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Tag: hearsay

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

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

But they never record their interviews with the children.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Lamb v. Lamb, 2024 UT App 16 – divorce, custody, business, home equity

2024 UT App 16

THE UTAH COURT OF APPEALS

JOSEPH EARL LAMB,

Appellee,

v.

SONYA ELIZABETH LAMB,

Appellant.

Opinion

No. 20210787-CA

Filed February 8, 2024

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 174904728

Mary Deiss Brown, Attorney for Appellant

Gregory G. Skordas, Gabriela Mena, and Allison R.

Librett, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 Joseph Earl and Sonya Elizabeth Lamb’s divorce was decided at a bench trial.[1] As relevant here, Joseph was awarded custody of their children, ownership of a family business, and half the equity of the marital home. Sonya now challenges the court’s custody determination and the award of the business. She also challenges the manner in which the court determined the equity in the marital home. We affirm the district court’s rulings in all aspects.

BACKGROUND[2]

¶2        Joseph and Sonya married in 2007 and separated in July 2017. We address separately each of the district court’s determinations with which Sonya takes issue.

The Custody of the Children

¶3        Joseph and Sonya have three children, all of whom were minors when they divorced in August 2021. In November 2017, at a hearing for temporary orders, Sonya’s counsel told the court that Sonya had been the children’s primary caregiver “until recently.” Sonya also admitted that she was arrested in July 2017 and was facing charges for possession and use of drugs, but she asserted that she had “taken responsibility,” had “stopped using drugs,” was “sober and more than capable of caring for the children and continuing on as their primary caregiver,” and had “been attending Narcotics Anonymous and Al-Anon meetings.” Sonya asserted that Joseph had a “serious drug addiction problem.” Joseph claimed that Sonya had vacated the marital home shortly before her arrest, and he revealed that he obtained a protective order against her. The court acknowledged the allegations both sides made against the other but noted that Joseph currently had the children in his care and was living in the marital home. The court then determined that Joseph should maintain “custody of the children on a temporary basis.”

¶4        Apparently, the children remained in the temporary custody of Joseph until the parties’ divorce trial, where the court received the testimony of a “reunification therapist” (Family Therapist), who had been hired by the parties after the custody evaluator had been “unable to perform an evaluation due to the children spending less than minimum time” with Sonya.

¶5        Based on the testimony of Family Therapist, which we recount when relevant in our analysis below, the court found that “unification” between Sonya and the two older children was “lacking” because of acrimonious relationships. The court noted that Family Therapist had testified that progress in reunification therapy would “influence what possible custody” Sonya might have in the future relative to the older children. The court determined that it was “in the best interest of the children that reunification therapy” continue to allow Sonya the opportunity “to reunify her relationship with the children.”

¶6        Accordingly, the court found that it was in the children’s best interest that Joseph be “awarded sole physical custody and final decision making authority,” with both parties being awarded joint legal custody. With regard to the youngest child, the court awarded supervised parent-time to Sonya one night a week. The court awarded Sonya no parent-time with the older two children. The court noted that supervised parent-time for Sonya would “be flexible” and might “increase after the current reunification issues” and Sonya’s “medical issues” were addressed. The court also stated that Sonya’s “non-use of cannabis” needed to be verified because marijuana use was “a contributing factor” that brought on her mental health episodes.

The Business

¶7        During their union, the parties were financially supported, at least in part, by a business that distributed supplies to gas stations. During the divorce proceedings, Joseph maintained that he was in the process of purchasing the business from his father but that he did not have the money to pay for it. Joseph explained that he drew a salary for his work with the business. In contrast, Sonya maintained that she and Joseph agreed to buy the business in 2010 and that they completed paying off the business in 2016. Sonya claimed that she and Joseph signed a document “to take over the business” but that she did “not have the document.” Sonya did produce a different document that explicitly stated the business was being sold only to Joseph.

¶8        The district court awarded the business to Joseph, along with all its debts and obligations. In addition, the court, apparently recognizing that the business was possibly still owned by Joseph’s father, ordered that any money Joseph borrowed against the marital home to purchase the business would “not be used to reduce the total equity in the home” so as to reduce Sonya’s share of the home’s value. In making this award to Joseph, the court was clear that it was basing its decision “on the testimony” provided by Joseph.

The Marital Home

¶9        Based on a Zillow estimate[3] provided by Sonya, the court determined the value of the marital home to be $998,659, but the equity in the home was reduced by mortgages and liens on the property. Joseph testified that three mortgages, totaling $402,000, were on the property.[4] And the home was additionally encumbered by eleven liens. Two of these liens, totaling $2,414, were attributed to Sonya and Joseph. The remaining nine, totaling $256,521, were tax liens and civil judgments incurred by the previous owner of the home.[5]

¶10      The court received evidence that when Joseph and Sonya purchased the home in November 2009, it was subject to some existing debt. Joseph testified as follows:

Counsel: “Was there anything particular about that purchase [of the home]?”

Joseph: “We didn’t have the credit or the means to get into a home at the time, so my brother is a real estate agent and he’s good friends with [the previous owner] and said, ‘Hey, this house is available. If you like it, I can probably get you into it.’ And so we took him up on that and (inaudible) that we had to take on (inaudible).”

Counsel: “So there were other debts on that house when you purchased it?”

Joseph: “Yes        I didn’t know about all of them at the time, but yes.”

Counsel: “What are those debts?”

Joseph: “There’s a lot of tax liens from [the previous owner] throughout the years. There’s a couple of (inaudible) from Sonya and I, medical bills that weren’t paid. . . .”

Counsel: “And have you paid off the tax liens? The liens on the house?”

Joseph: “No.”

Thus, in a somewhat unusual arrangement, the parties appear to have purchased the home subject to certain liabilities, even if they did not know the precise extent of those liabilities. Presumably, these liabilities would have been offset by a reduction in the purchase price, making the home more affordable.

¶11      Adding the mortgages and liens together for an amount of $660,935, the court determined that equity in the home was $337,724. The court ordered Joseph to pay Sonya $168,862 as her share of that equity.

¶12      Sonya appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Sonya identifies multiple ways in which she believes the district court erred. But “[f]or the sake of brevity,” we “consolidate these grounds” and “set out in the opinion only so much . . . as we deem necessary to a decision of the questions involved herein.” Patterick v. Carbon Water Conservancy Dist., 145 P.2d 503, 505 (Utah 1944), overruled on other grounds by Timpanogos Plan. & Water Mgmt. Agency v. Central Utah Water Conservancy Dist., 690 P.2d 562 (Utah 1984).

¶14      Sonya first contends that the district court abused its discretion in making custody and parent-time decisions because it lacked sufficient information to make those decisions. “We review custody determinations deferentially, and so long as the district court’s discretion is exercised within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Kingston v. Kingston, 2022 UT 43, ¶ 20, 532 P.3d 958 (cleaned up).

¶15      Sonya next contends that the district court’s findings were “entirely inadequate to explain” its reasoning for awarding ownership of the business to Joseph. “We review the legal sufficiency of factual findings—that is, whether the trial court’s factual findings are sufficient to support its legal conclusions— under a correction-of-error standard, according no particular deference to the trial court.” Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262 (cleaned up).

¶16      Lastly, Sonya argues that the district court’s “procedures and decisions regarding the division of equity in the marital home were illogical and manifestly unjust.” “Determining and assigning values to marital property is a matter for the trial court, and an appellate court will not disturb those determinations absent a showing of clear abuse of discretion.” Mintz v. Mintz, 2023 UT App 17, ¶ 12, 525 P.3d 534 (cleaned up), cert. denied, 531 P.3d 730 (Utah 2023).

ANALYSIS

  1. A Note on Briefing

¶17      Sonya’s briefing is plagued by significant deficiencies and does not comply with the Utah Rules of Appellate Procedure for appropriate briefing. First, excluding the cases cited for the standards of review, Sonya cites only a single case in her opening brief, and she does so in a perfunctory fashion—making only a shallow attempt to explain its relevance to the issues. Sonya continues this trend in her reply brief, where she cites no cases at all. In this regard, she falls far short of appellate expectations. “A party may not simply point toward a pile of sand and expect the court to build a castle. In both district and appellate courts, the development of an argument is a party’s responsibility, not a judicial duty.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248; see also Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); id. R. 24(b)(3).

¶18      Second, in her statement of the case, Sonya fails to include a single citation to the record. This is in contravention of our clearly stated rule. See Utah R. App. P. 24(a)(6) (“The statement of the case must include, with citations to the record: (A) the facts of the case, to the extent necessary to understand the issues presented for review; (B) the procedural history of the case, to the extent necessary to understand the issues presented for review; and (C) the disposition in the court or agency whose judgment or order is under review.” (emphasis added)). We note that Sonya somewhat more adequately cites the record in the argument section of her brief, but that is not what the Utah Rules of Appellate Procedure require, and by ignoring the rules to suit her briefing preferences, she does little to bolster judicial efficiency.[6]

¶19      We point out these deficiencies not to ridicule, disparage, or shame counsel, but to provide warning that future briefing of this nature will likely be deemed inadequate and that any arguments on the merits may not be substantively considered by this court. This court receives hundreds of briefs each year. They vary in quality and in their adherence to the rules. We recognize that members of the bar have a lot on their plates and occasionally miss a typo or overlook a citation. But wholesale disregard of briefing rules is quite beyond the pale and can have unwelcome consequences for attorneys (and their clients) who choose this risky path. See Ostler v. Department of Public Safety, 2022 UT App 6, ¶ 27, 505 P.3d 1119 (“We . . . retain discretion to not address an argument that is inadequately briefed.” (cleaned up)); accord State v. Schwenke, 2007 UT App 354U, para. 2; State v. Garner, 2002 UT App 234, ¶¶ 8–13, 52 P.3d 467. And we hasten to point out that the risk of ignoring briefing requirements should come as no surprise to any attorney in Utah owing to our multiple references to the issue over the years. See Trees v. Lewis, 738 P.2d 612, 612–13 (Utah 1987) (stating that the merits of a dispute need not be reached if an appellant “has not supported the facts set forth in [a] brief with citations to the record” as required by rule 24(a)(6) of the Utah Rules of Appellate Procedure); State v. Price, 827 P.2d 247, 249 (Utah Ct. App. 1992) (“We have routinely refused to consider arguments which do not include a statement of the facts properly supported by citations to the record.”); Koulis v. Standard Oil Co. of Cal., 746 P.2d 1182, 1184 (Utah Ct. App. 1987) (“If a party fails to make a concise statement of the facts and citation of the pages in the record where those facts are supported, the court will assume the correctness of the judgment below.”). That we have exercised our discretion to address the merits of the issues on appeal here should not be taken as an imprimatur sanctioning inadequate briefing but as a conduit to raise awareness of the risk of ignoring the rules.

¶20 We take this occasion to recall the advice offered by our supreme court several decades ago:

If the questions involved in a case are of sufficient importance to justify asking this court to decide them, they are worthy of the careful consideration of counsel presenting them. It is the duty of attorneys practicing in this court to present to the court the authorities supporting their views and to assist the court in reaching a correct conclusion.

State v. Thomas, 1999 UT 2, ¶ 13, 974 P.2d 269 (cleaned up). With that, we remind counsel of their responsibility to assist the judiciary in advancing jurisprudence through diligent advocacy, adherence to our rules, and competent representation.

  1. Custody and Parent-Time
  2. Disclosure

¶21      Sonya argues that the district court erred in admitting Family Therapist’s testimony when Joseph had not timely disclosed him as an expert witness pursuant to rule 26 of the Utah Rules of Civil Procedure, which requires disclosure “within 14 days after the close of fact discovery.” Utah R. Civ. P. 26(4)(C)(i). Sonya’s briefing on this point leaves much to be desired. She entirely ignores what happened at trial, instead substituting her own retrospective take on what she believes should have happened without attempting to explain why her timeliness argument should now be considered. Providing some persuasive caselaw—which may or may not exist—would have gone far to support her argument. But like the rest of her briefing, this part is inadequate.

¶22      A review of the record shows that Sonya did not object to Family Therapist’s testimony on the grounds of untimely disclosure. Instead, Sonya argued that Family Therapist had “far exceeded any kind of mandate,” that he had not signed confidentiality waivers, and that allowing his testimony created patient privacy and ethical violations. In her objection at trial, rule 26 was mentioned only in passing and not in a way that would suggest she was objecting on timeliness grounds. It certainly would not have been clear to opposing counsel that a rule 26 timeliness issue was being raised such that he would have known to argue a harmlessness or good-cause defense for the failure to disclose, which would have been an easy argument to make given that both Joseph and Sonya had jointly retained Family Therapist and Sonya knew about Family Therapist several years before trial. And it would not have been clear to the district court that it was being asked to rule on a timeliness-based objection. For these reasons, Sonya did not preserve any such objection for appellate review. See State v. Centeno, 2023 UT 22, ¶ 57, 537 P.3d 232 (“It is well established that we will not address the merits of an unpreserved issue absent a showing that an exception to the preservation rule applies.”).

  1. Hearsay

¶23 Sonya additionally argues that Family Therapist’s testimony, insofar as he testified as a fact witness, “was inadmissible hearsay and based entirely on his conversations with the parties and their children as their reunification therapist.” Sonya’s hearsay argument is difficult to follow and poorly briefed. Instead of analysis in support of her hearsay argument, she provides scant and unsupported assertions.

¶24      Sonya objected below to Family Therapist’s testimony on the grounds that it was hearsay. But the court ruled that it was not hearsay, concluding that Family Therapist’s testimony was not offered “for the truth of the matter asserted.” Rather, the court ruled that the “focus of [the] questioning” was, first, to allow the court “to find out how [the children were] doing, if they’re capable of going forward” and, second, to identify the present “obstacles” to “structuring visitation with [Sonya].” On appeal, Sonya makes no attempt to engage with the court’s reasoning, instead limiting her analysis to a blanket assertion that “it [was] evident” Family Therapist was “allowed to testify as an expert, offering hearsay, opinions and recommendations in [a] manner that simply is not permitted by the Rules of Civil Procedure.” Such superficial and undeveloped argument is simply not persuasive, most especially because it does not address the alleged error in the court’s reasoning. It is well settled that appellants who fail to “address the district court’s reasoning” also fail to carry their “burden of persuasion on appeal.” See Federated Cap. Corp. v. Shaw, 2018 UT App 120, ¶ 20, 428 P.3d 12; see also Spencer v. Spencer, 2023 UT App 1, ¶ 27, 524 P.3d 165; Bad Ass Coffee Co. of Haw. v. Royal Aloha Int’l LLC, 2020 UT App 122, ¶ 48, 473 P.3d 624.

  1. Custody Factors

¶25 Sonya next argues that the court did not address the custody factors outlined in section 30-3-10 of the Utah Code, making its custody findings insufficient. More specifically, Sonya argues that the court’s factual findings were deficient due to the court’s reliance on the testimony of Family Therapist in making those findings.

¶26 Section 30-3-10 states that in “determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider . . . other factors the court finds relevant,” including factors for each parent articulated in the code. Utah Code § 30-3-10(2) (emphasis added). These factors a court may consider are “not on equal footing.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Instead, “it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. (emphasis added). “And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806. Thus, to “ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).

¶27      Here, the factors about which the court received significant evidence concerned Sonya’s ability to function as a parent, which the court received as testimony from Family Therapist. As we have explained above, Sonya’s challenges to the admissibility of Family Therapist’s testimony fail, and we accordingly conclude that the district court acted well within its discretion in relying on his testimony.

¶28      Regarding Sonya’s ability to parent the two older children, Family Therapist testified that they were “very angry” with Sonya and “announced that they would never see or talk to her again.” Their anger was due to their religious sensibilities and Sonya’s announcement that she was pregnant by a man other than their father during the pendency of the divorce.

¶29      With regard to Sonya’s parenting, Family Therapist stated that the youngest child was very frightened after “his last visit with [Sonya] when she was struggling psychiatrically.” Moreover, Family Therapist also testified the youngest child was beginning to see himself as Sonya’s “partner,” resulting in the child “becoming parentified.”[7]

¶30 Family Therapist further indicated that while he was unaware of Sonya’s “current condition or functioning,” Sonya had been “hospitalized and diagnosed with some issues.” He asserted that “safety” needed to be addressed, meaning that Sonya required a psychiatric evaluation to demonstrate that her “situation” was “under control.” He also indicated that Sonya needed to work on “being forthright with medications.” Sonya, by her own admission, had “suffered an isolated manic episode” related to bipolar disorder and “called the police for assistance” because she was suffering from “visual and auditory hallucinations.”

¶31    Sonya’s briefing on this point misses the mark because it entirely relies on the assumption that Family Therapist’s testimony was inadmissible, an assumption we conclude is without foundation. See supra ¶¶ 21–24. She does not explain why, in light of Family Therapist’s admissible testimony, the court’s consideration of the statutory custody factors was insufficient. Sonya’s briefing makes no attempt to explain why the court is not allowed to rely on the evidence it receives when making custody decisions.

¶32 Moreover, Sonya does not identify any “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, as to the other factors in section 30-3-10 that the court received but left unaddressed. Instead, her briefing advances an argument that is entirely conclusory and unsupported by record citation or legal authority:

Although § 30-3-10 gives broad discretion to the court as to the relevance and appropriate weight to give each factor, the district court in this case simply did not have any information that would allow it to make findings as to most of the statutory factors. For instance, the district court did not know who the primary caretaker of the children during the marriage was. The district court did not know anything about the marriage. The district court would not permit any testimony relevant to Joseph’s moral character or his history of drug abuse and sexual proclivities. The Court would not allow any testimony as to Joseph’s inability and unwillingness to co-parent with Sonya. At the end of the day, the Court simply sidestepped its responsibility as an independent factfinder and deferred to [Family Therapist].

This might be a good argument if Sonya had supported it with citations to the record and to legal authority. As this argument stands before us, we are unable to verify what it asserts. But we suspect that Sonya might be indulging in hyperbole here. Indeed, Sonya’s assertion that “the district court did not know anything about the marriage” is patently false. Our review of the record indicates that the court, in fact, knew quite a bit about the marriage, such as its financial situation, issues related to the children, and the problems that led to its demise, to name just a few topics within its familiarity. And with regard to Joseph’s alleged use of illegal drugs, we found only one instance (subsequently echoed by Sonya’s attorney) in the record where Sonya asserted before the district court that Joseph had a “cocaine habit.” But the district court was free to “disregard such testimony if it [found] the evidence self-serving and not credible,” since the factfinder “is in the best position to judge the credibility of witnesses.” See Clark v. Clark, 2023 UT App 111, ¶ 37, 537 P.3d 633 (cleaned up). An isolated allegation made in passing certainly does not amount to “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, especially given the district court’s role as the factfinder to judge the credibility of witnesses, see Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751. And as to the other statutory custody factors that Sonya asserts the court left unaddressed, she has not pointed us to any significant evidence that the court received with respect to those factors.

¶33      Thus, unlike the situation in Twitchell, where we concluded “that the district court exceeded its discretion by failing to include in its findings any discussion of the evidence relating to the abuse allegations against [the mother], her alleged neglect of [the child,] and her moral character, as well as the effect that evidence had on its best-interest analysis,” see 2022 UT 49, ¶¶ 22–23, 25, here there simply wasn’t significant evidence presented regarding section 30-3-10’s other custody factors. This lack of evidence—insofar as there was a lack—was not the court’s fault; it was Sonya’s fault for not presenting it. After all, a court cannot be faulted for failing to consider evidence that was not presented to it. In contrast, given the substantial evidence the court did receive about the serious mental health issues Sonya faced, we conclude that the district court did not abuse its discretion in its consideration of the statutory factors when determining that awarding physical custody to Joseph was in the best interest of the children.

¶34 In sum, Sonya has failed to show that the district court abused its discretion in accepting and relying on the testimony of Family Therapist in making custody determinations or that the district court did not properly address the statutory factors in determining custody of the children.

III. Ownership of the Business

¶35      Both parties agree that the district court concluded that the business was not a joint marital asset. The district court awarded the business to Joseph “[b]ased on [Joseph’s] testimony.” Along with awarding the business to Joseph, the court stated that Joseph was “responsible for payment of the purchase price of the business.”

¶36      Sonya’s briefing on this point is challenging because it consists largely of recounting financial matters pertaining to the marriage but unrelated to the ownership of the business. She then asserts, with no discernible effort to explain why, that the “findings/conclusions were entirely inadequate to explain the Court’s reasoning for giving ownership” of the business to Joseph. Her argument is difficult to follow, but its essence, insofar as we can tell, appears to be that the court erred in believing Joseph’s testimony over hers.

¶37 We disagree with Sonya that the court erred in crediting Joseph’s testimony regarding the ownership of the business over Sonya’s. Again, the court stated in its factual findings that its award of the business to Joseph was “[b]ased on [his] testimony.” In making this credibility determination, the court acted well within its discretion. “[W]here there exists evidence sufficient to support a court’s rulings regarding a divorcing couple’s finances, that ruling will be upheld on appeal, even if evidence was presented that might have cut the other way.” Clarke v. Clarke, 2023 UT App 160, ¶ 27. This is because “the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony. Even where testimony is uncontroverted, a trial court is free to 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); see also Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“[I]t is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).

¶38      Here, the district court was in the best position to judge the credibility of the parties. It clearly found Joseph’s testimony regarding the ownership of the business to be more credible. Sonya has provided no reasoned argument—apart from her assertion that she disagrees with it—as to why the district court’s conclusion that the business was not marital property was erroneous. Accordingly, Sonya has failed to meet her “burden on appeal to show that no reasonable person would take the view adopted” by the district court, and we therefore conclude that the district court did not err in awarding the business, along with its liabilities, to Joseph. See Ouk, 2015 UT App 104, ¶ 14.[8]

  1. Equity in the Marital Home

¶39      Sonya’s final claim is that the district court abused its discretion in dividing equity in the marital home. “In divorce actions, a district court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (cleaned up). Thus, in such proceedings,

we will reverse only if (1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the factual findings upon which the award was based are clearly erroneous; or (3) the party challenging the award shows that such a serious inequity has resulted as to manifest a clear abuse of discretion. Because we can properly find abuse only if no reasonable person would take the view adopted by the trial court, appellants have a heavy burden to show that an alleged error falls into any of these three categories.

Id. (cleaned up).

¶40      Sonya’s claim focuses on three aspects of the court’s valuation of the home: (1) the mortgage amount, (2) the use of the Zillow estimate, and (3) the amount of the liens on the home. We address each in turn.

¶41      The Mortgage Amount. Sonya complains that the district court, based on Joseph’s testimony, should have used $298,000 as the amount owing on the mortgages rather than $402,000, an adjustment that would have benefitted her by increasing the equity she would have received. “Generally, the marital estate is valued at the time of the divorce decree or trial. However, in the exercise of its equitable powers, a trial court has broad discretion to use a different date, such as the date of separation, when circumstances warrant. If the trial court uses a date other than the date of the divorce decree, it must support its decision with sufficiently detailed findings of fact explaining its deviation from the general rule.” Rothwell v. Rothwell, 2023 UT App 50, ¶ 39, 531 P.3d 225 (cleaned up), cert. denied, 537 P.3d 1011 (Utah 2023). In response to Sonya’s motion for amended findings, the court explained, “[Joseph’s] statement of the mortgage balance of $298,000 was referring to the total amount of all three (3) mortgages. The Court also took that into evidence taking into account that it was [Joseph’s] best estimate according to what his monthly mortgage payments are and how much was deducted from the principal each month.” We understand this to mean that the court took into consideration that it was through Joseph’s extraordinary post-separation payment efforts that the mortgage amount had been reduced. Moreover, Sonya concedes in her reply brief that it was within the district court’s discretion to use the earlier mortgage total. Accordingly, we see no abuse of discretion in the court’s use of the date of the separation to determine the amount of the mortgages.

¶42      The Zillow Estimate. Sonya next complains that the home should have been valued at about $260,000 more than was indicated by the Zillow estimate the court used. The glaring problem with this aspect of Sonya’s complaint is that it was her counsel’s idea to use the Zillow estimate. In open court, her counsel looked up the estimate and announced it to the court. And the court proceeded to base its calculations on the very data Sonya’s counsel supplied. We simply will not countenance Sonya’s assertion that the district court erred in proceeding to use the estimate that Sonya herself, through counsel, provided. Sonya invited any error in this regard. See Somer v. Somer, 2020 UT App 93, ¶ 14, 467 P.3d 924 (“Where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court does not consider the party’s objection to that action on appeal.” (cleaned up)). In her briefing on appeal, Sonya points to nothing in the record that would have allowed the court to value the home using anything other than the Zillow estimate. Sonya does not challenge that the court acted on the only information it had and that Sonya herself provided. Accordingly, “given the absence of any expert financial testimony, . . . the paucity of assistance the parties offered the court,” and the representations made by Sonya’s counsel regarding the marital home’s value, we conclude that “the court in this instance made findings within its discretion and supported by the evidence it was given.” Clarke v. Clarke, 2023 UT App 160, ¶ 55.

¶43      The Liens. Sonya argues that the district court abused its discretion in counting third-party liens against the equity in the home. Given the evidence the court received, we see no error on the part of the court in this regard. Indeed, there was evidence to support the court’s determination that the third-party liens should be included in the calculation of the home’s equity. Joseph testified that when he and Sonya purchased the home, they did so knowing that they were assuming responsibility for some of the previous owner’s debts. This is an admittedly odd arrangement, but Joseph testified that they were willing to accept it because they were not in a financial position to purchase the home otherwise. Sonya offered no testimony or other evidence to contradict Joseph’s assertion, and she still points to nothing presented at trial that contradicted this evidence. Accordingly, we conclude that the factual findings that included the liability associated with the third-party liens were not clearly erroneous and that the court did not abuse its discretion in calculating the home’s equity.

CONCLUSION

¶44      Sonya has not demonstrated that the district court abused its discretion in its custody determination, in awarding the business to Joseph, or in its division of equity in the marital home. Affirmed.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] Because the parties share a surname, we refer to them by their given names.

[2] As addressed below, neither party’s briefs included sufficient citations to the record. This shortcoming has necessitated us combing the record to establish some semblance of a background, something we are not obligated to do. See State v. Wright, 2019 UT App 66, ¶ 47 n.6, 442 P.3d 1185 (explaining the parties’ duty to cite the record in appellate briefs), cert. denied, 456 P.3d 391 (Utah 2019). Accordingly, our recitation of the facts is necessarily minimal as we limit it to what is essential to resolve the issues on appeal.

[3] Neither party produced an appraisal of the home or an appraisal witness at trial, leading the court to ask the parties, “Does anybody have any valuation [of the home] at all?” Sonya’s counsel answered, “Well, we could do it [with] Zillow.” At this point, while in court, Sonya’s counsel looked up the value and reported, “According to Zillow as of today, the estimated value is $998,659.” No objection was lodged at trial to the court receiving this information. “Zillow is a commercial website that provides, among other things, an estimated market value for many residential properties.” Chaudry v. Chaudry, No. 1794, 2021 WL 2910977, at *9 n.7 (Md. Ct. Spec. App. July 12, 2021).

[4] This number reflected the amount owing at the time of separation. At the bench trial, Joseph testified that the amount was currently about $298,000.

[5] Joseph’s counsel provided a LexisNexis report as evidence of the liens on the home. This report was admitted as evidence with no objection.

[6] Nor did Joseph’s counsel provide a single citation to the record in his brief. This shortcoming is most unhelpful. While an appellee is not required to file a brief, see, e.g.AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76, we observe that if a brief is filed, it would behoove counsel to provide record citations. After all, and at the risk of stating the obvious, record citations are required because in their absence it’s difficult, and at times impossible, to figure out what the parties are referencing.

[7] “Parentification is often referred to as growing up too fast. Typically, it occurs when a child takes on parental responsibility for their siblings or even their parents, taking care of a sibling or parent physically, mentally, or emotionally. This can damage a child’s mental well-being and lead to long-term mental health conditions such as depression and anxiety.” Amber Felton, What Is Parentification, Web MD, https://www.webmd.com/parenting /what-is-parentification [https://perma.cc/N6TT-Y7QN].

[8] Sonya also argues that the district court violated her constitutional due process rights by its “ongoing interference” with her counsel’s presentation of her case. Quite frankly, apart from a litany of complaints about the court requiring counsel to keep her questioning relevant, the contours of her argument on appeal are difficult to discern, and she fails to cite a single case in support of the argument. Accordingly, we decline to consider her due process argument because it is inadequately briefed. See Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); see also Orlando Millenia, LC v. United Title Services of Utah, Inc., 2015 UT 55, ¶ 30 n.3, 355 P.3d 965 (“The briefing on this claim . . . is inadequate. [The appellant’s] briefing on this issue fails to cite any authority and makes no attempt to connect the law to the facts of this case.”).

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2023 UT App 65 – State v. Meyer – Parent Charged With Child Abuse

2023 UT App 65 – State v. Meyer

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,

v.

ELIZABETH LYDIA MEYER,

Appellant.

Opinion

No. 20210718-CA

Filed June 15, 2023

First District Court, Brigham City Department

The Honorable Spencer Walsh

No. 181100556

Wendy M. Brown, Debra M. Nelson, and Benjamin Miller, Attorneys for Appellant

Blair T. Wardle, Attorney for Appellee

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

MORTENSEN, Judge:

¶1        Elizabeth Lydia Meyer’s[1] ex-husband (Father) discovered bruising on their daughter (Child) after picking her up from Meyer’s home. The State charged Meyer with child abuse and, at a bench trial, used a process-of-elimination approach to argue that Meyer was the only possible cause of the bruising. The district court convicted Meyer, and she now appeals. Meyer asserts that the court erred in admitting the preliminary hearing testimony of her now-husband. We agree that this action was erroneous and prejudiced Meyer, so we vacate her conviction.

BACKGROUND

¶2          One Wednesday in July 2018, Father picked up Child, then two years old, from Meyer’s home for a regular midweek visit. Meyer and Father had been through a “fairly contentious” divorce, and their relationship was sometimes “volatile,” so Father had made it a habit to record via cellphone his pickups of Child. His video recording from this day shows marks on the upper portions of both of Child’s arms. But Father did not notice the marks until later, when he was at a restaurant with Child. Father exchanged texts with Meyer about the marks:

Father: I noticed that [Child] has what looks like bruises on her arm. Is she okay?

Meyer: Yes, she’s fine.

Father: How did she get those marks?

Meyer: How do children get the majority of their bruises? What direction are you trying to go with this?

Father: I’m just concerned because the bruising pattern is not consistent with normal childhood injuries.

Meyer: Since when did you become an expert in that matter? I understand that you want to pretend to care about my daughter, but I do not wish to have you go on a third witch hunt and falsely accuse someone like you already have done twice, even though we both know you’re dying to. You do not make any of her medical appointments. And the last I knew you have not completed any courses in the direction. So please leave your harassing comments to yourself.

¶3          After dinner, Father drove to the police station and asked for an officer to examine Child’s arms. An officer (Officer) and a caseworker (Caseworker) from the Division of Child and Family Services (DCFS) met with Father and photographed Child’s arms approximately two hours after Father had picked up Child.

¶4          Officer and Caseworker then visited Meyer’s home. Outside, they met Michael Glenn, Meyer’s then-boyfriend whom she married before the case went to trial. Glenn was initially “defiant” and did not want them to enter the house, but when they showed him photos of Child’s bruises, he was concerned and let them in.

¶5          Officer and Caseworker entered the house and spoke with Meyer, who was very upset. Officer asked Meyer what could have caused bruising on Child’s arms, and Meyer gave multiple possible explanations, including Child falling out of the car when she arrived home from daycare, Child playing with hair ties that were like rubber bands (which she snapped on her arms), or Child playing roughly with her older brother and sometimes getting rug burns from the roughhousing. Caseworker asked Meyer how she had picked Child up when Child fell out of the car after returning from daycare, and Meyer responded along the lines that she picked Child up like any mother would and cleaned her face. Meyer also reported that she had caused a mark on Child’s upper arm when Child ran into the street and Meyer pulled her back. Caseworker showed Meyer photos of Child’s bruises, and Meyer was very surprised, saying, “They were not like that.”

¶6          Glenn gave Officer contact information for Child’s daycare provider (Daycare Provider). When Officer spoke to Daycare Provider on the phone, she confirmed that Child had been in her care that day. Daycare Provider also confirmed that she had asked Meyer about a mark on Child’s arm when Meyer picked Child up that day and that Meyer told her she had grabbed Child to prevent her from running into the street.

¶7          The next day, Father took Child for a physical exam, which was completed by a forensic nurse examiner (Nurse). In her report, Nurse identified “[p]ositive physical findings of injury to bilateral upper arms and left forearm” and described the upper arm injuries as “circumferential and linear with equal spacing between” them and stated that the bruises were “highly indicative for a squeezing mechanism and physical abuse.” Child was not returned to Meyer’s care.

¶8          The case was transferred to a detective (Detective), who called Meyer two days after the alleged incident and recorded the phone call. During the call, Meyer implied that Father was the source of Child’s bruises because, according to her, Child had no bruises until she was in Father’s care and Meyer believed that “[h]e [was] trying to get [her] daughter away from [her].” Meyer was very upset during the call and indicated that she had been previously accused of child abuse, presumably by Father. Meyer also stated that she did not see any bruises or marks on Child— other than the mark from the incident she reported of grabbing Child to stop her from running into the road—before giving Child to Father. But she explained that Child would sometimes scratch herself, leaving marks, and hit and bite things. Meyer also spoke about Glenn’s whereabouts on the day of the incident, indicating that Glenn was asleep when Child came home and remained asleep until after Father had picked Child up.

¶9          Detective wrote in his police report that Child’s older brother, then four years old, “was asked where his sister got the marks on her arm and he said that it was from someone who had power and squeezed hard.” Detective spoke to Daycare Provider, though he did not inspect her home; perform a background check on her; or speak with the parents of other children she babysat or with the three children she had living with her, who were ages fourteen, ten, and eight and may have had access to Child. Detective later testified that he didn’t really consider Daycare Provider a suspect after speaking with her. He also ruled out Glenn as a suspect based on Meyer’s statement that Glenn had been asleep between the time Child came home from daycare and the time Father picked up Child. However, in his report he wrote that he told Meyer he didn’t think the incident causing the bruising had happened on that day. But at trial he testified that, based on his investigation, the timeline he established was that there were no visible bruises—other than the one caused by Meyer stopping Child from running into the street—until the time between Meyer picking Child up from daycare and Father picking her up from Meyer within the next forty-five minutes.

¶10 In August 2018, another officer (Sergeant) interviewed Meyer in person at Detective’s request. Meyer’s statements were consistent with those she had made previously. Specifically, Meyer again stated that Glenn was asleep when Child returned from daycare and did not wake up until after Child left with Father.

¶11        In December 2018, the State charged Meyer with one count of child abuse, a class A misdemeanor.

¶12        The district court held a preliminary hearing in May 2019. Among other witnesses, the State subpoenaed Glenn to testify at the hearing. When he was called to testify, he was hostile, and the court threatened to hold him in contempt and take him into custody. But Glenn ultimately did testify. While he first declared that it was “100 percent incorrect” that he told Officer and Caseworker that the marks had not been on Child in the morning, after reviewing Officer’s bodycam footage, he admitted that he did say that. He also testified that after waking up that morning, he went straight to the car and didn’t notice any marks on Child’s arms, but he said he was busy “concentrating on driving and getting to and from.” He described how he went with Meyer to drop Child off at daycare in the morning. He testified that he was asleep when Meyer brought Child home. And he declared that he did not cause Child’s bruising.

¶13 Sometime after the preliminary hearing, Meyer married Glenn, and Meyer’s defense counsel (Defense Counsel) informed the State via email that Glenn intended to invoke his spousal privilege related to testifying at trial. The State told Defense Counsel that Glenn was “still required to show up to court to produce evidence that he [was], in fact, married . . . and take the stand to actually invoke the privilege.” The prosecutor insisted, “This is important because then he will become an unavailable witness. As an unavailable witness, I will then be able to play his preliminary hearing audio in lieu of his testimony.” Defense Counsel indicated that she “had anticipated that [the State] would be able to get Glenn’s preliminary hearing testimony in at trial.”

¶14        When Defense Counsel later informed the State that Glenn would be on bed rest following surgery on the date of trial (which had been continued multiple times), they discussed the possibilities of Glenn testifying via video during trial or of filing stipulated facts related to his testimony. But Glenn filed a motion to quash the subpoena against him. The State then sent Defense Counsel a transcript and redacted audio file of Glenn’s preliminary hearing testimony that it intended to have admitted at trial, and Defense Counsel responded, “I would absolutely object to both the transcript and the audio coming in at trial. . . . Glenn’s testimony is hearsay[,] and to introduce it would also be a violation of my client’s confrontation rights.” Defense Counsel explained, “The Utah Supreme Court has ruled that because there is a different motive for examining witnesses at a preliminary hearing than that at a trial, said testimony is inadmissible.”

¶15        The State then filed a motion to admit Glenn’s preliminary hearing testimony. After receiving briefing and hearing oral argument, the court found that Glenn’s testimony fell under the exception to hearsay in rule 804(b)(1) of the Utah Rules of Evidence for former testimony of an unavailable witness. The court acknowledged caselaw indicating that defendants are restricted in developing testimony at preliminary hearings, see State v. Goins, 2017 UT 61, ¶¶ 32–33, 423 P.3d 1236, but it distinguished that caselaw from the facts of this case and admitted the testimony.

¶16 The court held a bench trial in May 2021. In its opening statement, the State indicated that “through the process of elimination,” it would “show beyond a reasonable doubt that it was . . . Meyer who committed child abuse.”

¶17 In addition to Glenn’s testimony, Daycare Provider testified at trial that Child had been in her care from roughly 9:00 a.m. to 4:45 p.m. that day. She stated that she did not see any marks or injuries on Child when Child was dropped off and she never saw marks like those photographed, but she did notice a different mark on Child’s arm later in the day, and this was the mark she asked Meyer about. She also testified that on the day of the bruising, she did not take Child to the park, she did not know of any equipment Child could have accessed that would have caused the injuries, Child did not get injured playing with toys, Child did not receive any injuries while in her care, and Child did not cry or appear to be in pain while in her care. She admitted, though, that she was aware that Child had been “kicked out of her previous day care . . . for playing too rough” and that Child “play[ed] really rough with toys and hit[] dolls a lot.”

¶18        Nurse testified that after examining Child, she “speculated . . . that because of the spacing, and the shape, and the location of the injuries, the colors that [she] saw, they were most definitely bruises,” the spacing of which “could fit a hand.” She said, “I’m not telling you it’s fitting a hand because—you know, I can’t say it was a hand unless I watched it happen, but I can tell you that those are bruises that are in a linear form that you don’t just get from falling down.” She further testified that based on the location, direction, and shape of the bruising, she did not believe that the incidents Meyer had described as possible accidental sources of injury had caused Child’s bruises. She also testified that the marks were “fresher bruises” that, based on coloration, could have been caused within hours of when Officer and Caseworker photographed Child’s injuries. But she acknowledged that “there’s no scientific way to date a bruise” and said that while it was “likely that it occurred” that day, “literally there is no way to determine when it happened.”

¶19 The State played a clip from the recorded interview between Meyer and Sergeant, in which Meyer stated that Child had a temper tantrum after arriving home from daycare and that Child tried to get out of being held and Meyer needed to grab her arm from the side.

¶20        In its closing argument, the State asked, “[W]ho caused the abuse?” and answered that “this is where we get into the process of elimination.” The State then explained its theory that the evidence proved that no one else could have caused the bruising, including Glenn, who “slept through the whole thing.”

¶21 The court ultimately found Meyer “guilty of a lesser-included offense of [c]lass B misdemeanor, child abuse, for having inflicted this injury on [Child] in a reckless manner.” The court provided its rationale, explaining in part that it “found highly credible the testimony” of Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” The court ruled out Glenn as a potential source of the injuries by saying, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court concluded, “And so there’s just no doubt in the [c]ourt’s mind that Mom, you lost your cool, you crossed a line, you squeezed your daughter’s arms, and it left that injury. It couldn’t have been anyone else.” The court sentenced Meyer to 180 days of jail but suspended 179 days. It also ordered a fine and probation.

¶22        Meyer subsequently filed a motion for a new trial through Defense Counsel. Defense Counsel then withdrew from representing Meyer. Meyer appeared pro se and asked the court to appoint counsel, but the State objected, and the court decided that Meyer did not qualify for appointed counsel based on her income. The court ultimately denied Meyer’s motion for a new trial. Meyer now appeals.

ISSUE AND STANDARD OF REVIEW

¶23        Meyer argues on appeal that Glenn’s “preliminary hearing testimony should not have been admitted at trial” under an exception to the bar on hearsay.2 “When reviewing rulings on hearsay, [appellate courts] review legal questions regarding admissibility for correctness, questions of fact for clear error, and the final ruling on admissibility for abuse of discretion.” State v. Leech, 2020 UT App 116, ¶ 31, 473 P.3d 218 (cleaned up), cert. denied, 481 P.3d 1039 (Utah 2021). But even “if we determine that the hearsay testimony should not have been admitted, we will reverse only if a reasonable likelihood exists that absent the error,

  1. Meyer also argues that the district court “committed plain error by failing to obtain a valid waiver of counsel before having [Meyer] represent herself on her motion for a new trial.” Because we rule in her favor on the first issue, we need not address this argument.

the result would have been more favorable to the defendant.” Id. (cleaned up).

ANALYSIS

  1. Similar Motive and Opportunity

¶24 Meyer argues that the district court erred in admitting Glenn’s preliminary hearing testimony. She asserts that Glenn’s testimony fails to qualify for the rule 804 exception to the evidentiary bar on hearsay. This exception applies when “the declarant is unavailable” and the declarant’s testimony was “given . . . at a trial, hearing, or lawful deposition” and is now “offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Utah R. Evid. 804(b)(1). Meyer argues that caselaw on this point “compels the conclusion that the admission of Glenn’s preliminary hearing testimony was erroneous” because that caselaw indicates that the motive to develop an adverse witness’s testimony at a preliminary hearing differs from the motive to do so at trial.

¶25        In State v. Goins, 2017 UT 61, 423 P.3d 1236, our supreme court discussed the effect of the 1994 amendment to Article I, Section 12 of the Utah Constitution, which limited “the function of preliminary examination to determining whether probable cause exists,” id. ¶ 31 (cleaned up) (discussing Utah Const. art. I, § 12). The court stated that, “by and large,” this provision “places most credibility determinations outside the reach of a magistrate at a preliminary hearing.” Id. ¶ 33. Therefore, “[o]ur constitution specifically limits the purpose of preliminary hearings in a manner that can undercut defense counsel’s opportunity to cross-examine witnesses at a preliminary hearing and thereby modify the interest counsel has in developing testimony on cross-examination.” Id. ¶ 41. But the court “eschewed a blanket rule” of inadmissibility for preliminary hearing testimony because it could “envision scenarios where, for whatever reason, defense counsel possesses the same motive and is provided the same opportunity to cross-examine as she would have at trial.” Id. ¶¶ 36–37. However, the court indicated that “such cases might prove rare.” Id. ¶ 36.

¶26 The Goins court then analyzed the motive for cross-examining a witness at the preliminary hearing by considering the facts of the case, which included the defendant allegedly brandishing a knife and accusing the later-unavailable witness of stealing his phone, after which the witness fled and the defendant assaulted the witness’s acquaintance. Id. ¶¶ 3–6. The court held that it was “apparent on the record . . . that [the defendant’s] counsel did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because the witness’s “testimony referenced concerns with [the defendant] and a prior incident between” the pair, so the defendant’s “counsel had a motive to develop this testimony and question [the witness’s] credibility” at trial “that went beyond a preliminary hearing’s constitutionally limited purpose.” Id. ¶ 46.

¶27 Subsequent cases have reached similar conclusions. In State v. Ellis, 2018 UT 2, 417 P.3d 86, a defendant faced a charge of aggravated robbery for allegedly robbing a cupcake shop at gunpoint, id. ¶¶ 1, 4. The store clerk testified at trial as to the events within the store, id. ¶ 19, but another witness—a witness who saw the perpetrator leave the scene, run across the road, and get into a car whose license plate she then reported—was not able to be in court on the day of the trial, id. ¶¶ 7–8, 16. The court admitted her preliminary hearing testimony, id. ¶ 19, but our supreme court held that this was improper, id. ¶ 40. It stated that in Goins, it had “conditioned the admissibility of preliminary hearing testimony on a showing that defense counsel really did possess the same motive and was permitted a full opportunity for cross-examination at the preliminary hearing.” Id. ¶ 39 (cleaned up). And it said that “Goins foreclose[d] the admissibility of the . . . preliminary hearing testimony” because, “as in Goins, . . . [the court had] no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” Id. ¶ 40 (cleaned up).

¶28        Similarly, in State v. Leech, 2020 UT App 116, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021), this court applied the holding of Goins where a defendant faced charges related to the alleged kidnapping of two men and murder of one of them, id. ¶¶ 22–24. The court considered the admissibility of preliminary hearing testimony from a man who helped tie up the victims, drove the group to the murder site, supplied the gun, and observed the murder. Id. We noted that “whether the defense had a similar motive to develop prior testimony for purposes of rule 804(b)(1) will often turn on the nature of a witness and her testimony.” Id. ¶ 40 (cleaned up). Where the witness in question “was not only a critical eyewitness, but also an accomplice to each of the crimes,” we determined that “[t]he opportunity to cross-examine this type of witness at a preliminary hearing will likely be a poor substitute for confronting the witness at trial, where the jury can observe [the witness’s] demeanor and assess . . . credibility firsthand.” Id. Accordingly, we held that “the State did not demonstrate that [the defendant] had an adequate opportunity and similar motive to cross-examine [the witness] at the preliminary hearing as he would have had at trial.” Id. ¶ 41.

¶29 The district court believed that the present case was distinguishable from Goins because that case involved an “incident that could have caused motive for [the witness] to fabricate or fashion . . . testimony in such a way that would be damaging to [the defendant].” See Goins, 2017 UT 61, ¶ 46. On the other hand, the court stated, “in the case before the [c]ourt, there’s nothing that has been pointed to specifically that would indicate that there is a similar motive for . . . Glenn to have fabricated any of his testimony.” But the court’s analysis on this point was inadequate, as a witness’s motive for fabrication is not the only circumstance that might impact a defendant’s motive for questioning a witness at a preliminary hearing. This is obvious from Ellis, where the witness had no motive to fabricate testimony and our supreme court still held that it had “no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” 2018 UT 2, ¶ 40 (cleaned up).

¶30 The district court erred in concluding that the motives at the preliminary hearing and at trial were the same. The court stated that during the preliminary hearing “there was an opportunity to cross-examine [Glenn] as to whether he was the source of . . . the injuries, whether he abused [Child].” “In fact,” it pointed out, “the State specifically questioned him on that.” It continued, “[The preliminary hearing judge] would have never shut that down and said, ‘No, even though the State had questioned specifically, did you cause the injuries, [d]efense you’re prohibited from going after him to follow up on that question.’ Certainly that would have been permitted by . . . the [j]udge.” But this analysis does not align with our supreme court’s in Goins. The Goins court specifically addressed the reality that a per se rule of admissibility for preliminary hearing testimony of unavailable witnesses “places magistrates in the uncomfortable position of choosing between conducting preliminary hearings in fidelity with article I, section 12 and permitting the type of examinations” that were standard before the constitutional amendment limited the scope of preliminary hearings. 2017 UT 61, ¶ 34. The district court fails to accept that, as the supreme court suggests, Defense Counsel could have reasonably expected the court to limit questioning to that which was necessary for probable cause and prepared to cross-examine Glenn accordingly. See id. We reasoned similarly in Leech, where the defendant’s “counsel admitted that he did not pose a question during his cross-examination of [the witness] that was objected to and sustained, but he maintained that he did not have the same opportunity and motive to cross-examine [the witness] as he would have had at trial because he understood the limited scope of the hearing.” 2020 UT App 116, ¶ 28 (cleaned up). Accordingly, the district court erred in determining that Meyer had the same motive and opportunity to question Glenn in the preliminary hearing as she did at trial because the judge would— presumably—not have prevented follow-up questions to those that were asked.

¶31        Instead, the court should have recognized that the motives changed with respect to questioning witnesses at the preliminary hearing versus at trial. The State was clear that its case was based on a process of elimination. This point is hardly significant at a preliminary hearing, which seeks to determine if there was probable cause—a low standard—for a jury to conclude Meyer caused the bruising. See id. ¶ 20 (reciting the magistrate’s explanation at the defendant’s preliminary hearing that “different standards of proof apply at a probable cause hearing than apply at trial” and that “probable cause means enough evidence that the court is convinced that a reasonable jury could find, not that they necessarily would, but that they could find the offenses charged were committed and that [the defendants] were the individuals who committed them” (cleaned up)). Moreover, at a preliminary hearing, the facts are construed in the light most favorable to the State’s case. See id. (indicating that the magistrate informed the defendant that “one of the most important [differences] is that any doubts or questions about evidence at a preliminary hearing get resolved in favor of the State and against the defendants” and explained that “the benefit of the doubt goes to the State in a preliminary hearing” (cleaned up)). On the other hand, at trial the State must prove a defendant’s guilt beyond a reasonable doubt, see, e.g.id. ¶ 64, and here the State needed to eliminate all other possible suspects beyond a reasonable doubt during trial. So the motive in questioning each witness at the preliminary hearing was to show lack of probable cause that Meyer was the source of Child’s bruises, while the motive at trial was to introduce reasonable doubt as to Meyer causing the bruises by convincing the court that someone else may have done so. In other words, with respect to Glenn, the motive shifted from showing that Glenn was the more likely source of the bruising to showing that Glenn could have caused the bruising such that there was reasonable doubt that Meyer caused it. Therefore, we hold, as did the Goins court, that it was “apparent on the record . . . that [Meyer] did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because at trial Meyer “had a motive to . . . question [Glenn’s] credibility that went beyond a preliminary hearing’s constitutionally limited purpose.” See 2017 UT 61, ¶ 46.

  1. Prejudice

¶32 “A determination of error in admitting [Glenn’s] preliminary hearing testimony is not alone enough to sustain a reversal. We must also find that error prejudicial. Prejudice in this setting requires a showing of a reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See State v. Ellis, 2018 UT 2, ¶ 41, 417 P.3d 86 (cleaned up).

¶33 The relevant caselaw indicates that errors in admitting preliminary hearing testimony are sometimes harmless. In Goins, the court held that the error was prejudicial as to one charge but harmless as to another because on the first charge, the “testimony was the primary evidence admitted in support of” that charge but on the second charge, the testimony did not address the major underlying facts and the guilty verdict was supported by other witness testimony and corroborating photographs. State v. Goins, 2017 UT 61, ¶¶ 50–51, 423 P.3d 1236.

¶34        Similarly, in Leech, this court identified prejudice with respect to one count but not as to three others. State v. Leech, 2020 UT App 116, ¶ 48, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021). For the first, we determined that the “charge could not be proven without crediting” the testimony of the kidnapping victim who wasn’t killed and “there [was] a reasonable likelihood that the jury would not have believed” this person “without the corroboration [the unavailable witness’s] testimony provided.” Id. ¶ 63. But we held that two of the convictions were independently supported by three other witnesses. Id. ¶ 52. And for the final charge, one of its elements “was not disputed at trial” and the other two elements “did not depend on the veracity of the [unavailable witness’s] account of the murder itself.” Id. ¶ 62.

¶35        In Ellis, the court found prejudice where “the preliminary hearing testimony in this case was central to the prosecution’s case on this charge.” 2018 UT 2, ¶ 2. The court so concluded because the witness “provided key pieces of evidence that the jury likely credited,” including her being “the only witness who could testify that the robber fled in a car”—making her “the crucial link for what occurred after [the clerk] lost sight of the robber.” Id. ¶¶ 43, 45.

¶36 Here, the court’s error in admitting Glenn’s testimony prejudiced Meyer because there is a “reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See id. ¶ 41 (cleaned up). The State’s presentation of the case against Meyer as a “process of elimination” impacts the fact-finder’s weighing of the evidence such that, for Glenn’s testimony to have been prejudicial, Meyer need show only that without the testimony, the court would have had a reasonable doubt that she was the source of the injuries. Meyer points us to this helpful insight offered by the Supreme Court of Illinois: “[I]f [the prosecution] intend[s] to obtain a conviction by the process of elimination by showing that no one else but [the] defendant could have been guilty, the burden [is] upon it to show that there was no one else in the other room.” People v. Boyd, 161 N.E.2d 311, 315 (Ill. 1959).

¶37        We agree with Meyer that removing Glenn’s erroneously admitted testimony makes a finding of reasonable doubt as to Meyer’s guilt much more likely. While Meyer’s own testimony corroborated Glenn’s account from the preliminary hearing that he was sleeping during the time Child was home from daycare until Father picked her up, that is not the only information Glenn provided. Glenn also testified that he did not cause the bruising. And he testified that, on the morning in question, he woke up and went directly to the car to drive Child to daycare, giving him no opportunity to interact with Child such that he could have caused her bruising that day.

¶38        The court, in providing the rationale for its conviction of Meyer, explained that it “found highly credible the testimony of” Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” And it said, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court clearly found that the bruises were caused before Father arrived, but it did not make a specific finding that the bruises could not have been caused earlier in the day. And Nurse, whose testimony the court found “highly credible,” testified multiple times that she could not provide a timeline for the cause of the bruising. When asked if it was “possible to at least rule out certain time frames,” Nurse responded, “What we were trained was that a fresher bruise is red or purple. . . . Red or purple means that this happened probably fairly close to the time that I saw her because of the darkness of the color, but . . . there’s no scientific way to date a bruise.” Nurse agreed that the bruises could have been caused “within hours.” But when Defense Counsel pressed, asking, “You testified a minute ago that you—it’s your opinion that with bruising, from what you observed, it’s more likely that it occurred like four hours before?” Nurse answered, “That day.” Defense Counsel stated, “That day. Two hours before, five hours before.” Nurse responded, “Purple-red is the colors you see first with bruising and there is—literally there is no way to determine when it happened.”

¶39 Given that removing Glenn’s testimony would have heightened the possibility that Glenn caused the injuries at some time outside the window between Child’s return from daycare and Father’s arrival, we conclude that Meyer was prejudiced. The State’s process-of-elimination approach makes Glenn’s preliminary hearing statements that he did not cause the bruising and did not have the opportunity to cause the bruising before Child went to daycare all the more significant. The State admitted as much when it argued for the admission of Glenn’s testimony, saying that “his testimony [was] necessary to the State to prove the case at trial.” We are hard-pressed to conclude that the testimony’s faulty admission was harmless when the State was so adamant that the testimony was essential in the first place. And the State fails to argue that Meyer was not prejudiced by the faulty admission or to point us to other evidence corroborating these key points of Glenn’s testimony. So without the preliminary hearing testimony, Glenn was not excluded—or at least not as easily excluded as he would have otherwise been. The State’s theory required it to eliminate all other possible suspects; without Glenn’s preliminary hearing testimony, it did not do so, and it is likely that the court would have concluded as much. In this respect, Glenn’s testimony is like that at issue in Ellis, because it was “central to the prosecution’s case” and “provided key pieces of evidence” under the State’s process-of-elimination approach. See 2018 UT 2, ¶¶ 2, 43. And this testimony is unlike that deemed nonprejudicial in Goins and Leech because Meyer’s conviction did “depend on the veracity of [Glenn’s] account.” See Leech, 2020 UT App 116, ¶ 62. Accordingly, the court’s error in admitting Glenn’s preliminary hearing testimony prejudiced Meyer.

CONCLUSION

¶40 The district court erred in admitting Glenn’s preliminary hearing testimony, and Meyer was prejudiced by that error. We therefore vacate Meyer’s conviction and remand this matter for further proceedings consistent with this opinion.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

 

[1] Since the time of her charges, the defendant has remarried. She uses a different last name but still accepts the use of “Meyer.” We continue to use “Meyer” for simplicity and for consistency with the case name.

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As an attorney, what did you learn during your first case in front of a judge and jury that is forever etched in your brain?

As an attorney, what did you learn during your first case in front of a judge and jury that is forever etched in your brain?

Interestingly enough, in 24 years of practice I’ve never tried a case to a jury. There are two reasons for this:

1) Of the few of cases that would have been jury trials had they gone to trial, each case was either dismissed before trial or settled before trial. I wanted the experience of handling a jury trial, it’s just never happened for me yet.

2) I’m a divorce lawyer and divorce trials are conducted without juries (they are tried to the judge only and are known as “bench trials” because the judge “on the bench” decides the case, not a jury).

Disappointing and frustrating things that I have learned from the divorce and child custody cases I have tried are, among other things:

  • After he retired (name withheld to protect and reward his candor) I asked one judge before whom I had appeared several times, “How much of what was presented to you during trial went in one ear and out the other?” He said (I quote verbatim), “Oh, about 50%.” I’m not saying all judges are that way, but there’s a lot they miss or simply ignore.
  • Telling lurid tales of physical, sexual, psychological, and emotional abuse are believed (or said to be believed) a shockingly high percentage regardless of whether they are known to be, in fact, true.
    • Consequently, in my experience most courts like to take a “better safe than sorry” and “abundance of caution” approach to allegations of physical, sexual, psychological, and emotional abuse, rather than have the guts to say (as they should), “Look, all I have allegations but no proof of them. When that happens I don’t have a preponderance of the evidence to conclude these tales are in fact true. They might be, but that also means they might not be. I won’t penalize the accused merely on the basis of the accusation alone.”
  • Some judges often treated statutes and court rules as optional instead of mandatory and sometimes knowingly violate the statutes rules to get to the trial outcome they desire rather than the outcome the statutes and court rules dictate.
  • “Let the witness finish answering your question” is often said in response to an objection to the witness either failing to answer a polar question (i.e., a question that requires a “yes or no” answer) with a “yes” or “no” or answering “yes” or “no” but then editorializing for several minutes thereafter.
  • “Objection, argumentative” followed by, “Sustained” are two of the most common errors in questioning a witness.
  • “It’s not hearsay because it’s not being offered for the truth of the matter asserted” is a “great” way to get hearsay admitted into evidence, whether the excuse is valid or not.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/As-an-attorney-what-did-you-learn-during-your-first-case-in-front-of-a-judge-and-jury-that-is-forever-etched-in-your-brain/answer/Eric-Johnson-311

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GAL recommendations are nowhere close to being the best way

GAL recommendations are nowhere close to being the best way to determining the child’s best interest.

This post is the thirteenth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

If a guardian ad litem claims to tell the court what a child said, that violates the rule against hearsay and violates the privilege against disclosure of attorney client communications.

When I point out to the court a guardian ad litem’s attempts to proffer hearsay statements, I am either ignored or told that there is a special exception for guardians ad litem (which is not true). When I try to invoke Utah rule of evidence 806 to cross examine a child on the hearsay statements (to determine whether what the child is alleged to have said is actually what the child said), I’m either giving an emperor’s new clothes kind of denial or just ignored. Now you understand that if the judge would question the child directly, there would be little to no need to cross-examine the child in the first place (if the judge questioned the children well, for example). Likewise, if a judge would question a child directly there would rarely, if ever, be a need to appoint a guardian ad litem or custody evaluator for the child’s benefit either. I do not understand why we have guardians ad litem or custody evaluators serve the purpose of “giving the child a voice” when the child has his or her own voice and is perfectly capable of using it, especially in articulating and attempting to advance the child’s own best interest by speaking directly with the court as to the child’s experiences, observations, ceilings, concerns, opinions and desires, without the child’s words being parsed or filtered or misconstrued by second and third hand intermediaries.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Does having the judge interview the children traumatize the children?

Does having the judge interview the children traumatize the children?

 

This post is the second in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

 

Does having the judge interview the children traumatize the children? You may have heard the argument along the lines of, “Having a judge interview children is tantamount to child abuse.” If you haven’t heard it yet, all you have to do to make that happen is propose that the judge interview your children. The same people who claim judges interviewing kids harms kids will, with a straight face, claim that having a child interviewed by a guardian ad litem or custody evaluator is in some way functionally and/or effectively different from and better than being interviewed by a judge. Really?

 

I submit to you that virtually no child knows or cares about the difference between a judge or a guardian ad litem or psychologist interviewing a child. And while I will be among the first to admit that a mental health professional like an LCSW or psychologist may generally be a bit more skilled than the average judge at interviewing children about child custody issues, I submit that the difference is not so great as to justify spending $3,000 to $10,000 or more on a custody evaluation with an LCSW or psychologist, especially when the custody evaluation interview, like the interviews with the GAL, are not on the record, which means there’s no way of knowing how well the interviews were conducted or what said or not said by the child, if in fact the interviews ever took place at all.

Contrastingly, an interview conducted by the judge, as authorized by the Utah legislature/Utah Code § 30-3-10(5), is free of charge to the parents, takes far less time than an interview with a custody evaluator, would take about as much time as an interview would with a GAL, is directly from the child witness’s mouth to the judge’s ear (that way there are no hearsay or other second hand information concerns), and is on the record to ensure that there is no question as to how well the interview was conducted, what the child was and was not asked, and what the child did and did not say in response.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

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