amend in the context of the scope and duration of the lawsuit” and we “defer to the trial court’s determination.” Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 60, 221 P.3d 256 (quotation simplified). Thus, “[w]e overturn a trial court’s denial of a motion to amend . . . only when we find an abuse of discretion.” Kelly v. Hard Money Funding, Inc., 2004 UT App 44, ¶ 14, 87 P.3d 734.
¶63 Second, Taylor argues that the court erred in determining, on summary judgment, that he had breached his fiduciary duties by making distributions from marital share principal. Summary judgment is appropriate “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). “We review the summary judgment decision de novo.” Salo v. Tyler, 2018 UT 7, ¶ 19, 417 P.3d 581 (quotation simplified).
¶64 Third, Taylor takes issue with the court’s exclusion of his three disclosed expert witnesses. There are “[t]wo different standards of review [that] apply to claims regarding the admissibility of evidence.” Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 41, 513 P.3d 729. “The first standard of review, correctness, applies to the legal questions underlying the admissibility of evidence.” Id. (quotation simplified). “The second standard of review, abuse of discretion, applies to the [trial] court’s decision to admit or exclude evidence and to determinations regarding the admissibility of expert testimony.” Id. (quotation simplified).
¶65 Fourth, Taylor challenges the court’s ultimate determination of damages. “A trial court’s findings of fact will not be set aside unless clearly erroneous.” Traco Steel Erectors, Inc. v. Comtrol, Inc., 2009 UT 81, ¶ 17, 222 P.3d 1164 (quotation simplified). “The award of damages is a factual determination that we review for clear error.” Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 29, 133 P.3d 428.
¶66 In connection with its appeal, the Estate raises four issues for our consideration. First, the Estate challenges the court’s determination to hold it jointly and severally liable for Taylor’s actions, and its challenge takes two forms. As an initial matter, the Estate takes issue with the court’s conclusion that the vicarious liability issues—which were not present in Robert’s pleadings— were tried by the consent of the parties, and that Robert’s pleadings could therefore be amended post-trial pursuant to rule 15(b) of the Utah Rules of Civil Procedure. “We review the [trial] court’s application of rule 15(b) for correctness. However, because the trial court’s determination of whether the issues were tried with all parties’ implied consent is highly fact intensive, we grant the trial court a fairly broad measure of discretion in making that determination under a given set of facts.” Hill v. Estate of Allred, 2009 UT 28, ¶ 44, 216 P.3d 929 (quotation simplified). And more substantively, the Estate challenges the merits of the court’s conclusion that it is vicariously liable for Taylor’s actions. In some contexts, a vicarious liability ruling involves issues of fact. See, e.g., Newman v. White Water Whirlpool, 2008 UT 79, ¶ 10, 197 P.3d 654 (stating that “[w]hether an employee is in the course and scope of his employment” for purposes of vicarious liability “presents a question of fact for the fact-finder”). In other contexts, though, such a ruling is inherently legal. See, e.g., Wardley Better Homes & Gardens v. Cannon, 2002 UT 99, ¶ 19, 61 P.3d 1009 (stating that “[w]hether a principal is vicariously liable for an agent’s acts” presents a “legal question[]”). While—as discussed below—the precise legal basis for the trial court’s ruling is somewhat unclear, Robert defends the ruling by pointing to principles of agency law. We agree that, under the circumstances, the trial court’s vicarious liability ruling was a legal one, not a factual one, and we therefore review it for correctness.
¶67 Second, the Estate argues that the court erred in determining the rate for the unpaid interest due on the Note. Both sides agree that, at least under the circumstances of this case, we should review this issue for correctness. See USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 32, 372 P.3d 629 (stating that ascertaining “the appropriate interest rate” is “a question of law that we review for correctness”).
¶68 Third, the Estate raises several issues with the form of the court’s judgment. In particular, it wonders who the proper judgment creditors are, and contends that the court erred in setting off the Estate’s award of interest against the amounts the court determined it owed to Robert and Jill for vicarious liability. Challenges to offset determinations often involve mixed questions of fact and law and are “reviewed under a clearly erroneous standard for questions of fact and a correctness standard for questions of law.” Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 11, 288 P.3d 1046 (quotation simplified), cert. denied, 298 P.3d 69 (Utah 2013). The issue we address here regarding offset—namely, whether offset was appropriate when one of the parties did not receive a judgment—presents a legal question reviewed for correctness. See Fisher v. Fisher, 2009 UT App 305, ¶ 7, 221 P.3d 845 (noting that whether “an offset is allowed under [a] cause of action” is a question “of law, which we review for correctness”), cert. denied, 230 P.3d 127 (Utah 2010). And in addition, the Estate challenges the court’s award of damages for repairs to the marital home. “The award of damages is a factual determination that we review for clear error.” Saleh, 2006 UT 20, ¶ 29. However, “[w]e review the court’s legal conclusions for correction of error.” Hale, 2012 UT App 283, ¶ 13.
¶69 Finally, the Estate takes issue with the court’s rejection of its claim for attorney fees incurred in furtherance of its successful claim for unpaid interest on the Note. “The award of attorney fees is a matter of law, which we review for correctness. However, a trial court has broad discretion in determining what constitutes a reasonable fee, and we will consider that determination against an abuse-of-discretion standard.” Jensen v. Sawyers, 2005 UT 81, ¶ 127, 130 P.3d 325 (quotation simplified).
ANALYSIS
I. Taylor’s Appeal
¶70 As noted, Taylor asks us to consider four issues in connection with his appeal. First, he challenges the court’s denial of his motion to amend to add additional affirmative defenses. Second, he takes issue with the trial court’s ruling, made on summary judgment, that Taylor had breached his fiduciary duties by making unlawful distributions from the Trust’s marital share principal. Third, he challenges the trial court’s decision to exclude his expert witnesses. Finally, he raises certain challenges to the court’s damages determinations. We address each of Taylor’s arguments in turn.
A. Taylor’s Motion to Amend
¶71 First, Taylor asks us to examine the court’s ruling denying his motion to amend his responsive pleading to add several additional affirmative defenses, including a more specific statute of limitations defense and a defense that he “had a good faith basis for his actions.” The court denied Taylor’s request on the basis that Taylor had engaged in “unreasonable delay” and had “failed to provide adequate justification [as to] why he did not [seek to] amend his pleading earlier.” We discern no abuse of discretion in the trial court’s decision.
¶72 In deciding a motion to amend, courts are instructed to consider several factors, including whether the movant “was aware of the facts underlying the proposed amendment long before its filing, the timeliness of the motion, the justification for the delay, and any resulting prejudice to the responding party.” Jones v. Salt Lake City Corp., 2003 UT App 355, ¶ 16, 78 P.3d 988 (quotation simplified) (affirming the denial of a motion to amend where it was filed about a year after the deadline for amending pleadings and where the movant provided no justification for the delay), cert. denied, 90 P.3d 1041 (Utah 2004). In this case, the court denied Taylor’s motion in an oral ruling from the bench, and the record submitted to us does not include a transcript of that oral ruling. But in a subsequent written order memorializing its ruling, the court focused on two of these factors: timeliness and justification. The court was of the view that Taylor had waited too long to seek amendment of his responsive pleading, despite apparent awareness of the relevant issues, and that his delay was not justified by any good reason. The court rejected as “faulty” Taylor’s excuse that he had been under the impression that his original answer—which incorporated by reference the statute of limitations defense pleaded by Robert’s ex-wife—included “all statute of limitations” defenses. The court’s written ruling made no specific mention of Taylor’s desired “good faith” defense.
¶73 In his appellate brief, Taylor does not engage with the trial court’s reasoning, and provides no specific response to the court’s conclusion that his motion was untimely and his delay was unjustified. Instead, he makes two arguments in support of his appellate challenge. First, he asserts that his unpleaded statute of limitations defense was meritorious. But this is beside the point here; if the trial court was within its discretion to deny Taylor’s motion to amend on delay and justification grounds, then the merits of Taylor’s unpleaded defenses are not directly relevant.
¶74 Second, Taylor suggests that, because this case was a probate action initiated by a “petition” rather than a “complaint,” the rules of civil procedure regarding timeliness of pleadings do not apply. But this argument is unpreserved; Taylor did not make it at the trial court level—at least not in his written filings; as noted, the record includes no transcript of the hearing—and thus did not give the trial court an opportunity to rule on it. See Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683 (stating that, “to preserve an argument for appellate review, the appellant must first present the argument to the [trial] court in such a way that the court has an opportunity to rule on it,” and observing that “we generally do not address unpreserved arguments raised for the first time on appeal” (quotation simplified)), cert. denied, 364 P.3d 48 (Utah 2015). Therefore, we decline to consider this argument for the first time on appeal.
¶75 Under these circumstances—where Taylor does not provide us with a transcript of the trial court’s oral ruling, does not directly engage with the court’s reasoning, and offers an argument that is apparently unpreserved—Taylor has not carried his burden, on appeal, of demonstrating that the court abused its discretion by denying his motion to amend his responsive pleading to add additional affirmative defenses. We therefore affirm the court’s denial of that motion.
B. The Summary Judgment Ruling
¶76 Next, Taylor challenges the trial court’s determination, made on summary judgment, that he made unlawful distributions from the Trust’s marital share principal and thereby breached his fiduciary duties. In particular, he asserts that this ruling was inappropriate because genuine issues of material fact remained to be decided in connection with these issues. But Taylor has not borne his burden, here on appeal, of demonstrating error in the court’s summary judgment ruling.
¶77 As a threshold matter, it is important to recognize that the ruling in question was brief and quite narrow. In that ruling, the court noted that, under the terms of the Trust, Taylor was not allowed to distribute principal from the marital share, and it noted that Taylor had admitted to making distributions of principal from the marital share. The court therefore determined, as a matter of law and under the plain terms of the Trust documents, that these distributions were “unlawful.” It reserved all other issues for trial, including “the amount of damages that resulted from” any such unlawful distributions.
¶78 Taylor does not challenge the court’s determination that, under the terms of the Trust documents, he was forbidden from distributing principal out of the marital share. And he does not take issue with the court’s observation that, in discovery, Taylor admitted that he had indeed made distributions of principal out of, among other sources, the IRAs that Accountant had placed in the marital share. Thus, his challenge to the court’s summary judgment ruling is limited: he takes issue only with the court’s conclusion that those admitted distributions were unlawful as a matter of law. In this regard, Taylor makes three arguments, which we consider in turn.
1
¶79 First, Taylor asserts that his actions were not unlawful—at least not as a matter of law—because he had merely been following advice given to him by professionals (namely accountants and attorneys) retained to advise him in his role as trustee, and that questions of fact therefore remained regarding the reasonableness of his conduct. But on the record before us, this argument cannot carry the day for Taylor.
¶80 Under Utah law, a trustee who violates a duty owed to a beneficiary has breached fiduciary duties. See Utah Code § 75-71001 (“A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.”); see also id. § 75-7-801 (stating that trustees must “administer the trust expeditiously and in good faith, in accordance with its terms and purposes”). And it does not matter that the trustee’s actions were merely negligent (rather than knowing or intentional). See Restatement (Third) of Trusts § 93 cmt. b (Am. L. Inst. 2012) (“A breach of trust occurs if the trustee, intentionally or negligently, fails to do what the fiduciary duties of the particular trusteeship require or does what those duties forbid . . . . [A] trustee may commit a breach of trust by conduct (action or inaction) that results from a mistake . . . , typically [one] regarding the nature or extent of a trustee’s duties or powers.”).
¶81 In this case, the plain language of the Trust documents clearly forbade Taylor from making any distributions from the principal assets of the Trust’s marital share. He therefore had a clear obligation not to authorize distributions of principal from the marital share. He violated that obligation by repeatedly authorizing such distributions, and this is true even if one assumes, for purposes of the argument, that Taylor made the distributions negligently rather than intentionally or knowingly. Unless otherwise excused, that action constitutes a breach of the fiduciary duties that Taylor, in his capacity as trustee, owed the beneficiaries of the Trust.
¶82 However, under the Restatement’s approach, in certain circumstances, a court has the authority, where equity demands it, to excuse a trustee from having to pay a liability resulting from a breach of duty. See id. § 95 cmt. d (stating that, where a court concludes that “it would be unfair or unduly harsh to require the trustee to pay . . . the liability that would normally result from a breach of trust, the court has equitable authority to excuse the trustee . . . from having to pay that liability”); see also Restatement (Second) of Trusts § 205 cmt. g (Am. L. Inst. 1959) (“In the absence of a statute it would seem that a court of equity may have power to excuse the trustee in whole or in part from liability where he has acted honestly and reasonably and ought fairly to be excused.”). For instance, where case law upon which a trustee relied is later overruled, courts might conclude that a trustee should be equitably relieved from the consequences of a breach of duty. See Restatement (Third) of Trusts § 95 cmt. d (Am. L. Inst. 2012). And as relevant here, courts may reach a similar conclusion where “a trustee has selected an adviser prudently and in good faith, has provided the adviser with relevant information, and has relied on plausible advice on a matter within the adviser’s competence.” See id. § 93 cmt. c.
¶83 In the trial court, Taylor opposed Robert’s summary judgment motion by arguing, among other things, that his actions were reasonable because he relied on professional advice; in so doing, however, Taylor did not cite the Restatement or ask the trial court to apply its approach. Robert replied by asserting that “advice of counsel” was an affirmative defense that Taylor had waived by not pleading it and by failing to obtain leave to add that defense in an amended pleading. We do not know if Taylor’s advice-of-counsel defense (or Robert’s waiver argument made in response to it) was discussed during the oral argument on Robert’s summary judgment motion, because the record submitted to us does not include a transcript of that hearing. And the court’s rather brief written order memorializing its summary judgment ruling makes no mention of the issue.
¶84 There are several plausible ways the trial court could have handled Taylor’s advice-of-counsel defense at the summary judgment stage. First, the court could have determined that Utah law does not allow an advice-of-counsel defense under the circumstances presented here. We are unaware of any Utah authority adopting the Restatement’s approach, so it is unclear whether that approach is consonant with Utah law; certainly, Taylor makes no effort to so persuade us in his appellate brief.[10] Second, the court may have adopted Robert’s argument that Taylor waived this defense by failing to plead it in his answer and by failing to persuade the court to allow amendment of that answer. As already noted, several months before the summary judgment hearing the trial court did deny Taylor leave to amend his responsive pleading to add a “good faith” defense, ruling that any such amendment was too late and unjustified. On appeal, Taylor does not refute Robert’s assertion that he waived the defense, and he makes no effort to show that advice of counsel is not the sort of affirmative defense that must, upon penalty of waiver, be pleaded in an answer.[11] Third, the court may have determined that resolution of Taylor’s advice-of-counsel defense was not necessary at the summary judgment stage. In fact, the written summary judgment ruling is not necessarily at odds with that defense: even if the distributions from the marital share are considered unlawful, the court could, during the damages phase of the proceedings, potentially equitably relieve Taylor from the consequences of those unlawful distributions. And here on appeal, Taylor makes no argument that he was prevented, at trial, from presenting evidence relating to his advice-of-counsel defense. Fourth, the court could have determined, at the summary judgment hearing, that the undisputed evidence regarding Taylor’s advice-of-counsel defense was insufficient to present a genuine dispute of material fact that would prevent summary judgment. Or fifth, the court could have completely ignored the issue, and simply made no ruling on it at all.
¶85 We do not know what the court did with Taylor’s advice-of-counsel argument at the summary judgment phase, because its written ruling is silent on the matter and its oral ruling is not included in the appellate record. It is certainly not obvious, from the record before us, that the trial court erred in the way it handled Taylor’s asserted advice-of-counsel defense in connection with Robert’s summary judgment motion. It is an appellant’s responsibility “to include in the record a transcript of all evidence relevant to a finding or conclusion that is being challenged on appeal.” Gines v. Edwards, 2017 UT App 47, ¶ 21, 397 P.3d 612 (quotation simplified), cert. denied, 398 P.3d 52 (Utah 2017). “When an appellant fails to provide an adequate record on appeal, we presume the regularity of the proceedings below,” and “when crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court.” State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (quotation simplified); see also Bank of Am. v. Adamson, 2017 UT 2, ¶ 11, 391 P.3d 196 (stating that an appellant’s brief must “contain the contentions and reasons of the appellant with respect to the issues presented . . . with citations to the authorities, statutes, and parts of the record relied on” (quotation simplified)).
¶86 In situations like this one, where “crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court.” Pritchett, 2003 UT 24, ¶ 13 (quotation simplified). While it is perhaps not always necessary for an appellant challenging an adverse summary judgment ruling to include in the appellate record a transcript of the oral argument on the summary judgment motion, cf. Gines, 2017 UT App 47, ¶ 21 (noting that “an appellant is not required to provide the transcript from every proceeding that occurred in the case”), in our view this is necessary in cases where the court issued an oral ruling at the conclusion of the hearing and where the court’s eventual written order is silent with regard to the matter being challenged. In such cases, a transcript of the hearing is necessary for us to effectively review the challenged issue. Without the transcript, we do not know what evidence or argument the court relied on in rendering any decision. Indeed, in this case we do not know if the court even made a decision on the point Taylor challenges. Under these circumstances, Taylor “has not provided this court with the tools necessary to determine whether the [trial] court” erred, and therefore his “claim of error,” in this regard, “is merely an unsupported, unilateral allegation which we cannot resolve.” R4 Constructors LLC v. InBalance Yoga Corp., 2020 UT App 169, ¶ 12, 480 P.3d 1075 (holding that the appellant did not show an abuse of discretion where he failed to include a necessary transcript in the appellate record). Accordingly, Taylor has not carried his burden of persuasion on appeal, and the trial court’s summary judgment ruling is not now assailable on the basis that questions of fact remained to be decided regarding whether Taylor reasonably followed professional advice.
2
¶87 Second, Taylor asserts that the IRAs from which many of the allegedly unlawful distributions of principal were made were not part of the Trust at all, and therefore the distributions could not have been unlawful. But the trial court did not err in determining that no genuine issue of material fact existed on this point. As noted above, the court issued a separate ruling, signed on the same day and arising out of the same summary judgment hearing, determining that Robert had conclusively demonstrated that “the IRAs were properly transferred to and owned by the [Trust] after Dean’s death.” And in the summary judgment ruling at issue here, signed by the court just minutes later, the court simply noted that the marital share of the Trust “included” the IRAs. Taylor asserts that there existed questions of fact about the ownership of the IRAs, because the parties were never able to locate a “signed beneficiary designation” executed prior to Dean’s death. But Robert submitted quite a bit of evidence, including account statements from the IRAs dated prior to Dean’s death, indicating that the IRAs were in fact part of the Trust.[12] And Accountant—the first successor trustee of the Trust—certainly saw it that way. Taylor did not meaningfully rebut this evidence; the mere absence of a signed beneficiary designation is not, under these circumstances, enough to create a genuine issue of material fact regarding ownership of the IRAs.
3
¶88 Finally, Taylor asserts that his distributions of principal from the marital share, including distributions from the IRAs, can be considered lawful if they are offset against distributions of principal he could have hypothetically lawfully made from the family share. As noted above, Taylor had conceptual authority to make distributions of principal from the family share for Margene’s “support and maintenance” if the Trust income and Margene’s other assets were not sufficient to address her needs. In other words, Taylor asserts that the beneficiaries would not be entitled to any damages resulting from his otherwise unlawful distributions of marital share principal if Taylor can show that those distributions could, in his discretion, have been made from the family share instead. But even if this is true, this argument serves only to reduce the damages sustained by the beneficiaries as the result of Taylor’s breaches of duty; this argument does not somehow transform Taylor’s unlawful distributions into lawful ones. As noted, the court reserved for trial, among other things, all questions regarding “[t]he total amount of damages that resulted from Taylor’s unlawful distributions of principal from the” marital share. And in addition, there is no evidence that Taylor actually engaged in the analysis required prior to making lawful distributions from the family share principal—assessing whether Margene’s reasonable needs could be met from her own assets and the income from the Trust.
¶89 In the end, we perceive no error, on this record, in the trial
court’s narrow ruling, made on summary judgment, that Taylor had made unlawful distributions of principal from the Trust’s marital share, and that he had thereby breached the fiduciary duties he owed to the beneficiaries.
C. Taylor’s Expert Witnesses
¶90 Taylor next challenges the court’s orders prohibiting his disclosed expert witnesses from testifying in his case-in-chief at trial. The court excluded two of these experts—Taylor’s financial experts—because Taylor failed to serve the required report from the experts.[13] And the court excluded the third expert—Taylor’s legal expert—for reasons we cannot, on this record, ascertain. Under the circumstances presented here, Taylor has not persuaded us that the court’s orders regarding his expert witnesses are subject to reversal.
¶91 The court had good reason to exclude Taylor’s two financial experts. Following Taylor’s disclosure of these two experts, Robert opted to require the experts to produce a written report. See Utah R. Civ. P. 26(a)(4)(C)(i), (ii) (stating that “the party opposing the expert may serve notice electing either a deposition of the expert . . . or a written report” from the expert). Taylor failed to timely provide those reports. The court’s order excluding those experts on that basis is therefore sound. See id. R. 26(d)(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.”); see also Clifford P.D. Redekop Family LLC v. Utah County Real Estate LLC, 2016 UT App 121, ¶¶ 15–16, 378 P.3d 109 (upholding a trial court’s exclusion of an expert witness when the party did not timely provide a written report by the deadline or provide “good cause” for failing to do so). And on appeal, Taylor does not attempt to argue that his failure to provide reports was harmless or spurred by good cause. Instead, Taylor merely informs us of what the witnesses would have testified about and asserts that the witnesses’ testimony “would have been of great benefit to the court.” This is insufficient to establish that the court abused its discretion. See R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, ¶ 11, 327 P.3d 1233 (“We have held that the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that the violation of rule 26 . . . was either justified or harmless.” (quotation simplified)), cert. denied, 337 P.3d 295 (Utah 2014).
¶92 Taylor’s third witness, the legal expert, was dismissed after a hearing. In his motion asking the court to exclude Taylor’s legal expert, Robert argued that the court “should not allow a local attorney to tell [it] how to interpret” the Trust documents. The court granted this motion in an oral ruling made at the conclusion of the hearing; the court’s minute entry contains very little information about the basis for the ruling. A few weeks after the hearing, the court signed a written order, prepared by counsel, that was intended to memorialize the oral ruling; that order stated simply that, “[a]fter argument by counsel and review of the briefings filed by the parties, the Court grants [Robert’s] Motion in Limine excluding all legal expert testimony at trial.” And as noted, the record submitted to us does not contain a transcript of the hearing at which the court rendered its oral ruling, nor does it contain any additional elucidation of the court’s reasoning in granting Robert’s motion to exclude Taylor’s legal expert.
¶93 Under circumstances like these, an appellant fails to carry its burden of persuasion on appeal. As already noted, it is an appellant’s responsibility “to include in the record a transcript of all evidence relevant to a finding or conclusion that is being challenged on appeal.” Gines, 2017 UT App 47, ¶ 21 (quotation simplified) (affirming a trial court’s decision on a motion in limine because the appellant did not provide a transcript of the hearing); see also Pritchett, 2003 UT 24, ¶ 13 (stating that, in the absence of an adequate record, “we presume the regularity of the proceedings below,” and that “when crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court” (quotation simplified)).
¶94 In this non-legal-malpractice case, we can easily envision good reason for the court to have excluded Taylor’s proffered legal expert. See Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1347 (Utah 1993) (“Even though experts can testify as to ultimate issues, their testimony must still assist the trier of fact under rule 702. Opinion testimony is not helpful to the fact finder when it is couched as a legal conclusion.” (quotation simplified)). And where, as here, material gaps in the appellate record exist, we must presume the regularity of the proceedings, and presume that the court had good reason to take the action it took. Under these circumstances, Taylor has simply not persuaded us that the court abused its discretion in excluding his legal expert witness.
¶95 Accordingly, we reject Taylor’s assertions that the trial court abused its discretion in ordering the exclusion of all three of Taylor’s disclosed expert witnesses.
D. The Court’s Damages Award
¶96 Finally, Taylor raises two challenges to the court’s damages determinations. He first makes a general challenge to the court’s damages award, asserting that the court should not have used the damages calculation offered by Robert’s damages expert because that expert “made too many mistakes and relied on assumptions that are too speculative.” He next asserts that Robert did not suffer $250,000 in damages from the distribution to Robert’s ex-wife because Robert “received full credit against the judgment for the money distributed.” We reject Taylor’s first challenge, but find merit, at least to some extent, in the second.
¶97 Taylor’s general attack on Robert’s damages expert—and, by extension, on the court’s damages computation—is not well-taken. As examples of the “faulty assumptions” Robert’s expert made, Taylor points to the expert’s assumptions—held at least prior to trial, if not afterward—that three specific transactions (or sets of transactions) constituted “distributions” of Trust assets: (1) a $200,000 transfer between Trust accounts, (2) several five-figure checks of unknown purpose, and (3) a separate sale of an investment in the Trust portfolio. But as Robert points out, the expert herself—after receiving additional information at trial— backed away from the first assumption, and ended up not including the $200,000 transfer in her ultimate recommendation to the court. And most importantly, it does not appear that the trial court actually included any of the identified transactions in its damages award—at least, Robert asserts that it didn’t, and Taylor does not take issue with that assertion. So, to the extent that these identified transactions constitute “mistakes” on the part of Robert’s expert, the court appears to have accounted for those mistakes in its damages award.
¶98 As noted above, we review the court’s damages calculations for clear error. See Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 29, 133 P.3d 428 (“The award of damages is a factual determination that we review for clear error.”). And we perceive no clear error in the court’s general adoption—with apparent adjustments—of Robert’s expert’s damages calculation. In its post-trial ruling, the court described Robert’s expert as “an experienced professional in the field of accounting and a licensed financial analyst,” and found that her methodologies “provide[d] a reasonably certain calculation of damages” that “account[ed] for both excess distributions and losses incurred due to [the] present value of money.” And as noted, the court in making its award apparently made adjustments, based on the evidence presented, to the expert’s computations. Under these circumstances, Taylor simply hasn’t carried his burden of demonstrating any clear error in the court’s general adoption of Robert’s expert’s damages methodologies, as adjusted.[14] See id.
¶99 However, we do see clear error in the court’s award of $250,000 in damages to Robert for Taylor’s payment of Trust assets to Robert’s ex-wife. The court found that this payment was made in violation of the Trust’s spendthrift provision and was therefore unlawful. But the court also found that the payment “did extinguish [Robert]’s debt to [his ex-wife],” which debt was a non-zero amount. The court, in a previous order, correctly noted that Robert’s damages on this point should be limited to “any interest losses that he . . . may have been entitled to” and money he would have saved if he could prove that his ex-wife would have accepted a lower amount. And of course, his damages calculation would need to account for any excess amounts paid to his ex-wife from other sources, such as his allegation that she received an extra $35,000 from the sale of one of his properties; it is notable that Robert, in his proposed post-trial findings, asked the court to award him only $35,000 plus interest on this point. But the court did not engage in a comprehensive analysis here, nor did it make specific findings on these recoverable damages; instead, it simply awarded Robert the entire $250,000 amount.
¶100 The court erred by awarding Robert damages for the full $250,000, at least without making specific findings as to why that amount was appropriate. As the court itself was aware, the $250,000 distribution to Robert’s ex-wife had at least some value to Robert—the extinguishing of his debt to his ex-wife—that should have been valued and offset against the $250,000 amount. And the court should have explained why it chose to award Robert the full $250,000 instead of the $35,000 (plus interest) that he asked for in his proposed findings.
¶101 Therefore, while we reject Taylor’s general complaint about the court’s adoption of Robert’s expert’s methodologies, we find merit in Taylor’s specific complaint about the court’s calculation of Robert’s damages related to the payment to Robert’s ex-wife. We therefore vacate—and remand for reassessment—that specific portion of the damages award.[15]
¶102 In sum, then, we reject all of Taylor’s claims on appeal, except for the second of his two damages-related assertions.[16]
II. The Estate’s Appeal
¶103 We now turn to the Estate’s appeal. As noted, the Estate asks us to consider four issues. First, the Estate asks us to reverse the court’s determination to hold it vicariously liable for the actions Taylor took as trustee. Second, the Estate challenges the court’s conclusion regarding the appropriate rate to be applied in calculating the interest that Robert and Jill owe on the Note. Third, the Estate raises various issues with the form of the judgment. And finally, the Estate asks us to review the court’s rejection of its claim for attorney fees incurred in furtherance of its successful claim for interest on the Note. We address each of these arguments in turn.
A. Vicarious Liability
¶104 The Estate’s main challenge on appeal—the one on which it spends the bulk of its energies—concerns the court’s ruling that the Estate should be held vicariously liable for the unlawful actions Taylor took as trustee. The Estate criticizes this ruling on two specific grounds, one procedural and one substantive. The procedural challenge has to do with whether the issue was properly before the court for decision in the first place. And the substantive challenge has to do with whether the court’s decision was correct. We find merit in both of the Estate’s challenges to the court’s vicarious liability ruling.
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¶105 The Estate begins its argument by pointing out, correctly, that Robert did not plead or seek vicarious liability in his petition or in any other place in his voluminous pretrial filings in this case. In his petition, Robert sought specific relief against the Estate for damages related to the marital home. Aside from that particular request, the petition sought only one other thing from the Estate: “a return of principal wrongfully distributed from the Trust.” In the petition, Robert never asked the court to hold Margene or the Estate vicariously liable for Taylor’s conduct.
¶106 Not only did Robert fail to plead a claim for vicarious liability, but as the litigation proceeded, he implicitly disavowed making any such claim. Prior to trial, Robert filed a motion to bifurcate, asking the court to separate the trial of the Estate’s claims—most notably, for interest on the Loan—from the trial of Robert’s claims relating to Taylor’s alleged breaches of fiduciary duty. In this motion, Robert suggested that the claims stated in his petition against the Estate—chiefly, regarding the marital home— had already been “likely resolved” in a recent ruling. In particular, Robert asserted that “the only issue remaining” with regard to his petition “is the amount of damages to be awarded against Taylor,” and he argued that the Estate “should not be involved in” the trial of his claims against Taylor. Had Robert been seeking a vicarious liability ruling against the Estate, he would never have taken that position.
¶107 To its credit, the trial court recognized these realities and, in announcing its ruling that the Estate should be held vicariously liable, did not attempt to assert that the issue had ever been raised prior to trial. Instead, the court held that the issue of the Estate’s vicarious liability had been tried by consent during the multi-day bench trial. See Utah R. Civ. P. 15(b)(1) (“When an issue not raised in the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings.”). Here on appeal, the Estate asserts that the trial court incorrectly concluded that this issue was tried by consent. We agree.
¶108 Under rule 15(b) of the Utah Rules of Civil Procedure, “implied consent to try an [unpleaded] issue may be found where one party raises an issue material to the other party’s case or where evidence is introduced without objection, where it appears that the parties understood the evidence is to be aimed at the unpleaded issue.” Hill v. Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929 (quotation simplified). In such instances, the pleadings are deemed amended after the fact, in order “to conform them to the evidence” presented at trial. See Utah R. Civ. P. 15(b)(1). “The test for determining whether pleadings should be deemed amended under Utah R. Civ. P. 15(b) is whether the opposing party had a fair opportunity to defend and whether it could offer additional evidence if the case were retried on a different theory.” Hill, 2009 UT 28, ¶ 48 (quotation simplified). “When evidence is introduced that is relevant to a pleaded issue and the party against whom the amendment is urged has no reason to believe a new issue is being injected into the case, that party cannot be said to have impliedly consented to trial of that issue.” Id. (quotation simplified); see also Archuleta v. Hughes, 969 P.2d 409, 412 (Utah 1998) (“Implied consent of the parties must be evident from the record.” (quotation simplified)).
¶109 Robert asserts that “the Estate showed awareness of its potential liability” several times during the lawsuit. For instance, it lodged an objection to the portion of the prayer for relief in Robert’s petition that requested the return of wrongfully distributed principal from the Estate, and it informed the court, at trial and in certain post-trial hearings, that one of the Estate’s goals in the litigation “was to assure that liability for Taylor’s wrongful acts did not ‘slop over’ to the Estate.” But awareness of an unpleaded issue does not necessarily constitute consent that the issue be tried, especially here where the Estate demonstrated its awareness of the issue by objecting (rather than consenting) to the issue’s presence in the case. More is required. There must be some indication that the Estate expressly or impliedly consented to the litigation of the merits of the unpleaded issue at trial. See Archuleta, 969 P.2d at 412 (“There must, of course, be either express or implied consent of the parties for the trial of issues not raised in the pleadings.”). And here, the record does not support the proposition that the Estate expressly or impliedly consented to try the issue of its vicarious liability for Taylor’s conduct.
¶110 Certainly, there is no indication that the Estate ever expressly consented to amendment of Robert’s pleadings to add the issue of its vicarious liability. Neither Robert nor the trial court directs our attention to any such evidence.
¶111 And in our view, the record cannot support the conclusion that the Estate ever impliedly consented to trial of that specific unpleaded issue. As noted, awareness of the issue is not enough. Neither Robert nor the trial court points us to evidence “introduced without objection, where it appears that the parties understood the evidence is to be aimed at the unpleaded issue.” Hill, 2009 UT 28, ¶ 48 (quotation simplified). In the court’s ruling on this point, it recited evidence that Taylor had conflicts of interest, was acting in several different capacities, and used his authority in those capacities to benefit his mother; the court concluded therefrom that “[t]hese circumstances are sufficient grounds to find that the issue of liability as to the Estate was tried by consent.” This is incorrect. All of this evidence—regarding Taylor’s conflicts of interest, breaches of duty, and actions taken to benefit Margene—is relevant to Robert’s overarching claims against Taylor. Its presence in the case would not have signaled to the Estate that the unpleaded issue of its vicarious liability for all those actions was somehow being litigated.[17] See id. (“When evidence is introduced that is relevant to a pleaded issue and the party against whom the amendment is urged has no reason to believe a new issue is being injected into the case, that party cannot be said to have impliedly consented to trial of that issue.” (quotation simplified)). We are aware of no evidence presented at trial that clearly and exclusively went to the issue of whether the Estate should be held vicariously liable for Taylor’s actions.
¶112 But perhaps the most telling sign that the vicarious liability issue was not tried by implied consent of the parties is that even Robert didn’t appear to believe, after the trial, that the issue had been tried. In the set of proposed findings and conclusions he submitted about a month after the trial ended, Robert included no findings or conclusions regarding the Estate’s vicarious liability, and he did not ask the court to so rule. The closest he came to the issue was asking for a finding that imposed “a constructive trust on the assets of the Estate” and an order that “all remaining [Estate] assets payable or distributable to Taylor be used to pay the outstanding judgments in this case.”
¶113 Thus, the issue of the Estate’s vicarious liability was never pleaded or sought by Robert and was never tried by consent of the parties. The trial court came up with the theory all on its own, many months after the trial had concluded. This was procedurally inappropriate. We therefore reverse the court’s ruling that this unpleaded issue was tried by the consent of the parties.
2
¶114 Because the issue of the Estate’s vicarious liability was neither pleaded nor tried by the consent of the parties, the trial court’s ruling holding the Estate vicariously liable for Taylor’s actions is infirm and subject to reversal for that reason alone. But the court’s vicarious liability ruling was also wrong on its merits, and we opt to explain why, in order to provide certain guidance that may be useful on remand.
¶115 There appear to be three different theories, floated by the parties (or the court) at various times in the case, as to how Robert and his siblings might access the assets of the Estate to compensate them for the unlawful acts Taylor took as trustee of the Trust.[18] First, there is the court’s own vicarious liability theory, which we refer to as the “conflict of interest” theory. As the court explained it, Taylor wore several somewhat-conflicting hats at various times throughout the case: he was trustee of the Trust, he had power of attorney over Margene’s personal finances, he was (after Margene’s death) personal representative of the Estate, and he (along with Margene’s other children) is one of the beneficiaries of the Estate. In the court’s view, Taylor was motivated to benefit himself and the Estate where he could, and he used his authority in these various roles—most notably as trustee of the Trust—to do just that. Essentially, the court ruled that, because many of the unlawful actions Taylor took as trustee of the Trust benefited Margene and the Estate, the Estate should be vicariously liable for Taylor’s actions, and should therefore answer to Robert (and his siblings) for Taylor’s conduct.
¶116 Second, there is the agency law theory upon which Robert largely relies here on appeal: that Taylor was an “agent” of Margene (and, by extension, the Estate) in carrying out his unlawful acts, and that the Estate—as principal—should be vicariously liable for its agent’s activities.
¶117 Finally, there is a constructive trust theory—expressly sought in Robert’s proposed post-trial findings—under which the Estate is not necessarily vicariously liable for Taylor’s actions as a general matter but, instead, the assets of the Estate may be used to satisfy Robert’s judgment against Taylor, at least to the extent that those assets stem from the Estate’s receipt of unlawful distributions from the Trust. Specifically, Robert’s proposed post-trial findings asked for the imposition of “a constructive trust on the assets of the Estate” and an order that “all remaining [Estate] assets payable or distributable to Taylor be used to pay the outstanding judgments in this case.”
¶118 The first two of these theories do not work. Even accepting the court’s central proposition—that Taylor had conflicting responsibilities—we cannot see how that fact leads to a legal conclusion that the Estate is generally liable for unlawful actions Taylor took in his capacity as trustee of the Trust. Under the Trust documents, only Taylor (as trustee) had any authority to make distributions. Margene (as “surviving spouse”) had no such authority, with the Trust documents stating that “[t]he surviving spouse shall have no power to appoint” Trust property to any other person. Taylor’s unlawful distributions were undertaken in his capacity as trustee of the Trust, and Margene had no authority to make any distributions of Trust assets; because she had no such authority, she couldn’t have delegated any of it to Taylor, via the power of attorney or otherwise. In other words, Taylor’s authority to take actions as trustee didn’t come from Margene, it came directly from the Trust documents themselves. We acknowledge that it certainly appears that the Estate may have benefited from Taylor’s unlawful actions. But we are aware of no authority— neither Robert nor the trial court cited any—indicating that an entity that benefits from someone else’s bad acts is thereby vicariously liable for those bad acts.
¶119 And the second theory—that Taylor was acting as Margene’s (or the Estate’s) agent when he committed the unlawful acts—fails for similar reasons. As an initial matter, there is no evidence that Taylor was acting as Margene’s agent at all when, acting as trustee of the Trust, he made distributions from the Trust to Margene. That is, there is no evidence that Margene instructed him to make any distributions, or that he was acting on Margene’s behalf when he did so. The mere fact that Margene benefited from Taylor’s actions does not mean that Taylor was acting as Margene’s agent; this is especially true where, as here, the alleged principal (Margene) possessed no authority to make the distributions in question.
¶120 But more substantively, even if we assume that Taylor was acting as Margene’s agent, a principal is liable for an agent’s actions only under certain circumstances. See Stein Eriksen Lodge Owners Ass’n Inc. v. MX Techs. Inc., 2022 UT App 30, ¶ 25, 508 P.3d 138 (“Under agency law, an agent cannot make its principal responsible for the agent’s actions unless the agent is acting pursuant to either actual or apparent authority.” (quotation simplified)). “Actual authority may either be express or implied.” Hussein v. UBS Bank USA, 2019 UT App 100, ¶ 32, 446 P.3d 96, cert. denied, 455 P.3d 1062 (Utah 2019). “Express [actual] authority exists whenever the principal directly states that its agent has the authority to perform a particular act on the principal’s behalf.” Drew v. Pacific Life Ins. Co., 2021 UT 55, ¶ 54, 496 P.3d 201 (quotation simplified). “Implied [actual] authority includes acts which are incidental to, or are necessary, usual, and proper to accomplish or perform, the main authority expressly delegated to the agent.” Id. (quotation simplified). And apparent authority exists “when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.” Id. ¶ 55 (quotation simplified). Robert makes no effort to persuade us that Taylor was acting pursuant to either actual or apparent authority from Margene when he committed the unlawful acts.
¶121 Robert does observe—correctly—that Margene gave Taylor power of attorney over her personal finances. But he does not explain how this narrow grant of authority led to the unlawful acts Taylor committed as trustee, or constituted the type of authority by which the Estate can be held vicariously liable for Taylor’s malfeasance. The scope of this grant of authority extended only to Margene’s own personal finances; Margene had no authority to disburse Trust funds, and therefore could not have granted, by her power of attorney, any such authority to Taylor, either expressly or impliedly. And as a practical matter, nothing Taylor did with Margene’s personal finances could have, by itself, impacted the Trust; after all, by the time Taylor took actions pursuant to his power of attorney—e.g., moving money from Margene’s personal accounts to, say, his own—he would by definition have already committed the unlawful acts in question— distributing Trust principal into Margene’s accounts in the first place. That is, the specific bad acts at issue here weren’t undertaken pursuant to any authority Margene gave Taylor; they were committed pursuant to authority Taylor already possessed, as trustee, under the Trust documents. Under these circumstances, Robert has not borne his burden of persuading us that vicarious liability exists here under principles of agency law.
¶122 Moreover, as noted, the trial court did not rely on this theory; if we were to rely on it here, we would be affirming on a different ground, something we may do only if that ground is “apparent on the record.” See Croft v. Morgan County, 2021 UT 46, ¶ 43, 496 P.3d 83 (quotation simplified). It is certainly not apparent from this record that Taylor had authority from Margene to act on her behalf in making unlawful distributions of Trust principal.
¶123 Thus, on the record before us, we see no basis in law for the Estate to be held vicariously liable, as a general matter, for acts Taylor committed as trustee of the Trust. We therefore reverse the trial court’s ruling to that effect.
¶124 Before concluding our analysis, however, we discuss the third theory by which assets of the Estate might conceivably be used to satisfy a judgment entered against Taylor in connection with his malfeasance as trustee: Robert’s apparent request that the court impose a constructive trust on the assets of the Estate, at least to the extent that those assets are derived from unlawfully distributed Trust assets. As noted, this theory is more limited than a vicarious liability theory—imposition of a constructive trust would not connote that Margene or the Estate did anything wrong and would not result in the Estate being generally liable for Taylor’s unlawful actions. But imposition of a constructive trust would enable Robert (and his siblings) to reach at least certain assets of the Estate to compensate them for Taylor’s malfeasance. See Lodges at Bear Hollow Condo. Homeowners Ass’n, Inc. v. Bear Hollow Restoration, LLC, 2015 UT App 6, ¶ 31, 344 P.3d 145 (“Constructive trusts are usually imposed where injustice would result if a party were able to keep money or property that rightfully belonged to another.” (quotation simplified)).
¶125 It is unclear to us whether Robert properly pleaded and pursued this theory or, if not, whether it was tried by consent of the parties. Robert certainly asked for this relief in his proposed post-trial findings, at least regarding Taylor’s share of the Estate’s assets. But the trial court specifically eschewed this theory during post-trial proceedings, offering its view that it “need not retreat to any equitable theory”—for instance, constructive trust—to support its determination regarding vicarious liability. However, the court expressly stopped short of rejecting a constructive trust theory, stating in a later ruling that it had not ruled on the theory, but instead had merely “ruled on an alternative ground,” and further clarifying that the fact that it “didn’t rule on that theory . . . doesn’t mean that [the court] didn’t accept it.” Indeed, the court went so far as to say that, if a constructive trust theory was “what the parties believe is a more proper finding,” the court may be willing to impose such a trust.
¶126 On remand, the court should consider whether Robert properly pleaded a claim for constructive trust and, if not, whether that claim was tried by consent of the parties. If the court determines that the claim is properly before the court, it should then consider the merits of the claim, and evaluate whether and to what extent a constructive trust should be imposed on the assets of the Estate in favor of Robert and his siblings. The merits of these questions have not been briefed in connection with this appeal, and we express no opinion on them, nor do we express any opinion regarding whether, on remand, these questions can or should be decided on the existing evidentiary record or whether additional proceedings would be appropriate.
B. Interest Rate
¶127 Second, the Estate asks us to examine the trial court’s ruling regarding the rate to be applied in calculating the amount of interest that Robert and Jill owe on the Note associated with the Loan. Despite the fact that the only expert—the Estate’s expert— to offer an interest calculation at trial calculated that interest to be $922,219.77, the court concluded that the total amount of unpaid interest owing on the Note was $565,314.97.
¶128 Under the terms of the Note, Robert and Jill agreed to pay “variable interest . . . at the margin loan rate assessed by S[a]lomon Smith Barney on Brokerage Account No. 298-02528-13 303 . . . as may fluctuate from time to time until paid in full.” But the calculation is not as straightforward as it may sound, because Robert and Jill failed to repay the Note for eleven years, and there were “some months” during that time span “where an interest rate was not published on the account” referenced in the Note.
¶129 For the months in which an interest rate on the specific account was published, the Estate’s expert used the published rate, which varied by month and ranged from 4.125% to 11%. For most of the “gap periods”—those months for which no interest rate was published on the account—the expert looked at the rate published for the month before the gap and the rate published for the month after the gap, averaged the two rates, and applied that average rate for each month during the gap period. Some of these gap periods were short, involving a gap of just a month or two, but other gap periods were quite long, involving periods up to three years without a published interest rate. But for the last gap period—a long one stretching from September 2011 through February 2015—the expert did not use an “average rate” methodology, because he could find no rate for the end month. Instead, he “made some calls and talked to a Smith Barney representative” who gave him “a range of rates”—from 4.75% to 5.5%—used “during that period of time” on various brokerage accounts. The expert then attempted to “corroborate that” range by comparing those rates to “rates published in the Wall Street Journal” and by discussing the issue “with [his] colleagues,” and eventually determined that a “reasonable rate” to use for the last gap period was 4.75%, a rate the expert considered to be “a very conservative rate . . . on the low end of the range.” The expert noted that this choice was only “an increase of 1.5% over the prime rate,” which he considered to be another sign that his chosen rate was “conservative and reasonable.” Applying this methodology, the expert calculated the total amount of interest owing, over the entire eleven-year period, as $922,219.77.
¶130 The trial court found the expert’s methodology to be “reasonable,” at least for “short gap periods,” but nevertheless did not accept the Estate’s expert’s methodology. It determined that the “Note’s repayment of interest term was ambiguous” with regard to the gap periods because the Note did not specify “what should occur if” no monthly interest rate was published for the account in question. It also found that “the intent of the parties” with regard to this ambiguity was “ascertainable sufficient to enforce it.” But even though it professed to be considering “extrinsic evidence to clarify the intent of the parties,” the court did not actually utilize any such evidence. Instead, it observed that the Note was a “negotiable instrument,” and it turned to a statute, located in Utah’s Uniform Commercial Code (UCC), for guidance. See Utah Code § 70A-3-112. That statute states, in relevant part, that if a negotiable “instrument provides for interest, but the amount of interest payable cannot be ascertained from the description, interest is payable at the judgment rate in effect at the place of payment of the instrument and at the time interest first accrues.” Id. § 70A-3-112(2). The court concluded that this statute “provides an adequate remedy at law to execute the intent of the parties as represented in the Note.” And it decided to apply this statutory default rate—which turned out to be 3.28%—to all gap periods, regardless of their length, noting that the statutory rate “provides a reliable method at law that relieves the Court from adopting” the expert’s methodologies for the gap periods. Notably, the court did not ever find that the Estate’s expert’s methodology was unreasonable; as noted, it found the methodology reasonable as to short gap periods and, even with regard to the longer gap periods, the court stated that it “appreciate[d]” the expert’s “efforts to determine reasonableness of his proposed rates by comparing them with the contemporaneous prime rate.” Later, using the published rate for the months in which one existed and the UCC rate for all other months, the court calculated the unpaid interest as $565,314.97.
¶131 The Estate ascribes error to the court’s approach, asserting that, after making its ambiguity determination, the court should not have jumped directly to the UCC rate but, instead, should have “determine[d] the parties’ intent from extrinsic evidence,” including the expert’s testimony. The Estate points out that the Note is far from silent on the interest-rate question, and indicates the parties’ intent to apply a rate equivalent to the brokerage rate for a particular account. And they assert that the UCC rate “applies only where the instrument is silent on how to calculate interest,” and not where the parties’ instructions in that regard are simply ambiguous. We find merit in the Estate’s argument.
¶132 As an initial matter, we note that the Estate’s argument is in line with general principles of contractual interpretation, including the bedrock proposition that, when “a contract term is ambiguous, [trial] courts should consider extrinsic evidence to resolve the ambiguity.” See Brady v. Park, 2019 UT 16, ¶ 29, 445 P.3d 395. Neither side takes issue with the court’s determination that, at least for the gap periods, the Note was ambiguous with regard to interest rate.[19] But the Estate persuasively argues that, even for gap periods, the Note does give some indication of the parties’ intent: they wanted to apply a rate equivalent to the Salomon Smith Barney brokerage rate. And the Estate points out that its expert came up with a methodology, in keeping with the parties’ expressed desire to use brokerage rates rather than presumably lower statutory rates, for estimating the brokerage rates for the gap periods, and points out that the trial court even found that methodology to be “reasonable,” at least as applied to the shorter gap periods.
¶133 Moreover, courts that have construed the UCC interest rate statute have concluded that it should not be applied in situations where “an ascertainable interest rate is provided but the sum certain requirement fails for lack of evidence concerning a reasonable rate of interest.” See Commercial Services of Perry, Inc. v.Wooldridge, 968 S.W.2d 560, 565 (Tex. App. 1998). In particular, at least where competent extrinsic evidence exists that can be utilized to estimate a reasonable rate commensurate with the parties’ intentions, courts have declined to apply statutory default rates where the parties agreed, in their instrument, to an interest rate tied to a specific bank’s prime rate and where that bank goes out of business. See, e.g., Ginsberg 1985 Real Estate P’ship v. Cadle Co., 39 F.3d 528, 533 (5th Cir. 1994) (applying “an analogous prime rate,” rather than a default statutory rate, to calculate interest after a bank failure, where the contract called for interest at that bank’s prime rate plus 1%); FDIC v. Blanton, 918 F.2d 524, 532–33 (5th Cir. 1990) (determining that a default statutory rate was “inapplicable” where the parties had agreed upon an interest rate equivalent to a specific bank’s rate plus 1% and where the bank had failed, holding that “[t]he trial judge could have applied an analogous prime rate as consistent with the intent of the parties”). We consider the failed-bank situation helpfully analogous to this one, and find the analysis applied by the courts in those cases persuasive and useful in this situation.
¶134 In those cases, courts examine extrinsic evidence to make a finding regarding a rate that would be reasonable and most in line with the parties’ intent. See Central Bank v. Colonial Romanelli Assocs., 662 A.2d 157, 158 (Conn. App. Ct. 1995) (“When a variable interest rate is based on the rate of a failed institution, the trial court must determine whether the substitute rate is reasonable by examining the documents and testimony offered by the plaintiff.”); FDIC v. Cage, 810 F. Supp. 745, 747 (S.D. Miss. 1993) (“Because the rate of interest is a term which is essential to a determination of the rights and duties of the parties and because the parties to this action understandably failed to specify the interest rate to be applied upon the failure of [an institution], it is left to the Court to determine a reasonable rate of interest.”). Importantly, “in determining reasonableness” in situations involving a failed bank, “the court need not determine the exact methodology used by the failed bank in calculating its internal interest rate; such a determination would be impossible in many circumstances. Rather, the court must determine whether the substitute rate was reasonable based on all the circumstances of the particular case.” Ninth RMA Partners, L.P. v. Krass, 746 A.2d 826, 831 (Conn. App. Ct. 2000) (quotation simplified).
¶135 In this case, the trial court did not undertake this type of analysis. Instead, without fully evaluating the reasonableness of the Estate’s proffered extrinsic evidence (chiefly, the expert’s methodology), the court jumped straight to the UCC default rate, stating that “the UCC provides an adequate remedy at law to execute the intent of the parties” and “relieves the Court from adopting” the expert’s methodology. And the court did so without making any finding that the expert’s unrebutted testimony was unreasonable or unreliable; to the contrary, the court expressly found the expert’s methodology “reasonable,” at least for use over shorter gap periods. And it made little effort to explain why it found the expert’s methodology reasonable for shorter gap periods but not necessarily for longer ones; it stated only that the expert’s gap period rates were “hypothetical and speculative,” a criticism that would seem to apply to all gap periods regardless of their length, and that will apply, at least to some extent, any time an effort is made to estimate an interest rate for a bank that, for instance, has gone out of business. Instead of explaining why it rejected the expert’s conclusions, the court simply stated that it “does not adopt” the expert’s “method as a proper means to ascertain interest,” and instead elected to apply the UCC rate. Contrary to the court’s statement, the statute did not “relieve” the court of its obligation to apply an interest rate commensurate with the intentions of the parties, nor of its obligation to grapple with, and make specific findings regarding, the credibility and reasonableness of the extrinsic evidence offered by the Estate and its expert.
¶136 Certainly, if the court had made specific and supported findings that the expert’s methodology was unconvincing and unreasonable across the board, and that therefore the Estate’s extrinsic evidence was not credible, it may have been possible for the court to default to the UCC rate. In that scenario—where the other side (Robert and Jill) did not offer any extrinsic evidence of their own and where the Estate’s evidence was deemed not credible—there would exist no competent extrinsic evidence to assist the court in ascertaining a rate reasonably equivalent to the one the parties intended, and therefore defaulting to a statutory rate may be appropriate. But absent such findings, the court should make a determination, based on the extrinsic evidence offered, as to the interest rate most reasonably equivalent to the intent of the parties as expressed in the Note.
¶137 We therefore vacate the court’s interest-rate determination, and remand the case to the trial court for reassessment of a reasonable rate of interest that best approximates the intentions of the parties. In so doing, the court should specifically assess the reasonableness of the Estate’s expert’s methodology. To the extent the court finds the expert’s methodology reasonable—as it already has with respect to short gap periods—it should apply that methodology, given the absence of other extrinsic evidence. The court should resort to the UCC statutory rate only to the extent it finds the expert’s methodology unreasonable, and not merely because the expert’s effort to estimate a rate that, by definition, does not exist is somewhat hypothetical. We imagine that this reassessment might be done by resort to the existing evidentiary record, but it will certainly be within the court’s discretion to hold additional proceedings if necessary.
C. The Form of the Judgment
¶138 Next, the Estate raises several issues with the form of the judgment the court entered in this case. First, the Estate challenges the court’s award of damages against it related to repairs to the marital home. Second, the Estate wonders who the proper judgment creditors are. Finally, and relatedly, the Estate raises setoff-related issues arising from the fact that it obtained an award against both Robert and Jill; it asks us to instruct the trial court to enter a separate judgment in favor of Robert and Jill, or to otherwise resolve the issues related to the court’s decision to set off the money owed to the Estate against the money the Estate owes to Robert. We find merit, at least to some extent, in all of the Estate’s complaints related to the form of the judgment, and we therefore vacate the court’s judgment and remand these issues to the trial court for clarification.
1
¶139 First, the Estate complains about the court’s award of damages to Robert, and against the Estate, for damages to the marital home. Its main complaint in this regard is that Robert did not point to any evidence that he—as opposed to Jeana—had actually been damaged.[20] This challenge is well-taken.
¶140 The trial court found, in determinations not challenged on appeal, that the marital home “was in excellent repair and condition” at the time of Dean’s death, but that Margene did not continue to properly maintain the property afterward. After Margene’s death, Jeana purchased the home, and made significant repairs that were necessitated by Margene’s failure to properly maintain the home. The court found that Jeana purchased the home for full value—without the benefit of any discount for the condition of the home—and then made the repairs to the home out of her own pocket. In view of these apparently undisputed facts, the court determined, in its main post-trial ruling, that the damages related to the home repairs were “owed to Jeana.”
¶141 Despite determining that any damages in this regard were owed to Jeana, the court’s judgment—entered some months after its main post-trial ruling—reflected that these damages were to be paid to Robert. Robert offers no good explanation for this, asserting simply that he and Jeana, “as beneficiaries” of the Trust, “have standing and are entitled to damages” related to the repairs to the marital home. But standing is one thing; evidence of damages is another. We agree with the Estate that Robert— personally, as distinct from Jeana—offered no evidence that he sustained damages related to the repairs to the home, and that the judgment in this case should be modified to remove any obligation by the Estate to pay Robert for those damages.
2
¶142 The Robert-or-Jeana issue related to repairs to the marital home is just one confusing result of the court’s decision to list Robert—and only Robert—as judgment creditor. By this point in the opinion, it should be apparent that—for the most part, and with certain exceptions such as perhaps the payment to Robert’s ex-wife—the damages Taylor caused were visited upon the Trust, and all its beneficiaries, and not just upon Robert. Yet the trial court—over objection—determined to list Robert as the sole judgment creditor, even though it awarded the full amount of the Trust’s damages. This was error and requires us to vacate the judgment and remand the issue for clarification.
¶143 The court can remedy this overarching error in one of two ways. First, it could elect to enter judgment in favor of not just Robert but, instead, either (a) the Trust (or, alternatively, the trustees of the Trust in their official capacity) or (b) all three beneficiaries, each to the extent of their damage. Second, it could elect to have Robert remain as the sole judgment creditor but, in this event, it would need to reduce the damages award to reflect the fact that Robert is entitled to receive only one-third of any damages sustained by the Trust.
¶144 We offer no opinion as to which option the court should choose on remand. Each has potential procedural pitfalls; from our review of the record, the party status of Jill and Jeana is somewhat unclear. But one thing the court may not do is enter judgment in favor of Robert, personally, in the full amount of the Trust’s damages.
3
¶145 Next, the Estate raises the related issue of how to memorialize the judgment in its favor, and against Robert and Jill, for unpaid interest on the Note. The court’s judgment resolved this issue by way of setoff, awarding damages to Robert and against the Estate associated with the Estate’s determined vicarious liability for Taylor’s actions as trustee, and then setting off against that amount the interest Robert owed to the Estate. The Estate complains about the way the court handled this, pointing out that—even if the court correctly applied setoff principles with regard to Robert—the court awarded no money in Jill’s favor and therefore could not have applied setoff principles with regard to Jill’s obligation to pay interest to the Estate. In other words, the Estate complains that the court held that it was entitled to recover several hundred thousand dollars from Jill but gave the Estate no way to actually go about collecting on this award. Again, the Estate’s complaint is well-taken; the court erred in the way it applied setoff principles under these circumstances.
¶146 This issue may, however, be rendered moot by this court’s determination that the Estate is not vicariously liable for Taylor’s actions as trustee, see supra Part II.A, and by its determination that the Estate is not liable to Robert (as opposed to, potentially, Jeana) for the repairs to the marital home, see supra Part II.C.1. Unless the court, after reconsidering Robert’s potential claim for constructive trust, actually imposes such a trust, no judgment will be entered against the Estate in favor of Robert or Jill. In any event, and even if the court ends up entering a judgment for constructive trust against the Estate and in favor of the Trust’s beneficiaries, the court in clarifying judgment-related issues should make sure that the judgments properly account for the Estate’s award against both Robert and Jill for unpaid interest.
D. Attorney Fees
¶147 Finally, the Estate appeals the denial of its request for attorney fees incurred in support of its claim for unpaid interest on the Note. Its claim is rooted in the language of the Settlement Agreement and related Note, which both have attorney fee provisions; the one contained in the Note requires Robert and Jill “to pay all reasonable costs and expenses of collection of any amount due under this Note including reasonable attorney’s fees.” Neither Robert nor Jill contests the Estate’s claim that, at least conceptually, the Estate would be entitled to recover attorney fees incurred in obtaining its judgment for unpaid interest on the Note. After all, the Estate prevailed on that specific claim. Indeed, in its attorney fees ruling, the trial court acknowledged that Robert and Jill “as guarantors of the [N]ote would owe fees [to the Estate] pursuant to a strictly construed reading of” the Note’s attorney fees provision.
¶148 But the trial court nevertheless denied the Estate’s claim for attorney fees, for several reasons. First, and chiefly, the court denied the Estate’s claim because, in the court’s view, the Estate had failed to sufficiently allocate its incurred fees between its successful and unsuccessful claims. Under our law, a party requesting attorney fees has an obligation to allocate its fees between claims on which it is entitled to fees and claims “for which there is no entitlement to attorney fees,” and should limit its fee request to only those specific fees incurred in aid of claims on which it is entitled to fees. See Zion Village Resort LLC v. Pro Curb USA LLC, 2020 UT App 167, ¶ 62, 480 P.3d 1055 (quotation simplified). A requesting party who fails to do so “makes it difficult, if not impossible, for the trial court to award . . . fees because there is insufficient evidence to support the award.” See Jensen v. Sawyers, 2005 UT 81, ¶ 132, 130 P.3d 325. Indeed, if a requesting party makes no effort to allocate its fees, a court “may, in its discretion,” elect to “not award wholesale all attorney fees” or may “deny fees altogether for failure to allocate.” Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8, ¶ 59, 345 P.3d 531 (quotation simplified). But a court’s discretion in this regard is not unlimited, and “is not an invitation to forego a reasoned analysis.” Id. ¶ 60. Indeed, in Burdick, our supreme court determined that a trial court had abused its discretion by denying a request for attorney fees, in its entirety, for failure to allocate, noting that the movant’s “affidavit clearly identifie[d] 282 hours attributable only to” the successful claim. Id. The court remanded the matter to the trial court to “conduct a reasonableness analysis and attempt to discern what fees may be divided between the” successful claims and the unsuccessful claims. Id. ¶ 61.
¶149 In this case, some of our rulings described herein (see supra Parts II.A, II.B, and II.C) have changed the landscape with regard to allocation enough to require a remand, so that the Estate can resubmit its fee request in light of our rulings and so that the trial court can, in light of those rulings, reassess the quality of the Estate’s effort to allocate its requested fees. Most notably here, the fees the Estate incurred in advocating for its expert’s methodology for calculating the rate of interest may—depending on how proceedings on remand turn out—need to be included in the award. But in any event, we have some concerns with the trial court’s original analysis, and we express those concerns here in an effort to provide guidance on remand.
¶150 First, we are not convinced that the Estate’s allocation efforts—even the first time around—were so poor as to necessitate a complete denial of its attorney fees claim. In its ruling, the trial court acknowledged that “the [E]state made some effort to” allocate fees, “as it removed or modified fees claimed for work advancing arguments or upon which it did not prevail.” The record bears this out. The Estate eliminated (wholly or partially) from its fee request some forty-eight line items totaling nearly $30,000 of fees. To be sure, the Estate requested over $174,000 in fees, even after the allocation, and one could conceivably argue, depending on the circumstances, that reducing only $30,000 from fees totaling more than $200,000 does not constitute sufficiently deep cuts. But the Estate’s allocation effort does, to our eye, appear to be detailed, targeted, and undertaken in good faith. The Estate’s main claim—and the primary reason for its presence in the litigation—was the one for unpaid interest on the Note; it does not seem to us implausible that the majority of its fees would have been incurred in aid of litigating that claim. In situations like this, where a party has taken a good-faith and detailed run at allocation, the better approach—if a trial court remains of the view that the cuts are not quite deep enough—is to make a reduced award rather than to deny the request in its entirety. Wholesale denial of a fee request on allocation grounds should be reserved for situations where a party either makes no effort to allocate at all, see Burdick, 2015 UT 8, ¶ 59 (stating that a court may “deny fees altogether for failure to allocate” (emphasis added)), or where a party makes only token or wholly inadequate attempts to allocate.
¶151 Next, the court mentioned several other factors that influenced its decision to deny the Estate’s fee request that were, in our view, not a proper basis for denial. For instance, the court noted that, for many years, “no significant steps were taken to timely collect on the [N]ote,” and appeared to hold this against the Estate in assessing its claim for fees. But it was the Trust’s responsibility for pursuing repayment of the Note, at least until Margene’s death (at which point unpaid interest became payable to the Estate); any delays in pursuing collection from 2004 through 2015 cannot be laid at the feet of the Estate and are, in any event, beside the point. After Margene’s death, and after the principal amount of the Note was effectively paid off in connection with the first distribution to the Trust beneficiaries, the Estate soon pursued this action to recover the unpaid interest. There is no basis to hold delays in enforcement against the Estate in connection with assessing its claim for fees.
¶152 Next, the court speculated that the provision of the Settlement Agreement directing that unpaid interest on the Note was to be paid to the Estate, rather than to the Trust and its three beneficiaries, “was contrary to the intent and past practice of” Dean, and the court stated that it was “troubled” by that provision. The court noted that this sentiment was “not central to its decision,” but it should go without saying that the court should not have taken this into account at all in connection with assessing the Estate’s fee request.[21]
¶153 In short, we vacate the court’s order denying, in its entirety, the Estate’s claim for attorney fees; we do so largely because, in our view, the rulings set forth elsewhere in this opinion have changed the landscape enough to necessitate a reassessment of that claim. And we remand the matter to the trial court for reassessment of that claim consistent with this opinion.
CONCLUSION
¶154 We reject all but one of Taylor’s arguments on appeal. The trial court did not abuse its discretion in denying Taylor’s motion to amend. Taylor has not carried his burden, on appeal, of showing error in the court’s partial summary judgment ruling, or of demonstrating abuse of discretion in its decision to exclude Taylor’s experts. We also affirm much of the court’s damages award against Taylor, but vacate the court’s award of damages against Taylor related to the payment to Robert’s ex-wife.
¶155 We find merit in most of the Estate’s arguments on appeal. The court erred in holding the Estate vicariously liable for the actions Taylor took as trustee. The court also erred in its approach to calculating the interest owed to the Estate on the Note, as well as in various aspects of its judgment. In addition, we remand the question of the Estate’s entitlement to attorney fees.
¶156 Accordingly, we vacate the judgment entered by the trial court, and remand this case for further proceedings consistent with this opinion; those proceedings should, among other things, involve evaluation of Robert’s potential claim for constructive trust against the Estate, reassessment of the amount of interest the Estate is owed, clarification of the judgment, and reassessment of the Estate’s claim for attorney fees incurred in connection with its successful claim for unpaid interest.
[1] Because several of the individuals involved in this case are members of the same family, we often refer to them by their first names, with no disrespect intended by the apparent informality.
[2] This fact, along with the others in this factual recitation, is presented “in a light most favorable to the trial court’s findings,” as is required of us in an “appeal from a bench trial.” See Huck v. Ken’s House LLC, 2022 UT App 64, n.1, 511 P.3d 1220 (quotation simplified), cert. denied, 525 P.3d 1260 (Utah 2022).
[3] In 2020, our legislature amended and renamed this statute, titling it the “Uniform Fiduciary Income and Principal Act.” Utah Code § 22-3-101. No party suggests that the recent amendments are relevant to this case. In this opinion, we refer to this statute as the UPIA, the title it had during the events giving rise to this case.
[4] Robert’s ex-wife was eventually dismissed from the lawsuit prior to trial, and is not a party to this appeal.
[5] This ruling was later amended to remove all reference to any such costs.
[6] The record is somewhat unclear as to the identity of the person(s) or entity from whom Jeana purchased the home—that is, whether she purchased the home from the Trust or bought out her siblings’ interest in the home directly after it had been conveyed to them as tenants in common. Ultimately, this issue is immaterial to our analysis.
[7] Jill and Jeana also requested an award of attorney fees, but the court denied those claims for various reasons. The propriety of those rulings is not at issue in this appeal.
[8] The judgment also recites that the court “will award attorneys’ fees to” Robert, but it makes no effort to quantify those fees. As noted, the court did later quantify those fees in a ruling issued about four months after it signed the judgment, awarding Robert $441,546.50 in fees and $137,148.38 in costs. But the record submitted to us does not include any amended or supplemental judgment including those fees.
[9] In addition to the issue it raised regarding the form of the judgment, the Estate also raised objections relating to the court’s ruling that it was jointly and severally liable for Taylor’s actions.
[10] At one point in his appellate brief, Taylor mentions in passing that the trial court “made no finding under Utah Code § 75-7814(2) regarding whether or not a lay trustee may rely on professional counsel and accounting advice, and whether such reliance demonstrates reasonable care.” That statute provides that trustees may delegate “investment and management functions” to a professional as long as the trustee engages in certain oversight, and if trustees do so, they are “not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.” Utah Code § 75-7-814(2). But Taylor did not invoke this statute in opposing Robert’s summary judgment motion, and any argument that the trial court erred by not considering the statute is therefore unpreserved. And in any event, Taylor does not argue that he delegated any specific task or function to any professional pursuant to this statute.
[11] Whether advice of counsel is the sort of affirmative defense that is considered waived if not pleaded in a responsive pleading is an interesting question. We are aware of Utah law stating that, at least in certain contexts, “reasonable reliance on the advice of counsel is an affirmative defense.” See Hodges v. Gibson Products Co., 811 P.2d 151, 159–60 (Utah 1991). But other courts have held that, at least in some circumstances, advice of counsel does not need to be pleaded in an answer. See, e.g., LG Philips LCD Co. v. Tatung Co., 243 F.R.D. 133, 139 (D. Del. 2007). Because the parties have not briefed this issue, and because it is only tangentially related to the question at hand, we offer no opinion on whether advice of counsel is the sort of affirmative defense that is waived if not included in a responsive pleading.
[12] Taylor argues that the court should not have considered much of this evidence because it was attached to Robert’s reply brief submitted in support of his summary judgment motion. He argues that Robert’s “obligation was to present all claimed relevant facts with his initial motion” and that “[n]ew materials cannot be raised in a reply memorandum.” But Robert did not raise any new issue in his reply; he merely responded to Taylor’s claims—included in his memorandum opposing Robert’s motion—regarding IRA ownership. The court did not err in considering the materials Robert submitted in connection with his reply brief in support of his motion.
[13] The court did, however, allow one of Taylor’s financial experts to offer rebuttal testimony at trial.
[14] In this same vein, Taylor makes a cursory and unsupported allegation in his brief that Robert cannot recover for “hypothetical growth in value” of Trust assets because his expert “[r]elied on [s]peculative [a]ssumptions.” But he does not suggest what these speculative assumptions were. Thus, this allegation, like some of his other damages assertions, is inadequately briefed.
[15] Taylor does not appeal the question of whether he—as opposed to Margene or the Estate—should be liable for the repairs to the marital home. Per the Trust, it was Margene—and not the trustee—who was responsible for “perform[ing] such repairs and maintenance as may be required to maintain the property in the condition it was maintained prior to [Dean’s] death.” Because this issue was not appealed, we do not address its merits.
[16] We are also aware of Taylor’s motion, filed with this court on June 30, 2023, asking us, “pending [our] imminent ruling,” to stay enforcement of the judgment. However, now that we have decided the case, the motion to stay has been rendered moot. See M.N.V. Holdings LC v. 200 South LLC, 2021 UT App 76, ¶ 17 n.10, 494 P.3d 402 (determining that a motion to stay had been mooted by the issuance of the opinion); Koyle v. Davis, 2011 UT App 196, ¶ 7, 261 P.3d 100 (per curiam) (recognizing that our resolution of a case on appeal “renders the motion to stay moot”), cert. denied, 263 P.3d 390 (Utah 2011).
[17] Similarly, the Estate’s failure to object to evidence that could conceivably have supported a constructive trust claim does not constitute implied consent to trial of an unpleaded vicarious liability claim. See Hill v. Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929. As discussed below, Robert may or may not have properly pleaded a claim that a constructive trust be imposed on Estate assets, at least to the extent that those assets consist of wrongfully distributed Trust principal; we offer no opinion on that question. But even assuming, for purposes of this discussion, that he did properly plead a claim for constructive trust, such a claim is a far cry from a claim for complete vicarious liability for all actions, and the Estate’s perceived acquiescence in admission of evidence supporting a constructive trust claim does not necessarily signal consent to trial of a vicarious liability claim.
[18] At oral argument before this court, Robert’s attorney hinted at a fourth theory, and suggested that the court, in ruling that the Estate was vicariously liable for Taylor’s actions as trustee, might have been applying a contract-based construct. But the court’s written rulings on this topic do not appear to rely on any such theory. In addition, we are aware of no specific contractual obligation that might be utilized for this purpose. The only obligation Margene had under the Trust documents was the duty to keep the home in good condition. She was never the trustee, never had any authority to distribute Trust assets, never signed the Trust, and did not receive Trust assets upon any condition, and therefore never had any contractual obligation regarding those assets. See, e.g., Bloom Master Inc. v. Bloom Master LLC, 2019 UT App 63, ¶ 13, 442 P.3d 1178 (“To form an enforceable contract, the parties must have a meeting of the minds on the essential terms of the contract.” (quotation simplified)). We therefore reject any contract-based argument for vicarious liability.
[19] And neither Robert nor Jill makes any argument that the UCC rate should apply whenever contractual ambiguity exists with regard to the interest rate. In general, “a court’s legal determination that ambiguity exists within a text leads to the conclusion that” a factfinder will need to consider extrinsic evidence. See Jessup v. Five Star Franchising LLC, 2022 UT App 86, ¶ 42, 515 P.3d 466. This general principle appears to apply here. At least, neither Robert nor Jill makes any assertion that, given the language of the UCC, this constitutes one of those “other specific areas of the law . . . where clarity between parties is itself at issue” and in which “the presence of ambiguity . . . suggests that a party may be entitled to a judgment as a matter of law.” Id. (describing some of those exceptional situations). That is, Robert and Jill do not assert that the UCC rate should apply whenever ambiguity in the words used in the instrument prevents a court from easily ascertaining the agreed-upon interest rate. See Utah Code § 70A3-112(2). Because Robert and Jill do not make this argument, we offer no opinion as to its merits.
[20] The Estate also complains about the amount of this damages award, asserting that it should be for $29,439 instead of $33,500. There was evidence supporting both damages figures, and the trial court was within its discretion to select the slightly higher one. We therefore reject the Estate’s challenge to the amount of this portion of the damages award.
[21] The Estate also asserts that the trial court more heavily scrutinized its fee request than it did Robert’s, asserting that—like the Estate—Robert also failed to prevail on all of his claims and motions, and therefore should also have been required to allocate his requested fees between successful and unsuccessful endeavors. The propriety of the court’s fee award to Robert is not at issue in this appeal, and we therefore decline to comment on the court’s handling of Robert’s fee request, other than to state that courts should, of course, evaluate fee requests from the various parties in the case by the same standards.
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Jillyn Smith appeals the district court’s order regarding custody and child support for her minor son (Child). Because we determine the court abused its discretion by awarding Smith sole physical and legal custody while requiring joint decision-making between Smith and Child’s father, DeJuan Blake, we vacate that part of the court’s custody award. Furthermore, because we conclude the court made a mathematical error in calculating the amount of child support, and that a further examination of the evidence of Blake’s income is warranted, we reverse the court’s child support award and remand for recalculation as appropriate.
BACKGROUND
¶2 Smith met Blake in 2007 in Las Vegas, Nevada, and the two entered into a relationship. As a result of the relationship, Smith became pregnant with Child in 2009. At the time Smith learned about the pregnancy, she was no longer living in Las Vegas—she had moved to Utah to escape her relationship with Blake.
¶3 After a tumultuous pregnancy, during which Blake continuously asked Smith to have an abortion, Child was born in Utah in October 2009. Blake traveled to Utah to visit Child twice during the first year of Child’s life, with each visit lasting “maybe an hour or two.” The sporadic visits continued over the next few years, with Child and Smith traveling with Blake on short trips together. Although Smith asked Blake for financial support during this time, Blake did not provide support and instead always offered an “excuse.” Eventually, the communications between the couple became too toxic and Smith elected to “take a break from communication” with Blake.
¶4 Thereafter, Smith decided to “give [Blake] a second chance.” Blake and Child had “maybe a few” “infrequent[]” telephone conversations a year, but the conversations were short due to Child’s speech impediment. Blake was not involved in Child’s schooling or scheduling, he never attended Child’s doctor’s appointments, and he “wouldn’t follow through” or offer any explanation as to why he could not help Smith with financial support for Child’s medical care or educational needs.
¶5 Blake traveled to Utah in 2015 to attend Child’s birthday party. Toward the end of the party, Blake and Smith had a verbal altercation regarding Blake’s failure to honor their agreement for Blake to pay Smith child support. Following this visit, Blake returned to Utah once in 2016 to attend Child’s baseball game. That visit also ended in a verbal altercation.
¶6 In January 2018, Blake petitioned the district court for paternity and custody of Child. At the time, Child was eight years old and living with Smith.
¶7 After initiating custody proceedings, Blake filed a series of three financial declarations with the district court. Blake is self-employed and owns a company managing professional and aspiring boxers. Blake’s stated gross income, monthly expenses, and debt listed on each of the three financial declarations differed significantly. In the first declaration, Blake claimed $0 in gross monthly income, $1,875 in monthly expenses, and a debt of $7,240. In the second, Blake claimed $2,000 in gross monthly income, $17,797 in monthly expenses, and no debt. And in the third, Blake claimed $1,686 in gross monthly income, $3,947 in monthly expenses, and no debt. The bank statements filed with each disclosure were incomplete; however, the bank statements that were submitted showed that between August 2017 and January 2019, Blake made deposits into his personal account totaling $456,669.98, and that during that same time, he made withdrawals totaling nearly $50,000 for investments in cryptocurrency, payments to his mother, payments to the mother of one of his other children, and luxury clothing.
¶8 The case proceeded to a bench trial in October 2020. At trial, Smith detailed the relationship between Child and Blake. She explained that Blake had never been actively involved in Child’s life and that Blake had not seen Child at all since May 2016. Smith testified that she and Blake had reached an “original agreement” for child support where Blake would pay her $1,000 per month. She further testified that this agreement did not start until 2015—when Child was already six years old—and that the payments had lasted for only one month. In total, Smith estimated that Blake had contributed $1,600 in support payments “over the entirety of [Child’s] life.”
¶9 Following trial, the district court adjudicated Blake as Child’s father, awarded Smith sole physical and legal custody of Child, and awarded Blake standard relocation parent-time pursuant to Utah Code section 30-3-37, which is approximately 17% of the year. In reaching its legal custody determination, the court analyzed the statutory factors outlined in Utah Code sections 30-3-10 and 30-3-10.2 and concluded that the presumption favoring joint legal custody had been rebutted and that joint legal custody was not in Child’s best interest. However, the court ordered a joint decision-making arrangement between the parties, requiring that the parties “discuss with each other decisions that should be made regarding [Child].” The arrangement further provides, “If there is a dispute, the parties should attend mediation and each pay half of the mediation fees. If the dispute remains, then [Smith] will have final say. [Blake] can . . . bring the matter to court if he is unsatisfied with the decision.”
¶10 Regarding child support, the district court primarily calculated Blake’s past child support payments based on his 2018 tax record, where he claimed $45,050 in gross receipts and $34,483 in deductions. After reviewing the evidence, the court concluded that several of the deductions—totaling $27,530—were unsupported and accordingly struck those deductions. Based on this, the court found that Blake’s “annual income should be $23,790” through March 2020. However, given the outbreak of the COVID-19 pandemic, the court concluded that “Blake’s income has come to a halt,” and it accordingly found it “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.”
ISSUES AND STANDARDS OF REVIEW
¶11 Smith now appeals the district court’s order regarding custody and child support, raising two issues for our review. First, Smith argues the court abused its discretion when it “issued an internally inconsistent [custody] award” giving Smith “sole legal and physical custody but also order[ing] joint decision-making” between her and Blake. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (quotation simplified). “But this broad discretion must be guided by the governing law adopted by the Utah Legislature. And on matters of statutory interpretation, we review for correctness.” Dahl v. Dahl, 2015 UT 79, ¶ 155, 459 P.3d 276 (quotation simplified). And “[w]here the court’s findings are internally inconsistent on a material point, reversal and remand are appropriate.” Vandermeide v. Young, 2013 UT App 31, ¶ 21, 296 P.3d 787, cert. denied, 308 P.3d 536 (Utah 2013).[1]
¶12 Second, Smith argues the district court abused its discretion when it calculated Blake’s income for purposes of child support. “We review the district court’s decisions regarding child support . . . under the abuse of discretion standard.” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 13, 508 P.3d 612 (quotation simplified). Where the court’s findings contain mathematical error or conflict with the record, we will remand for recalculation. See Miner v. Miner, 2021 UT App 77, ¶¶ 57–60, 496 P.3d 242.
ANALYSIS
I. Custody
¶13 Smith first challenges the district court’s custody award, contending the court abused its discretion in crafting the award because it is “internally inconsistent.” According to Smith, the joint decision-making arrangement “undermines” her award of sole physical and legal custody because it “allows [Blake] to force mediation and litigation whenever he disagrees with a decision made by [Smith], even though she has sole legal and physical custody.” We agree.
¶14 As an initial matter, the Utah Code does not define “sole physical custody” or “sole legal custody.” But in Hansen v. Hansen, 2012 UT 9, 270 P.3d 531, our supreme court provided guidance as to the meaning of those terms. In Hansen, the father and the mother were awarded joint custody of their daughter following their divorce. Id. ¶ 2. The mother was awarded sole physical custody and the father was ordered to pay child support to the mother. Id. Sometime later, the daughter entered a private youth homeless shelter, where she lived through her eighteenth birthday. Id. While the daughter was living at the shelter, the father filed a petition with the district court seeking to redirect his child support payments from the mother to the homeless shelter. Id. ¶¶ 2–3. The court denied the motion, which denial was ultimately upheld by the Utah Supreme Court. Id. ¶¶ 4–5, 30.
¶15 The supreme court’s decision centered on the meaning of custody. Although the daughter had been residing at the shelter, the court determined that the daughter’s physical custody had not changed; rather, the mother still retained physical custody. Id. ¶¶ 15–19, 28. The court explained,
Family law treatises consistently define custody as a bundle of constituent rights and obligations to a child’s possession, care, and control, and explain that the essence of custody is control over all aspects of the child’s life coupled with responsibility for the child’s welfare. Standard dictionary definitions of custody are to the same effect.
Custody is often divided into two subsets: legal and physical custody. Both encompass a duty of control and supervision. While legal custody carries the power and duty to make the most significant decisions about a child’s life and welfare, physical custody involves the right, obligation, and authority to make necessary day-to-day decisions concerning the child’s welfare. Although the latter is limited to the right to control the child’s daily activities, it still involves a right of control. This grant of authority is necessary so that the custodian can control and discipline the child or make emergency medical or surgical decisions for the child.
Id. ¶¶ 16–17 (quotation simplified). Put differently, “the legal duty of control or supervision [is] the essential hallmark of custody.” Id. ¶ 18 (quotation simplified). Legal custody encompasses the ability to make major decisions in a child’s life, while physicalcustody encompasses the ability to make day-to-day decisions in a child’s life.
¶16 Although the Utah Code does not define sole physical or legal custody, it does define “joint legal custody” and “joint physical custody.”[2] Under the current statutory scheme, a parent may be awarded “joint legal custody,” which is defined as “the sharing of the rights, privileges, duties, and powers of a parent by both parents.” Utah Code § 30-3-10.1(2)(a) (emphasis added). As this court has long recognized, the purpose of joint legal custody is to allow “both parents [to] share the authority and responsibility to make basic decisions regarding their child’s welfare.” See Thronson v. Thronson, 810 P.2d 428, 429–30 (Utah Ct. App. 1991), cert. denied, 826 P.2d 651 (Utah 1991).
¶17 Taken together, it follows that an award of “sole” legal custody does not involve sharing the “rights, privileges, duties, and powers of a parent.” See Utah Code § 30-3-10.1(2)(a). Accordingly, when the district court awarded sole legal and physical custody to Smith, it also awarded her alone the “rights and obligations to [Child’s] possession, care, and control,” see Hansen, 2012 UT 9, ¶ 16 (quotation simplified), including the sole authority to “make the most significant decisions about [Child’s] life and welfare,” see id. ¶ 17 (quotation simplified), and the “authority to make necessary day-to-day decisions concerning [Child’s] welfare,” see id. (quotation simplified). It therefore was inconsistent to simultaneously order a joint decision-making arrangement.
¶18 Moreover, the joint decision-making arrangement is at odds with the district court’s own findings regarding Child’s best interest. “In making a custody determination, a [district] court’s primary focus is what custody arrangement would be in the best interest[] of the child.” Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 4, 241 P.3d 365. Utah law presumes that joint legal custody is in a child’s best interest, but that presumption may be rebutted by showing “by a preponderance of the evidence that it is not in the best interest of the child.” Utah Code § 30-3-10(3)–(4). And under Utah law, there is “neither a preference nor a presumption for or against joint physical custody or sole physical custody.” Id. § 303-10(8).
¶19 “In 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” a number of statutory factors. See id. § 30-3-10.2(2). Here, the court analyzed the statutory factors and determined that awarding Smith sole legal and physical custody of Child was in Child’s best interest. In particular, the court found that there was “very little evidence provided that either parent could function appropriately with co-parenting skills,” that it was “unclear” whether the parties could work together to reach shared decisions in Child’s best interest, and that there was “very little evidence” the parties “actually discussed and made decisions together.” In light of these findings, it is unclear how the joint decision-making arrangement—which is not limited to major decisions but instead encompasses all decisions—could be properly viewed as advancing Child’s best interest. It does not follow from the evidence of the parties’ ongoing issues making decisions relating to Child that such an arrangement would lead to success in the future. Rather, precisely because of the court’s findings, it seems likely that such an arrangement would cause ongoing issues, result in costly mediation and additional court involvement, and be detrimental to Child’s best interest, which is exactly what Utah law seeks to avoid.
¶20 In sum, the district court abused its discretion when it awarded Smith sole physical and legal custody while also ordering a joint decision-making arrangement between Smith and Blake. Although Utah law does not prohibit a joint decision-making arrangement in cases involving an award of joint physical and legal custody, an examination of the underlying statutory scheme reveals that such an arrangement is not compatible with an award of sole physical and legal custody. Furthermore, these competing provisions belie the court’s own findings regarding Child’s best interest as relates to custody. As such, we vacate the portion of the court’s custody award ordering the joint decision-making arrangement.
II. Child Support
¶21 Smith next argues the district court erred in calculating child support. Specifically, Smith takes issue with the court’s calculation of Blake’s income for purposes of child support, contending the court’s calculation (1) contains a mathematical error and (2) is inconsistent with the evidence in the record. We agree.
¶22 The Utah Child Support Act outlines the process by which a district court must evaluate the income of a parent when calculating child support. See generally Utah Code § 78B-12-202. To begin, the court must consider the “gross income” of a parent, which the Utah Code defines broadly as including
prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “nonmeans-tested” government programs.
Id. § 78B-12-203(1). And when a parent is self-employed—as is the case with Blake—the statute directs how gross income should be handled. It provides that “[g]ross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. . . . Gross income . . . may differ from the amount of business income determined for tax purposes.” Id. § 78B-12-203(4).
¶23 The district court determined that Blake’s income had been impacted as a result of the COVID-19 pandemic and accordingly evaluated his income for purposes of child support based on what he had earned pre-pandemic and what he was earning during the pandemic. On the record before us, we see two errors in the court’s calculations. First, the court made a discrete mathematical error in calculating Blake’s pre-pandemic income. Second, and more broadly, the court did not consider all the evidence of Blake’s finances when calculating Blake’s income, both pre-pandemic and at the time of trial.
¶24 First, the district court calculated Blake’s past child support payments using his 2018 tax record. On that record, Blake claimed $45,050 in gross receipts. From that, Blake deducted $34,483 as follows: $5,270 for “materials and supplies,” $3,605 for “advertising,” $360 for “legal and professional services,” $500 for “office expense,” $21,760 for “other business property,” and $2,988 for “utilities.” After viewing the evidence, the court found that Blake had failed to adequately explain why he should be entitled to deductions for “materials and supplies” ($5,270), “other business property” ($21,760), or “office expense” ($500), and it accordingly struck those deductions, totaling $27,530. As a result, the court should have concluded that Blake’s income was $38,097, or $3,175 per month rounded. But it did not. Instead, it concluded that Blake’s income was $23,790, or $1,983 per month. This value is mathematically incorrect.
¶25 Second, notwithstanding the mathematical error in the court’s calculation of Blake’s income, the value imputed by the court is inconsistent with the evidence in the record. Utah law is clear that “in contested cases,” a judge is entitled to impute income to a parent so long as the judge “enters findings of fact as to the evidentiary basis for the imputation.” See id. § 78B-12203(8)(a). “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). Accordingly, when imputing income, “the income shall be based upon employment potential and probable earnings considering,” among other things, “employment opportunities,” “work history,” and “occupation qualifications.” Utah Code § 78B-12203(8)(b).
¶26 As explained above, the court calculated Blake’s income at $1,983 per month up until the time that the COVID-19 pandemic began in March 2020. And at trial, which was held in October 2020, the court concluded that due to the pandemic, “Blake’s income has come to a halt” and therefore determined it was “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.” But the financial documents submitted by Blake do not support the low amount of income the court chose to impute.
¶27 Blake’s bank records—which were all filed with the court—show that Blake made deposits into his personal account totaling $456,669.98 between August 2017 and January 2019. These deposits included a check for $200,000, which Blake testified “was for my services that was rendered” in connection with a high-publicity boxing match. And in addition to the deposits, Blake’s bank records show significant withdrawals. For example, the records indicate that Blake had regularly invested in cryptocurrency, had transferred over $15,000 to his mother, had transferred over $9,000 to the mother of one of his other children,[3] and had spent over $10,000 on luxury clothing.
¶28 Despite the evidence of Blake’s spending, Blake did not demonstrate how he was funding his lifestyle, and he claimed only one debt of $7,240 in the first of his three financial disclosures. In light of the foregoing, the district court’s determination that Blake was making no money and therefore should be imputed minimum wage is not supported by the evidence. Rather, the evidence suggests that Blake was less than forthcoming with the court as to the actual amount of his income. As such, on remand the court should reevaluate evidence of Blake’s finances, his earning capacity, and whether he is voluntarily underemployed and should make a further determination as to whether greater income should be imputed to him.[4] In so doing, the court should take special care to ensure that the final award is void of mathematical error.
CONCLUSION
¶29 The district court abused its discretion when it awarded Smith sole physical and legal custody of Child while also ordering a joint decision-making arrangement with Blake. We therefore vacate the court’s custody ruling as it relates to the joint decision-making arrangement. The court also abused its discretion when calculating child support. The current award contains a mathematical error and is not supported by record evidence. Accordingly, we reverse the court’s award of child support and remand with instructions that the court reexamine the evidence to determine whether greater income should be imputed to Blake.
[1] Blake did not file a brief or otherwise appear in this appeal. Although “an appellee’s failure to file a brief does not amount to an automatic default and consequent reversal of the lower court,” our supreme court has recently recognized that such failure does impact the “typical burden of persuasion on appeal.” See AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation simplified). Because an appellee’s failure to raise any argument leaves the appellant’s claims “unrebutted,” see Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶¶ 18–21, 279 P.3d 391, “when an appellee fails to present us with any argument, an appellant need only establish a prima facie showing of a plausible basis for reversal,” AL-IN Partners, 2021 UT 42, ¶ 19 (quotation simplified). We question whether the standard articulated in AL-IN Partners should apply the same way in cases such as this where the standard of review on appeal is deferential to the discretionary decisions of the district court. But because this issue was not briefed and our decision on both arguments presented ultimately involves the conclusion that the district court did abuse its discretion and committed other errors, we need not decide the issue today. However, we note the question does warrant additional consideration in a case where it is squarely before the court.
[2] In relevant part, the statute defines “joint physical custody” as when “the child stays with each parent overnight for more than 30% of the year.” Utah Code § 30-3-10.1(3)(a). This particular provision is not applicable here because Blake was awarded standard relocation parent-time which falls below the 30% threshold. See id. § 30-3-37. Nevertheless, Utah law is clear that “[e]ach parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent.” Id. § 30-3-10.9(6). Thus, by statute Smith has sole decision-making authority over day-to-day decisions when Child is in her care. Likewise, Blake has decision-making authority over day-to-day decisions when Child is in his care.
[3] This amount does not include child support payments awarded to the mother, which were $1,000 per month. Those support payments were made directly to Nevada’s State Collection and Disbursement Unit.
[4] Smith filed a post-trial motion pursuant to rule 59(e) of the Utah Rules of Civil Procedure seeking to amend, among other things, the court’s child support award. The district court issued a Memorandum Decision and Order denying the motion. In analyzing the child support issue, the court stated that “[g]ifts are not generally considered income.” This is legally incorrect. As explained above, the Utah Code explicitly defines “gross income” as including “gifts from anyone.” See Utah Code § 78B-12-203(1). To the extent Blake was gifted items, the court must include the value of those gifts when calculating his income.
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.
MORTENSEN, Judge:
¶1 Houston Raefat Hararah was charged with assault for throwing a potted plant at his then-girlfriend. He waived his right to a preliminary hearing and proceeded to trial, following which he was convicted. He now contends that he was coerced into waiving his right to a preliminary hearing because the district court[1] stated, at various points in the proceedings, that it would not permit Hararah to accept any plea deal if he chose to have a preliminary hearing. But the record indicates that Hararah rejected the State’s “best offer” and independently decided to waive the preliminary hearing and proceed to trial, so we cannot agree that the court forced his waiver. Hararah also asserts that his defense counsel (Counsel[2]) provided ineffective assistance for not objecting to the court’s allegedly problematic statements, as well as for telling the jury, during opening statements at trial, that they would not hear that Hararah had punched the victim, when the victim went on to testify that he did so. We do not agree that his counsel performed deficiently in either respect, so we affirm.
BACKGROUND
¶2 After police responded to an argument between Hararah and his then-girlfriend, Hararah was charged with assault, with a domestic violence enhancement. The Information alleged that Hararah “threw a potted plant at his girlfriend[,] striking her in the face and causing a cut above her eye.” As a result, the district court issued a no-contact order against Hararah. At a hearing to review the no-contact order, held in July 2020, the following exchange took place between Hararah, the district court, and Counsel:
Counsel: Judge, do you want to keep [the next hearing] on the 28th? I think that at this point, I’ve discussed a plea with Mr. Hararah and it looks like we’re probably going to be setting it for a preliminary hearing.
District Court: Well, let’s go ahead and . . . take it on the 28th and see—Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.
Hararah: Yes, Your Honor.
District Court: Okay. Well, you think long and hard on that and I’ll talk to you on the 28th. Thank you.
¶3 The minutes for the next hearing, held in August 2020, indicate that “[t]he defendant request[ed] a Preliminary Hearing” and that “the [c]ourt set[] this matter for Preliminary Hearing.”
¶4 In court on the date set for the preliminary hearing, in September 2020, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Then the following exchange took place:
District Court: So you talked to [Counsel] about what a preliminary hearing is[,] right?
Hararah: Yes.
District Court: Okay. And you are, in fact, willing to waive your rights to a preliminary hearing and allow the matter to be bound over; is that correct?
Hararah: Yes.
District Court: Very good. I will go ahead and allow the waiver[;] I’ll bind the matter over. How long do you think you need to have discussions, [Counsel]?
Counsel: Your Honor, I think that the best offer has been made and Mr. Hararah has had a chance to discuss it, and I think we’re just going to need to figure out when we can get it on for a trial as soon as possible in front of a jury.
Later in the hearing, the district court added,
District Court:
[W]e will have a trial as soon as possible. And seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation.
¶5 The case eventually went to trial, and during opening statements, Counsel said to the jury, “You will not hear any testimony about [Hararah] punching [the alleged victim] . . . . [Y]ou’ll hear . . . that the only item that he had to protect himself from [a] taser [the alleged victim held] was the plant that was on the floor. And he picked it up and he threw it so that he could get out . . . .”
¶6 But when the victim testified, she stated that Hararah had hit her through a pillow. She testified that the pair had been drinking and started arguing when “[a] verbal argument turned into a physical [one].” She said, “I had tried knocking over his drink. I knew the conversation wasn’t ending anywhere. He ended up on top of me hitting me.” She described how she tried to leave the room but “was hit in the face” with “a pillow and his fist.” She clarified that “he was punching [her] and hitting [her] through the pillow.”
¶7 Later in the trial and outside the presence of the jury, Counsel objected to “the uncharged misconduct that we’ve now heard about for the first time today, which is this witness . . . now saying that she was punched in the face by Mr. Hararah prior to the throwing of the plant.” Counsel asserted, “That is nowhere in the State’s discovery. It is not in the officer’s report, it isn’t anywhere in the body cam. And so what we are now entertaining is the fact that these jurors can . . . believe that the bruising on her face comes from those punches rather than from the plant.” Counsel explained why this was problematic: “We don’t have the ability to bring in a rebuttal expert to say, ‘Hey, do you think these bruis[es] came from punching or . . . from a plant?’ So, I maintain that [this] is prejudicial.” The trial court responded, “I’ve previously ruled during the course of the trial that I would allow the testimony as long as it was consecutive to the day . . . in question [and] I would allow testimony from . . . the witness about the arguing and the conduct that happened during that date in question.”
¶8 The State went on to call the deputy who had arrested Hararah. On cross-examination, he testified that “[t]he only assault [he] was aware of was the plant being thrown,” and he agreed that if the victim had “mentioned being punched in the face, [he] would have put that in [his] report.” In closing arguments, Counsel portrayed the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony.
¶9 Ultimately, the jury found Hararah guilty of domestic violence-related assault. Hararah now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Hararah presents two issues on appeal. First, he asserts that the district court erred “when it coerced [him] into waiving his right to a preliminary hearing by threatening to not allow him to accept a plea bargain from the State if he exercised his fundamental right to a preliminary hearing.” He argues that this error “violated Article I, Section 13 and Article V, Section 1 of the Utah Constitution; Utah Rules of Criminal Procedure 7(e) and 11(i); and our adversarial system of justice.” Hararah admits that this “issue was not preserved,” but he claims that “either the exceptional circumstances exception or the plain error exception applies here.”
¶11 Second, Hararah asserts that Counsel provided ineffective assistance in two respects: (1) by “fail[ing] to object to the district court coercing [Hararah] into waiving his fundamental right to a preliminary hearing” and (2) by telling the jury “during opening statements that the jury would not hear any testimony about the alleged victim being punched.” “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and [the appellate court] must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).
ANALYSIS
Preliminary Hearing Waiver
¶12 Hararah argues that the district court “violated [his] rights . . . when it—by threatening to prevent him from accepting a plea deal from the State—forced him to waive his right to a preliminary hearing.” Hararah acknowledges that he did not object or otherwise preserve this argument. He argues that either the plain error exception or the exceptional circumstances exception applies. But Hararah cannot prevail under either theory.
Plain Error
¶13 To show plain error, “a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (cleaned up).
¶14 We first address Hararah’s argument that the district court erred by “coercing” or “forcing” him to waive his right to the preliminary hearing. Hararah takes issue with the district court’s statement made at the July 2020 hearing: “Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.” The advisability of this comment[3] is immaterial here because the record indicates that Hararah chose to waive his right to a preliminary hearing for reasons unrelated to the district court’s statement. In other words, the record is clear that the court did not, in fact, force or coerce Hararah to waive the preliminary hearing because he made an independent choice to waive it.
¶15 At the outset of the September 2020 hearing, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Critically, Counsel also said during that hearing that “the best offer has been made and Mr. Hararah has had a chance to discuss it, and I think we’re just going to need to figure out when we can get [the case set] for a trial as soon as possible in front of a jury.”
¶16 We make much of the fact that Hararah waived his preliminary hearing in the same hearing in which he expressed his rejection of the State’s “best” plea offer. This shows that Hararah’s waiver was not based on the possibility of future bargaining or a fear that he would not be able to accept a plea deal if he had a preliminary hearing. Counsel did not indicate that Hararah anticipated any plea bargain better than the one the State had offered—as the plea bargain offered was already the “best offer” possible; instead, Counsel represented that Hararah had considered the offer and had decided to proceed to trial rather than accept the offered bargain. And Counsel did not mention the idea that the preliminary hearing was being waived to keep open the prospect of a future plea deal.
¶17 Hararah fails to provide us with any evidence supporting a belief that his independent desire to proceed to trial—after rejecting the State’s “best offer”—was not what drove his decision to waive his right to a preliminary hearing. If Hararah had represented in any way that he was forgoing the preliminary hearing because he was planning to accept a plea deal or wanted to keep his options open, the case before us would be quite different. But instead, the record demonstrates that Hararah was forgoing the preliminary hearing after having fully considered and rejected the State’s best offer and with the goal of going to trial as soon as possible. Accordingly, Hararah has not shown that any error took place, because there is no indication that the district court’s comment had any effect on Hararah’s actions.
¶18 Similarly, the district court’s post-waiver statement that “seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation” had no bearing on Hararah’s decision to waive his right to a preliminary hearing. At that point, Hararah had already made his decision to forgo the preliminary hearing, and he had also already rejected the State’s best plea offer.
¶19 Furthermore, even if we assume that the district court’s comments alone—rather than Hararah’s counterfactual claimed reliance on them—constituted error, Hararah has not met his burden on plain error review to show prejudice. The record shows that Hararah would have taken the same course of action whether or not the district court made the comments at issue. The same facts discussed above indicate that even if the statements had never been uttered, Hararah would have been presented with and rejected the State’s “best offer” and would have wanted to move as quickly as possible toward trial, including waiving his preliminary hearing. Accordingly, Hararah’s claim on this point fails.[4]
¶20 Moreover, even if “an error exist[ed]” that “should have been obvious to the [district] court,” Holgate, 2000 UT 74, ¶ 13 (cleaned up), any such error was cured by Hararah’s conviction by a jury, see State v. Aleh, 2015 UT App 195, ¶¶ 13–18, 357 P.3d 12, cert. denied, 366 P.3d 1213 (Utah 2016). In Aleh, a defendant “contend[ed] that the trial court erred in denying his motion to withdraw the waiver of his right to a preliminary hearing.” Id. ¶ 13. This court determined that because the “sole purpose” of a preliminary hearing is “determining whether probable cause exists,” “an error at the preliminary stage is cured if the defendant is later convicted beyond a reasonable doubt.” Id. ¶¶ 14–15 (cleaned up). And “[t]his is so even when the error consists of a complete deprivation of a preliminary hearing.” Id. ¶ 16.[5] “Because conviction beyond a reasonable doubt cures any flaw in a preliminary hearing—including the complete deprivation of a preliminary hearing—it necessarily cures any error the [district] court may have made in accepting a defendant’s waiver of the right to a preliminary hearing.” Id. ¶ 18.[6] “Accordingly, [Hararah’s] conviction of all charges beyond a reasonable doubt cured any possible error attending his waiver of a preliminary hearing.” See id.
¶21 Ultimately, Hararah’s argument of plain error fails.
Exceptional Circumstances Doctrine
¶22 We apply the exceptional circumstances doctrine “to reach an unpreserved issue where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses a failure to do so.” State v. Johnson, 2017 UT 76, ¶ 29, 416 P.3d 443 (cleaned up). Hararah argues that “[b]ecause it is procedurally uncommon in Utah to have a district court force a criminal defendant to waive his constitutional right to a preliminary hearing, a rare procedural anomaly occurred.”
¶23 But the claimed procedural anomaly did not actually occur. Hararah’s argument points to the presumed effect of the district court’s statements (namely, “forc[ing]” Hararah “to waive his constitutional right to a preliminary hearing”) rather than the mere occurrence of the statements as the “rare procedural anomaly.” But as we have explained, Hararah was not forced into waiving his right to a preliminary hearing, because he chose to waive that right for reasons independent from the district court’s comments. The absence of an actual “rare procedural anomaly” alone defeats Hararah’s argument as to the applicability of the exceptional circumstances doctrine, but this is not all.
¶24 Even if we assume that the district court’s statements constituted a “rare procedural anomaly,” Hararah would need to show that they “either prevented [him] from preserving an issue or excuse[d] a failure to do so.” See id. Hararah does not attempt to explain what prevented him from objecting to the district court’s statements and thereby preserving the issue. In reality, there was nothing preventing him from doing so. Hararah could have objected when the district court made the first statement at the July 2020 hearing. But this is not a case where a defendant had only one opportunity to object to an alleged error. Hararah could have taken time to review the issue and objected during the August 2020 hearing. Or he could have objected after the district court’s follow-up comment at the September 2020 hearing. Furthermore, before trial, Hararah could have filed a motion to withdraw his waiver. On this record, Hararah had time and multiple opportunities to object or preserve this issue, and he did not do so.
¶25 Moreover, we are not convinced that Hararah’s failure to preserve the issue is excusable. While we recognize the fundamental nature of the preliminary hearing and we protect defendants’ constitutional rights to preliminary hearings, we also recognize that a defendant has the constitutionally guaranteed right to waive the preliminary hearing. See Utah Const. art. I, § 13 (protecting the right to a preliminary hearing “unless the examination be waived by the accused with the consent of the State”); see also, e.g., Hafen v. State, 2011 UT App 85, ¶¶ 3–4, 249 P.3d 1006 (per curiam) (“[The defendant] filed his petition asserting that he was deprived of his preliminary hearing. . . . The petition was inconsistent with and [superseded] by [the defendant’s] waiver. [The defendant] was not deprived of any right to a preliminary hearing.” (cleaned up)). Waiving a preliminary hearing may have negative implications, but this reality does not invalidate a qualifying waiver. See State v. Bragg, 2013 UT App 282, ¶ 40, 317 P.3d 452 (“[The defendant] waived his right to a preliminary hearing, [forgoing] one opportunity to explore the exact nature of the charges against him and resolve any confusion about what those charges entailed.”). While Hararah may, in retrospect, have benefitted from taking the opportunity to develop the victim’s testimony at the preliminary hearing, this does not invalidate his waiver. And his regrets do not excuse his failure to preserve this issue. Therefore, the exceptional circumstances doctrine does not apply.
Ineffective Assistance
¶26 Hararah also asserts that Counsel provided ineffective assistance by failing to object to the district court’s comments discussed above and by informing the jury in opening statements that it would not hear that Hararah had punched the victim.
¶27 “To prevail on a claim of ineffective assistance of counsel, [a defendant] must demonstrate that (1) [the defendant’s] counsel’s performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense.” State v. Streeper, 2022 UT App 147, ¶ 34, 523 P.3d 710 (cleaned up), cert. denied, 527 P.3d 1106 (Utah 2023); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of this test “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.
¶28 The second prong “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [a defendant’s] claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182.
¶29 We can easily dismiss Hararah’s first assertion of ineffective assistance. As discussed above, Hararah did not provide any evidence that he intended to accept a plea deal and that he based his waiver of the right to a preliminary hearing on such a plan.[7] Counsel was aware of Hararah’s feelings toward the choice between pleading or going to trial and stated repeatedly that Hararah was not interested in pleading guilty or accepting a plea bargain. Accordingly, Hararah has not persuaded us that any comments from the district court related to plea negotiations would have affected his plans at all, so Counsel acted reasonably in choosing not to object to such comments. In other words, the district court’s comments bore no impact on Hararah’s actions, so there was no tactical reason for Counsel to act as Hararah retroactively desires. “In evaluating trial counsel’s performance, we give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Liti, 2015 UT App 186, ¶ 18, 355 P.3d 1078 (cleaned up). Here Counsel acted in line with Hararah’s clear desire to proceed toward trial.
¶30 Additionally, for the same reasons described above, we are convinced that Hararah was not prejudiced by this alleged deficiency in performance. Hararah asserts that “[t]here is a reasonable likelihood that if [he] had been allowed to exercise his right to a preliminary hearing,” his case would have ended differently. But Hararah was able to exercise his right to a preliminary hearing. We have already explained why the district court’s alleged carrot—permitting Hararah the possibility of accepting a plea deal—was no carrot at all based on his express refusal of the State’s “best offer” and his desire to proceed to trial. Hararah’s claim might have some foundation if he had proceeded with a preliminary hearing and the court had, in fact, restricted his ability to negotiate a plea deal or even if he had accepted a plea bargain after waiving the preliminary hearing. But given that he clearly and consistently conveyed his desire to go to trial, that he was offered the “best” plea deal and refused it, and that his conviction by a jury at trial was in no way influenced by the district court’s earlier comments on waiving the preliminary hearing, we are not persuaded that the outcome would have been any different if Counsel had objected. See Strickland, 466 U.S. at 695. Therefore, Hararah cannot show ineffective assistance on this point.
¶31 Hararah’s second allegation of ineffective assistance is also unavailing. Hararah asserts that Counsel performed deficiently by saying in opening statements that the jury would “not hear any testimony about [Hararah] punching [the alleged victim],” when the victim went on to testify that Hararah had, in fact, hit her through a pillow. Hararah argues that Counsel should not have made such a promise without first “lock[ing] in” the victim’s testimony during a preliminary hearing. But, as discussed above, Hararah waived the preliminary hearing of his own free will. And it is clear that neither side was aware the victim would testify that Hararah hit her, because the deputy testified that he did not know of any assault other than Hararah throwing the plant. Accordingly, we do not fault Counsel for making a statement in line with all the known facts, and we conclude that Counsel’s actions are not nearly “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
¶32 Furthermore, Hararah was not prejudiced by this allegedly deficient performance. Counsel was able to paint the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony. And Counsel elicited testimony from the State’s own witness that there were no allegations of punching prior to trial. Accordingly, Hararah was in a strong position to counter the State’s case, and the jury still found him guilty of assault. From this, we see no support for “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.
CONCLUSION
¶33 Hararah’s claim that the district court coerced him into waiving his preliminary hearing is not supported by the record, so the exceptional circumstances doctrine does not apply and the court also did not plainly err. Additionally, Hararah’s assertion of ineffective assistance of counsel fails. Therefore, we affirm Hararah’s conviction.
Before terminating a parent’s rights, the court must find that termination is “strictly necessary to promote the child’s best interest.” This analysis must be undertaken from the child’s point of view. Utah lawprovides that termination is strictly necessary only when, after exploring possible placements for the child, the juvenile court concludes that no other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. If the child can be equally protected and benefited by an option other than termination (such as permanent custody and guardianship awarded to someone other than the parent or parents), termination is thus not strictly necessary. The strictly necessary analysis is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest. If a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference by an appellate court. Long-term guardianship arrangements are typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship in which they are both willing to work together to preserve the parent-child relationship and where the child has a healthy relationship with both the guardian and the parent. Thus, when a parent and potential guardian have little to no relationship, the particular circumstances of the case may indicate that permanent custody and guardianship will not meet the children’s needs as well as termination of parental rights. This post is a summary of the law as stated in the recent Utah Court of Appeals opinion in the case of In re K.R. – 2023 UT App 75 (filed July 13, 2023).