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Tag: sanctions

What Would Happen if One Parent Does Not Bring Their Child for a Utah Court-Ordered Custody Exchange?

First, we need to learn and understand the term for violating a court order. That term is “contempt of court.” In Utah, one commits contempt of court in a civil proceeding (like a child custody case in a divorce or between unwed parents) if, and only if, all of the following criteria are met:

As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so. The district court must make explicit findings, whether written or transcribed, on the three elements of contempt. In a civil contempt proceeding, those elements must be proved by clear and convincing evidence.

(Koehler v. Allen, 466 P.3d 738, 2020 UT App 73 (Court of Appeals of Utah))

So, if the parent did not meet for the child custody or visitation/parent-time exchange because his/her car was out of commission or because the flight home was delayed for weather or because he/she was in a coma (you get the idea), then that parent couldn’t be held in contempt because a) that parent did not have the ability to comply (at least at that time), and b) did not intentionally fail or refuse to comply with the court’s order, that parent cannot be held in contempt.

If the parent could comply with the order and intentionally violated the order, that parent can be held in contempt.

To hold a parent in contempt, you would need to file a motion to hold the parent in contempt. You could move for (but are not required to move for) sanctions against the parent for his/her contemptuous actions. Here is where you can find the forms for this, if you want to file them yourself, instead of retaining the services of an attorney to file and prosecute the motion for you (warning: rarely do people who aren’t attorneys fill out, file, and serve these forms correctly, and oftentimes a winning motion is lost because of it):

Motion to Enforce Order (utcourts.gov)

What kinds of sanctions can the court impose for contempt of court for noncompliance with the child custody and parent-time orders?

See Utah Code Section 78B-6-316:

Utah Code § 78B-6-316.  Compensatory service for violation of parent-time order or failure to pay child support.

(1) As used in this section, “obligor” means the same as that term is defined in Section 81-6-101.

(2) If a court finds by a preponderance of the evidence that a parent has refused to comply with the minimum amount of parent-time ordered in a decree of divorce, the court shall order the parent to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the parent about the importance of complying with the court order and providing a child a continuing relationship with both parents.

(3) If a custodial parent is ordered to perform compensatory service or undergo court-ordered education, there is a rebuttable presumption that the noncustodial parent be granted parent-time by the court to provide child care during the time the custodial parent is complying with compensatory service or education in order to recompense him for parent-time wrongfully denied by the custodial parent under the divorce decree.

(4) If a noncustodial parent is ordered to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the noncustodial parent’s parent-time with the child.

(5) The person ordered to participate in court-ordered education is responsible for expenses of workshops, classes, and individual counseling.

(6) If a court finds by a preponderance of the evidence that an obligor has refused to pay child support as ordered by a court in accordance with Title 81, Chapter 6, Child Support, the court shall order the obligor to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the obligor about the importance of complying with the court order and providing the children with a regular and stable source of support.

(7) The obligor is responsible for the expenses of workshops, classes, and individual counseling ordered by the court.

(8) If a court orders an obligor to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the obligor’s parent-time with the child.

(9) The sanctions that the court shall impose under this section do not prevent the court from imposing other sanctions or prevent any person from bringing a cause of action allowed under state or federal law.

(10) The Legislature shall allocate the money from the Children’s Legal Defense Account to the judiciary to defray the cost of enforcing and administering this section.

What else can the court order?

See Utah Code Section 78B-6-310:

Utah Code § 78B-6-310.  Contempt — Action by court.

(1) The court shall determine whether the person proceeded against is guilty of the contempt charged. If the court finds the person is guilty of the contempt, the court may impose a fine not exceeding $1,000, order the person incarcerated in the county jail not exceeding 30 days, or both. However, a justice court judge or court commissioner may punish for contempt by a fine not to exceed $500 or by incarceration for five days or both.

(2) A fine imposed under this section is subject to the limitations of Subsection 76-3-301(2).

And you can ask for the court to award you the fees and court costs you incurred in having to prepare and prosecute the motion to enforce the domestic relations order and for sanctions as well.

Should I call the police?

Whether to call the police depends on the circumstances, but generally, I discourage calls to the police simply because a parent refuses to obey a court order to meet to exchange custody of the children. If there is real concern (real concern) that a parent has absconded with or kidnapped a child, a call to the police is more than warranted, but calling the police in the hope that they will coerce or intimidate a parent into complying with the custody exchange orders usually doesn’t work and often makes you (if you call the police) look spiteful. And it upsets the police (they feel they have much better things to do than respond to calls of noncompliance with child custody exchange orders). Better to report the noncompliance to the police by calling them, reporting the noncompliance with a brief description of what happened, and asking the police department to make a record and give you the incident number for the report. That way, when you move to hold the contemptuous parent in contempt, you have proof that you were complying at your end and did complain to the police about it.

But I thought that noncompliance with child custody and parent-time orders is a crime.

In Utah, it is a crime (see Utah Code Section 76-5-303 (Custodial Interference)), but with extraordinarily rare exception, law enforcement officers simply refuse to enforce it. I’ve never witnessed anyone being arrested or even cited for it. Better to report the noncompliance to the police by calling them, reporting the noncompliance with a brief description of what happened, and asking the police department to make a record and give you the incident number for the report. That way, when you move to hold the contemptuous parent in contempt, you have proof that you were complying at your end and did complain to the police about it. That way you have documented the noncompliance and your reasonable efforts to enforce it to the extent that the police are willing to do anything connected with enforcement (which is, admittedly very little).

What if this is a chronic problem (the other parent repeatedly doesn’t show up for exchanges)?

If the other parent is shamelessly flouting the custody and parent-time exchange orders, and if you have a long enough history you can prove (and you can prove the no-shows are intentional), that could, if it’s egregious enough, constitute a basis for a modification of the child parent-time and/or child custody awards themselves. If you can prove that the chronic noncompliance constitutes “a substantial and material change in the circumstances upon which custody was awarded” and “that a modification is in the best interests of the child,” to remedy the problems being caused by these substantial and material change in the circumstances (See Hudema v. Carpenter, 1999 UT App 290, ¶ 22, 989 P.2d 491), you might prevail on such a petition.

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

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

2024 UT App 51 – Bailey v. Bailey

THE UTAH COURT OF APPEALS

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

Opinion No. 20220534-CA Filed April 11, 2024

Second District Court, Farmington Department

The Honorable Michael D. DiReda No. 094701582

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

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

HARRIS, Judge:

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

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

BACKGROUND
The Petition to Modify

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

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

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

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

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

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

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

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

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

The Trial

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

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

ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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


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

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

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

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

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

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

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

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

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Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Practically speaking (and in my experience), yes and no.

I’ll start with the “no” part of my answer because it’s short. I say “no” because although there are rules against frivolous, bad-faith litigation (such as litigation based on lies), these rules are shamefully under-enforced. So even if you can make a clear case for an opposing party engaging in frivolous, bad-faith litigation, in my experience courts rarely punish such behavior. It’s one of the main reasons people lose faith in the legal system when they find themselves subject to the system.

The best way to protect yourself from having a court believe the opposing party’s lies is to prove them false by objective, independently verifiable evidence that cannot be denied. So, document your words and deeds six ways from Sunday. If it’s not a close call, the opposing side’s efforts to cheat won’t make any difference.

And here’s my “yes” part of the answer: Most jurisdictions, including the jurisdiction in which I practice law (Utah), have a rule or rules that is intended to prevent frivolous litigation. One such rule in Utah is the Utah Rules of Civil Procedure rule 11 (which is almost identical to the Federal Rules of Civil Procedure rule 11). Utah’s rule 11 provides:

(b) Representations to court. By presenting a pleading, written motion, or other paper to the court (whether by signing, filing, submitting, or advocating), an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,

(b)(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(b)(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(b)(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(b)(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that paragraph (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated paragraph (b) or are responsible for the violation.

There are also laws against making frivolous and bad-faith claims. Utah’s law is:

78B-5-825. Attorney fees — Award where action or defense in bad faith — Exceptions.

(1) In civil actions, the court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith, except under Subsection (2).

(2) The court, in its discretion, may award no fees or limited fees against a party under Subsection (1), but only if the court:

(a) finds the party has filed an affidavit of impecuniosity in the action before the court; or

(b) the court enters in the record the reason for not awarding fees under the provisions of Subsection (1).

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

https://www.quora.com/Are-there-laws-that-protect-one-parent-from-being-a-victim-of-the-other-parents-continuous-reporting-through-the-other-parents-attorney-about-violations-of-a-restraining-order-that-are-all-lies/answer/Eric-Johnson-311

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Thomas v. Thomas – 2021 UT App – contempt, modification of custody

Thomas v. Thomas – 2021 UT App

2021 UT App 8
THE UTAH COURT OF APPEALS
JEREMY THOMAS, Appellant,
v.
JODY TASKER THOMAS, Appellee.
Opinion
No. 20190242-CA
Filed January 22,2021
Fourth District Court, Nephi Department
The Honorable Anthony L. Howell
No. 114600077
Rosemond G. Blakelock and Megan P. Blakelock, Attorneys for Appellant
Todd F. Anderson, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:

¶1        Jeremy Thomas appeals the district court’s order following a January 10, 2019 hearing, in which it held him in contempt and imposed various sanctions. We affirm but remand for a calculation of fees and costs on appeal.

BACKGROUND

¶2        Jeremy and Jody Tasker Thomas were divorced in 2013. The parties have two children: Son and Daughter. The divorce decree provided that during the school year, Jeremy would have primary custody of Son and Jody would have primary custody of Daughter. The parties were to share joint physical custody of the children during the summer. Since their divorce, the parties have had numerous conflicts regarding the children, which ultimately led the parties to stipulate to appointment of a special master to help them resolve their parenting disputes. With respect to establishing an order governing the special master’s authority (Order Appointing Special Master), the parties stipulated to use the “standard Special Master Order as used by Jay Jensen or Sandra Dredge.”[1]

¶3        The special master issued numerous orders in the years following his appointment. For example, he issued orders governing the children’s communication and cell phone use during parent-time and requiring both the parents and children to participate in therapy. He also issued orders outlining procedures for exchanges for parent-time that were intended to minimize conflict and prevent the children from defying the parent-time schedule.

¶4        Four years after the decree was entered, Jody filed a motion for order to show cause in which she alleged that Jeremy had violated various provisions of the parties’ divorce decree and the special master’s orders. These allegations revolved around one primary issue: that Jody believed Jeremy was alienating the children from her by speaking “derogatorily or disparagingly” about Jody, “[p]utting the children in the middle,” “discussing adult issues with the children,” and denying her parent-time.

¶5        The district court held a hearing on Jody’s motion for order to show cause, as well as various other pending motions, in November 2017. With respect to Jody’s motion, the court found that Jeremy was “using the teenager[s’] busy schedules as a way to triangulate animosity and contempt of the children against their mother,” that his actions made Jody out to be the “bad guy,” and that he had “shown a continued pattern towards alienating the love and affection of the children towards” Jody. The court also found that Jeremy had not complied with an order of the special master that he “engage in individual therapy.”

¶6        Based on these findings, the court concluded that Jeremy had violated provisions of the divorce decree as well as “multiple orders of the Special Master,” that Jeremy knew of the orders, that he had the ability to comply, and that he willfully refused to do so. As a result, the court found him in contempt and ordered sanctions of thirty days incarceration in county jail, suspension of any licenses issued by the state, and a $1,000 fine (the First Contempt Order). However, the court stayed the sanctions and gave Jeremy an opportunity to purge the contempt by doing four things: (1) “fully comply[ing] with the Special Master order(s) regarding counseling”; (2) “mak[ing] progress regarding his alienation of the children”; (3) “provid[ing] necessary releases for [his therapist] to provide regular reports to the Special Master and [Jody] regarding [Jeremy’s] progress”; and (4) paying Jody’s attorney fees and costs relating to several motions. The court then set the matter for further review. At the subsequent hearing, the court did not consider whether Jeremy had purged his contempt, but it ordered Jeremy:

  1. To strictly comply with the Custody order.
  2. To make no alterations or changes to the custody order without the prior agreement of [Jody].
  3. To compel the children to comply with the custody order, and to do so without any further alienation of the children.
  4. To not schedule or allow to be scheduled any activity with the children in conflict with the custody order.
  5. To not allow [Son’s] sports and motocross to interfere with [Jody’s] visitation without [Jody’s] agreement to a trade.
  6. To compel [Son] to comply with the custody order.
  7. To not allow the children to refuse to comply with the custody order.

¶7        As the year progressed, tensions between the parties continued. Several contentious issues arose relating to exchanges of the children, in which Jeremy “fail[ed] to ensure the children attend parent-time.” Although Jeremy would take the children to the exchange location, the children would refuse to go with Jody, and Jeremy would then allow them to go home with him. Additionally, when conflicts arose between Son’s extracurricular activities and his parent-time with Jody, Jeremy left it to Son to coordinate scheduling changes and make-up time with Jody, putting the full responsibility of disappointing Son on Jody if changes to the schedule could not be arranged.

¶8 Then, at some point in the summer of 2018, Daughter hatched a plan that would allow her to move in with Jeremy during the school year. She informed Jeremy that Jody had given her permission to register for school in Jeremy’s district. Without verifying this information with Jody, Jeremy went to the school and pre-registered Daughter to attend school where he lived. When it became apparent that Jody had not given permission for Daughter to change schools, Daughter “refused to go to school for a considerable time” in the hope that “if [she] didn’t go to school, they’d let [her] go to [her] dad’s.” Additionally, Daughter made attempts to harm Jody, which culminated in Daughter being placed in juvenile detention and referred to the Utah Juvenile Court system.

¶9        Jody filed another motion for order to show cause in December 2018, in which she alleged that Jeremy had failed to purge his contempt and that he should additionally be held in contempt for failing to obey a subpoena and for violating numerous orders of the court and special master. The district court held an evidentiary hearing on the motion on January 10, 2019, and again found Jeremy in contempt (the Second Contempt Order). In light of the voluminous evidence relating to Jeremy’s alienation of the children submitted to the court at that hearing and throughout the pendency of the case, the court made findings regarding anecdotal incidents that it believed were representative of the alienating behavior.

¶10 First, the court recited text messages from an incident in February 2018 in which Daughter refused to return to Jody’s home after parent-time with Jeremy and Jeremy supported her refusal. It then addressed an incident in July 2018 in which Jeremy “knew the children did not want to do” parent-time with Jody and “failed to do anything to encourage or ensure the children comply with [Jody’s] parent-time as required by the orders of the Court.” The court found that this conflict was “only one example of many where [Jeremy] failed to encourage and/or compel the children’s compliance with” Jody’s parent-time.

¶11      The court also made several findings regarding the school incident. The court found that either (1) Jeremy was lying to the court when he claimed Daughter told him Jody gave permission for her to “look at enrolling and attending school” in Jeremy’s district or (2) Daughter lied to Jeremy and Jeremy made no attempt to communicate with Jody to verify Daughter’s “unbelievable statement that she had [Jody’s] permission.” The court found that “as a result of [Jeremy’s] failure to act, [he] implanted the idea into [Daughter’s] mind that [he] was going to aid [her] in her plot to” live with Jeremy: “[T]he best-case scenario is that [Jeremy] was complicit with [Daughter’s] lies and plans. The worst-case scenario is that [Jeremy] helped [Daughter] orchestrate her plot and is lying to the Court.” The court found that Jeremy’s “willingness to allow [Daughter’s] defiance” was a “significant contributor” to her “pushing the envelope of her defiance” by “refusing to attend school for many weeks” and attempting to harm Jody.

¶12 Moreover, the court adopted as part of its order findings of fact submitted by the special master on December 18, 2018, and January 4, 2019. The special master found that although “there was an added measure of compliance” by Jeremy following the First Contempt Order, noncompliance escalated during the late summer and early fall of 2018 and Jeremy had “failed to demonstrate strict and consistent compliance with the custody order.” The special master’s findings went on to detail various incidents of parent-time conflicts and noncompliance by Jeremy, as well as how Jeremy’s failure to respond to the special master and comply with his orders had impeded the special master’s investigation of various incidents and allegations.

¶13 The special master also found that although Jeremy had attended ten sessions with his therapist following the First Contempt Order, he had not met with the therapist for the nine months prior to the January 2019 hearing. However, apart from observing that the therapist appeared not to have a full understanding of the situation, the court did not make additional findings regarding Father’s compliance with orders that he attend therapy.

¶14 The court determined that “the alienation of the children . . . is the most critical issue that the Court has taken into consideration.” It therefore found Jeremy “in continued contempt as [he] has failed to purge his contempt previously found, and also continued to violate the same orders,” including provisions of the divorce decree regarding alienation and putting the children in the middle, as well as “multiple orders of the Special Master.”

¶15      As a result of its contempt findings, the court ordered the following sanctions: (1) that Jeremy pay all Jody’s attorney fees and costs “incurred in relation to this case and her difficulty in co-parenting since February 3, 2018”; (2) that Jeremy pay all the special master “fees and costs incurred since November 14, 2017”; (3) that Jeremy pay for “all uninsured costs of counseling for the parties’ minor children” as well as for individual treatment for Jody and Jeremy with the family counselor; (4) that all parent-time and communication between Jeremy and Daughter be supervised until the special master makes findings that the alienation issues have been sufficiently addressed; (5) that custody of Son be changed from Jeremy to Jody and all parent-time and communication between Jeremy and Son be supervised; and (6) that the stay on two days of the thirty-day jail sentence imposed in the previous contempt order be lifted and that Jeremy serve those two days in the Juab County Jail. However, the court stayed the sanction changing custody and instituting supervised parent-time of Son conditioned on Son strictly complying with court-ordered parent-time and Jeremy showing “a good faith effort to ensure that the minor children are repairing their relationships with [Jody].”

¶16 Custody of Son never actually changed, and the parties reached a stipulation in July 2019 in which they agreed that “[c]ustody of [Son] shall remain [with Jeremy] based on the recommendation of the Special Master, who believes that [Jeremy] has (as of the date of the signing of this Stipulation) been in sufficient compliance with” the conditions imposed by the court in the Second Contempt Order. Son turned eighteen in August 2020.

¶17 Jeremy now challenges the Second Contempt Order on appeal.

ISSUES AND STANDARDS OF REVIEW

¶18      First, Jeremy claims that the district court violated rule 53 of the Utah Rules of Civil Procedure by treating the special master’s orders as orders of the court, the violation of which could justify a contempt finding. “The proper interpretation of a rule of procedure is a question of law, and we review the trial court’s decision for correctness.” American Interstate Mortgage Corp. v. Edwards, 2002 UT App 16, ¶ 10, 41 P.3d 1142 (quotation simplified).

¶19      Second, Jeremy raises several issues relating to the district court’s contempt findings and sanctions: (1) that the court exceeded its discretion in concluding that he had not purged his prior contempt found in the First Contempt Order, (2) that the court exceeded its discretion in finding him in further contempt of the court’s orders, (3) that the court lacked authority to change the custody of Son as a sanction for his contempt when no petition to modify was pending in the case, and (4) that other sanctions were inappropriate. “An order relating to contempt of court is a matter that rests within the sound discretion of the trial court.” Dansie v. Dansie, 1999 UT App 92, ¶ 6, 977 P.2d 539. Moreover, “we overturn a sanction only in cases evidencing a clear abuse of discretion.” Chaparro v. Torero, 2018 UT App 181, ¶ 20, 436 P.3d 339 (quotation simplified). “An abuse of discretion may be demonstrated by showing that the district court relied on an erroneous conclusion of law or that there was no evidentiary basis for the trial court’s ruling.” Id. (quotation simplified).

ANALYSIS

  1. Special Master Orders

¶20 Rule 53 of the Utah Rules of Civil Procedure states that “[a]ny or all of the issues in an action may be referred by the court to a master upon the written consent of the parties.” Utah R. Civ. P. 53(a). Regarding the powers of a special master, the rule states that “[t]he order of reference to the master may specify or limit [the master’s] powers.” Id. R. 53(c).

¶21      A special master was appointed in this case based on the parties’ stipulation, in which they agreed to give the master authority in accordance with “[t]he standard Special Master Order as used by Jay Jensen or Sandra Dredge.” The Order Appointing Special Master grants the special master authority to issue “directives” regarding numerous specified issues such as scheduling, communication, and therapy and specifies that these directives “are effective as orders when made and . . . continue in effect unless modified or set aside by a court of competent jurisdiction.” The Order Appointing Special Master also grants the special master the authority to issue “recommendations” on other specified issues, such as significant changes to parent-time or conflicts on fundamental parenting decisions relating to healthcare, religion, and education. It states that recommendations—unlike directives—do not become court orders unless and until the district court adopts them.

¶22 Jeremy first asserts that the district court erred in determining that “all the Special Master ‘Orders’ issued” as of the January 10, 2019 hearing “are ‘directives’” under the Order Appointing Special Master, because the court did not “examin[e] the subject matter contained in each pleading the Special Master filed.” However, Jeremy provides no support for his assertion that the district court did not examine the subject matter of the individual special master orders. Further, he makes no attempt to point us to orders that should have been considered recommendations rather than directives. Thus, he has not adequately briefed his claim that the district court erred in classifying all the prior special master orders as directives. See State v. Thomas, 961 P.2d 299, 304 (Utah 1998) (“It is well established that a reviewing court will not address arguments that are not adequately briefed.”).

¶23 Jeremy further asserts that even if the special master orders were directives, they could not have become effective until the district court acknowledged them as such in its Second Contempt Order. But this position is contrary to the plain language of the Order Appointing Special Master, which states that directives “are effective as orders when made and . . . continue in effect unless modified or set aside by a court of competent jurisdiction.” The court’s acknowledgment that the special master orders were directives is not the event that made them effective. They were effective and binding at the time the special master issued them, in accordance with the Order Appointing Special Master.

¶24 To the extent that Jeremy challenges the special master’s authority to make binding directives under rule 53, such a challenge was previously foreclosed by this court in Wight v. Wight, 2011 UT App 424, 268 P.3d 861, in which we rejected a similar argument challenging a district court’s ability to grant a special master limited power under rule 53 to make binding decisions on specific issues. Id. ¶ 16. While rule 53 does not directly give the special master authority to make binding directives, it gives the court the ability to “specify or limit” the special master’s powers in the Order Appointing Special Master. See Utah R. Civ. P. 53(c). The parties in this case stipulated to the appointment of the special master and to the Order Appointing Special Master that would be used. The grant of limited decision-making power in an Order Appointing Special Master is permitted under the “considerable discretion” rule 53 grants district courts in using a special master. See Wight, 2011 UT App 424, ¶ 16. Thus, the court’s acknowledgment of the binding nature of the special master’s directives in this case is not contrary to rule 53. As in Wight, “nothing in the [Order Appointing Special Master] limited either party’s ability to challenge the decisions of the special master by filing objections with the trial court.” Id. But unless and until such an objection was made and ruled on, the special master’s directives were “effective as orders” under the Order Appointing Special Master.

¶25      And while Jeremy asserts that his due process rights were violated when the court treated the directives as orders of the court and held him in contempt for violating them, he has failed to explain why. “At its core, the due process guarantee is twofold—reasonable notice and an opportunity to be heard.” In re adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215. Jeremy does not assert that he lacked notice of the orders of the special master. Moreover, given that the orders were directives—a finding that Jeremy has failed to adequately challenge, see supra ¶ 22—and that the Order Appointing Special Master clearly informed Jeremy that directives are binding when issued, he should have known that he was required to comply with them. Further, the Order Appointing Special Master gave Jeremy an opportunity to present any grievances regarding the special master’s orders to the court by means of an objection. He does not assert that he was somehow precluded from objecting to the special master’s orders in the manner prescribed by the Order Appointing Special Master. Therefore, we find no merit in Jeremy’s claim that the district court violated his due process rights in holding him accountable for failing to comply with the special master’s orders.[2]

II. Contempt Finding and Sanctions

¶26 Next, Jeremy raises several challenges to the district court’s contempt findings and sanctions. We address each in turn.

A. Failure to Purge Contempt

¶27 Jeremy first asserts that the court exceeded its discretion in finding that he had not purged his prior contempt, claiming that its findings were not supported by the evidence. To purge his contempt, Jeremy was required to do the following four things: (1) “fully comply with the Special Master order(s) regarding counseling”; (2) “make progress regarding his alienation of the children”; (3) “provide necessary releases for [his therapist] to provide regular reports to the Special Master and [Jody] regarding [Jeremy’s] progress”; and (4) pay Jody specific attorney fees and costs.

¶28 Jeremy asserts that the district court did not make appropriate findings regarding whether he had purged his contempt. As to the first, third, and fourth requirements imposed by the court, we agree that the district court did not clearly address Jeremy’s compliance.[3] However, that fact does not undermine the court’s determination that Jeremy had not purged his contempt. To purge the contempt, Jeremy was required to comply with all four of the requirements. Thus, his failure on even one of the requirements would support a determination that he had not purged his contempt.

¶29 The court made extensive findings regarding Jeremy’s failure to comply with the second requirement—that he make progress on his alienation of the children. Indeed, the court observed that “alienation of the children . . . is the most critical issue that the Court has taken into consideration” in concluding that Jeremy had “failed to purge his contempt.” The court’s findings regarding alienation were extensive and included detailed recitals of the events relating to contentious exchanges in February and July 2018, as well as the events relating to Jeremy’s support of Daughter’s scheme to change schools. Further, the court adopted the special master’s findings, which recited additional instances of parent-time interference and found that Jeremy had “not made consistent progress with the issues of alienation” and, despite “greater compliance and progress” initially following the First Contempt Order, had “fallen into old patterns, continuing to impact the children’s relationship with” Jody.

¶30 Jeremy does not assert that the evidence could not support these findings but instead reargues the evidence, relying solely on the testimony of his own therapist that Jeremy’s progress on alienation issues had been “very good.” But the district court discredited this testimony as unreliable because it believed that, “whether intentionally or unintentionally,” Jeremy had given the therapist “a grossly distorted history of this case,” so the therapist did “not have an understanding of what is actually going on.”[4] Further, the court made extensive findings concerning events that demonstrated Jeremy had not made progress on alienation issues. The underlying evidence supports these findings, and in turn, the findings support the district court’s determination that Jeremy had failed to purge his contempt.

B. Additional Contempt

¶31 Jeremy also asserts that he should not have been held in further contempt, but his arguments in support of this assertion lack merit.

¶32      To find someone in contempt, a court must find “that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988). Here, the court found all three of these elements. Jeremy does not directly challenge the court’s findings on these elements[5] but raises related issues that he claims precluded the court from finding him in contempt.

¶33      First, he takes issue with a statement the court made in its findings about a conflict between the parties over a trip to England that had occurred prior to the First Contempt Order. The court’s findings regarding alienation in the Second Contempt Order stated that it had “identified, with specificity, three circumstances that are not the only examples, but typify the behavior [Jeremy] has engaged in that encourages alienation between the minor children and [Jody].” The court then follows this introduction with the statement, “First, during the course of the evidentiary hearing, in the Court’s questioning of [Jeremy], the Court brought up the previous canceled trip to England and the findings the Court made regarding that event.” Jeremy asserts that it was inappropriate for the court to rely on incidents relating to the England trip to find him in further contempt because those events occurred before the First Contempt Order.

¶34 Admittedly, the inclusion of this statement here is somewhat confusing. Subparagraphs underneath this statement in the court’s order proceed to recite the details of the February 2018 parent-time incident and do not again refer to the England trip. In fact, the court does not mention or discuss the England trip beyond the above-quoted language. Moreover, the court goes on to discuss three distinct incidents, apart from the England trip, as examples of Jeremy’s alienating behavior—the February 2018 incident, the July 2018 incident, and the incident involving Daughter’s schooling.

¶35 Given the complete lack of any further discussion of the England trip and the fact that the court indicated its intent to discuss “three circumstances” that typified Jeremy’s behavior, we are inclined to believe that the statement about the England trip was misplaced and that it was the other three incidents, discussed in more detail, that formed the basis of the court’s contempt finding. The court made no findings or conclusions relating to the England trip but merely mentioned that it had questioned Jeremy about it. And the other three incidents, in addition to the other incidents identified in the special master’s findings, which the court adopted as part of the Second Contempt Order, provided ample support for the district court’s contempt finding. Thus, there is no indication in the Second Contempt Order that the court actually placed any weight on the England trip incident when finding Jeremy in further contempt.

¶36 Second, Jeremy asserts that the court’s findings improperly relied on certain affidavit evidence provided by Jody that he claims was not appropriately admitted. However, any error by the court in considering that evidence was invited when Jeremy indicated that he had no objection to the court considering affidavits “in lieu of direct testimony, so long as the party is then available for cross examination.” See Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366 (“A party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.” (quotation simplified)). Furthermore, at the evidentiary hearing, Jody reaffirmed the statements in her affidavit, and Jeremy took the opportunity to cross-examine her about them.

¶37 In short, we see no merit to any of Jeremy’s arguments challenging the basis for the court’s new findings of contempt. Indeed, the evidence of Jeremy’s alienating behavior was substantial, and the court’s findings were thorough. We do not hesitate to uphold the court’s additional contempt findings in the Second Contempt Order.

C. Change of Custody

¶38 Jeremy next argues that the district court exceeded its discretion by awarding a change of custody of Son as a sanction for his contempt, particularly where no petition to modify was pending. However, this particular sanction was stayed, and the stay was never lifted. Instead, the court entered a new order, pursuant to the parties’ stipulation, in July 2019. This order declared that “[c]ustody of [Son] shall remain [with Jeremy] based on the recommendation of the Special Master, who believes that [Jeremy] has (as of the date of the signing of this Stipulation) been in sufficient compliance with” the conditions imposed by the court in the Second Contempt Order. The order went on to indicate that the parties’ stipulation “resolves any and all issues related to . . . custody of [Son].” Moreover, Son turned eighteen in August 2020 and is therefore no longer subject to the jurisdiction of the court. See generally Utah Code Ann. § 15-2-1 (LexisNexis 2013) (“The period of minority extends . . . to the age of 18 years . . . .”); id. § 30-3-1(5)(d) (2019) (granting district courts jurisdiction over “the custody and maintenance of minor children” in a divorce).

¶39 Because the change-of-custody sanction was never implemented and Son is no longer subject to the jurisdiction of the court, we agree with Jody that this issue is moot. See State v. Steed, 2015 UT 76, ¶ 6, 357 P.3d 547 (“An argument is moot if the requested judicial relief cannot affect the rights of the litigants. In other words, an appeal is moot if the controversy is eliminated such that it renders the relief requested impossible or of no legal effect.” (quotation simplified)).

¶40      Jeremy nevertheless asks us to review this issue “because it is of wide concern, affects the public interest, is likely to recur, and yet evades review.” See Osguthorpe v. Osguthorpe, 872 P.2d 1057, 1058 (Utah Ct. App. 1994). But this does not appear to us to be an accurate statement. Indeed, our court has previously addressed this very issue. See Chaparro v. Torero, 2018 UT App 181, ¶ 40, 436 P.3d 339 (“A district court cannot avoid making [best interests] findings by modifying custody arrangements as a sanction.”); see also Blanco v. Blanco, 311 P.3d 1170, 1175 (Nev. 2013) (en banc) (“A court may not use a change of custody as a sword to punish parental misconduct, such as refusal to obey lawful court orders, because the child’s best interest is paramount in such custody decisions.” (quotation simplified)), quoted in Chaparro, 2018 UT App 181, ¶ 40. Thus, the issue is clearly not one that evades review, and it is one on which we have already provided guidance. Accordingly, we decline to consider this moot issue.

D. Other Sanctions

¶41 Finally, Jeremy asserts that “all sanctions, including attorneys fees, supervised parent-time, and the change of custody should be reversed.” However, we reject his arguments on this point because they are inadequately briefed. State v. Thomas, 961 P.2d 299, 304 (Utah 1998) (“It is well established that a reviewing court will not address arguments that are not adequately briefed.”).

¶42 First, he asserts that attorney fees for “things such as charges on December 17, 2018 regarding mediation discussions with a mediator and charges on July 11, 2018 regarding a separate case involving a Lis Pendens” were unrelated to the order to show cause and therefore should not have been included in the sanctions. This is the extent of his argument. He makes no attempt to explain specifically why these charges were unrelated to the show cause motion or even to identify all the charges he is contesting. Jeremy’s limited analysis is inadequate to challenge the propriety of the attorney fees sanction, and we therefore decline to address his argument.

¶43 Apart from Jeremy’s minimal discussion regarding the propriety of the attorney fees, he does not challenge the appropriateness of the sanctions. Instead, his argument alleges that the court “failed to make the required findings with respect to contempt.” See generally Marsh v. Marsh, 1999 UT App 14, ¶ 10, 973 P.2d 988 (explaining that a court cannot hold someone in contempt unless it finds “from clear and convincing proof that the contemnor knew what was required, had the ability to comply, and willfully and knowingly failed and refused to do so” (quotation simplified)). But this argument, too, is inadequate. Jeremy makes two points: (1) that he could not have “willfully refused to allow [Daughter] to attend school” because he did not have custody of her and (2) that Jody “failed to submit any evidence of [his] contempt.”

¶44 The first argument is irrelevant because the school issue was not that Jeremy did not allow Daughter to attend but that he, at best, “was complicit with [Daughter’s] lies and plans” and, at worst, “helped [Daughter] orchestrate her plot” not to attend school and that his actions exemplified “the behavior [he] has engaged in that encourages alienation between the minor children and” Jody. Moreover, other instances of alienation supported the court’s decision to hold Jeremy in contempt for violating provisions of the divorce decree pertaining to alienation, so even if we agreed with him that the school incident could not support the contempt finding, his failure to specifically challenge the other findings supporting the contempt would preclude us from reversing the court’s decision. Cf. Gilbert v. Utah State Bar, 2016 UT 32, ¶ 24, 379 P.3d 1247 (“[We] will not reverse a ruling of the district court that rests on independent alternative grounds where the appellant challenges only one of those grounds.”). As to his second argument, we have already addressed and rejected it. See supra ¶ 36. Thus, we reject Jeremy’s challenge to the court’s contempt sanctions.

III. Attorney Fees

¶45      Jody requests her attorney fees and costs on appeal on the ground that she was awarded fees below. “The general rule is that when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Robertson’s Marine, Inc. v. I4 Solutions, Inc., 2010 UT App 9, ¶ 8, 223 P.3d 1141 (quotation simplified). Although there are exceptions to this general rule, see, e.g., Liston v. Liston, 2011 UT App 433, ¶ 27 n.6, 269 P.3d 169, Jeremy has not argued that any exception applies here. Thus, because Jody has prevailed on appeal, we grant her request for fees and costs on appeal and remand for the district court to calculate the award.

CONCLUSION

¶46 Neither the Order Appointing Special Master nor the court’s interpretation and application of that order violated rule 53 of the Utah Rules of Civil Procedure. Further, Jeremy has not adequately alleged any error or abuse of discretion in the court’s determination that he had failed to purge his prior contempt and that he had engaged in additional contemptuous acts. Jeremy’s challenge to the change-of-custody sanction is moot, and his challenges to the other sanctions are inadequately briefed. Because Jody has prevailed on appeal and was awarded fees below, she is also entitled to fees on appeal. Accordingly, we affirm the Second Contempt Order but remand for the district court to calculate an award of fees and costs to Jody on appeal.

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

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[1] Although details about Jay Jensen and Sandra Dredge are not found in the record, we take judicial notice, purely for the purpose of providing background information, that the former is a therapist and the latter an attorney. Both have practices in Utah County and have served as special masters in several domestic cases there.

[2] Even if we were persuaded that the court somehow erred in holding Jeremy in contempt based on the orders of the special master, it is unclear how that would alter the outcome of this case. The court’s contempt finding was not based solely on violations of the special master’s orders but rested in large part on his violation of those provisions of the divorce decree prohibiting alienation.

[3] The adopted findings of the special master did suggest that Jeremy had not “fully compl[ied] with the Special Master order(s) regarding counseling,” as he had not met with therapist for the nine months prior to the January 2019 hearing. However, the district court did not analyze Jeremy’s compliance with this mandate.

[4] Jeremy does not challenge the court’s determination that his therapist’s testimony was not credible but instead blames the special master and the district court for any distortion of the facts because the special master selected and the court appointed the therapist to function solely as an individual therapist for Jeremy and not to meet with other members of the family or evaluate the family as a whole. He asserts that if the therapist had been required to consult with others, the therapist would have had a fuller picture of the situation and that the lack of such consultation precluded Jeremy from complying with the court’s mandate that he make progress on his alienation issues. But even accepting Jeremy’s premise, these facts suggest only that the therapist’s lack of information from other sources might have limited his utility as a witness to Jeremy’s progress, not that Jeremy was precluded from making progress on his alienation issues. It was Jeremy who continued to make poor decisions by interfering with parent-time, supporting Daughter’s scheme to change schools, and generally undermining Jody. And it was Jeremy who, in meeting with the therapist, left out crucial information that could have helped the therapist better understand and help him with the alienation issues. The fact that Jeremy failed to make progress in spite of therapy does not come down to whether the special master or court ordered the therapist to meet with other individuals in the family. Ultimately, it was Jeremy’s responsibility to comply with the court’s order that he make progress on his alienation issues, and he failed to do so.

[5] Jeremy does attempt to challenge the court’s findings regarding the school incident, but he does so in the context of challenging the sanctions rather than in the context of challenging the contempt finding. In any event, we reject those arguments as discussed infra ¶ 44.

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Are bedbugs a basis for modifying child custody or parent-time?

If one parent has bedbugs and the children will not sleep at the parents home, does the other parent have to make a motion for full custody? Can the parent without bedbugs be sanctioned for failure to coparent?

I am glad you asked this question because in reading it and thinking about it I finally conceived of a way to express in words the problem that most non-lawyers encounter when asked this type of question.

Your question, and many questions like it, is grounded in a belief that the court will see your case and the issues raised in your case purely from your perspective. You cannot take such a thing for granted. It’s an easy trap to fall into (frankly, we all do), and a trap that causes a lot of people tremendous disillusionment and frustration with the legal system. While I am no raving fan of the modern legal system, it would be unfair to fault the legal system when it confronts issues over which reasonable minds can differ.

Here’s the key:

1) When analyzing a potential legal issue and your likelihood of success on an argument over that issue, don’t assume the court sees the issue as you do; indeed, don’t even presume that the court sees an issue at all.

2) Try seeing the issue as best you can A) from as many different reasonable perspectives as possible and then ask yourself whether your perspective is the most readily understandable and acceptable; and B) from the perspective your judge would most likely see the issue, or claim to see the issue, in the real world.

3) Argue only those issues A) that you believe you have a better than even chance of prevailing upon or B) that you can argue in good faith on the basis of principle, win or lose (meaning: you won’t act shocked or surprised or outraged if you lose an argument over a close issue over which you know reasonable minds can differ, nor will you smugly claim, with the benefit of hindsight, “Oh, our success was never in doubt.”)

OK, let’s conduct this analysis using your bedbugs scenario:

Even if a parent knows, from having witnessed it first-hand, that there are bedbugs at his or her ex-spouse’s house, that does not mean that the court must believe it. If a parent knows that the children refuse to go to the other parent’s house or refuse to sleep there (regardless of the reason), that does not mean that the court will believe it. Why? Because the court does not know what you know. This is why, when you seek relief and orders from courts are required to meet their burdens of proof, so that the court has sufficient factual and legal basis to grant the relief you seek.

And so questions like yours need to be analyzed on at least two levels: 1) Will the court believe your allegations?, and 2) If so, will the court take the actions you wanted to take?

Using your questions as a model:

Bedbugs and the modification of custody or parent-time

  • If a parent were only to come into court with just a bare, unverifiable claim that there are bedbugs in the other parent’s home, in my mind that would not rise to the level of proof by a preponderance of the evidence, and so if I were the judge, I could not conclude as a matter of fact that the allegation is true. And where an argument/request for sole custody rests on the other parent having bedbugs in his/her house, if I were the judge I would have to rule against that argument/request.
  • If a parent were to come into court with verification of his/her claim that there are bedbugs in the other parent’s home, that fact alone would not determine that the children must be in the sole custody of the other parent. First, the question the court would have to ask and resolve is something to the effect of:
    • “Is the presence of bedbugs in the parent’s home a sufficiently compelling reason to deny that parent custody or parent time on that basis alone?”
    • “Are bedbugs a threat to the health or life of the children?” Or just a nuisance?
    • “If bedbugs are not a threat to the health or life of the children, can I, as the judge, conclude that having the children exposed to the mere nuisance of potential bedbug bites is still somehow a sufficiently compelling reason to reduce or eliminate the amount of time the children spend with parent whose home is infested with bedbugs?”
  • If the court were to conclude that the answer to that question is “no,” then the presence of bedbugs alone in the parent’s house would not be enough to win a motion or petition for sole custody.
    • If the court were to conclude that the answer to that question is “yes” (and it’s not a given that the answer will be “yes”[1]”), then the court could, on that basis alone, modify custody or parent time, IF the court could rationally explain why the mere presence of bedbugs is reason enough to reduce or eliminate the amount of time the children spend in the custody or care of the parent with bedbugs at his/her house.
      • But “yes” might also lead to an additional question or additional questions, such as: Can the parent with bedbugs at his/her house mitigate the problem so that there’s no need to modify custody or parent time? Is the parent with bedbugs at his/her house willing to take necessary and immediate measures to solve the problem? What if, until the bedbug problem is eliminated, we simply require the parent who has bedbugs at his/her house to exercise custody or parent time at a location other than the parent’s house?” So even if the court finds that bedbugs could be reason to modify custody or parent time that does not mean that the court necessarily must modify custody or parent time in response to the presence of bedbugs.

Will a Parent Be Sanctioned if the Kids Refuse to Spend Time at the Parent’s Home Where There are Bedbugs present?

  • I will analyze this question by starting with the presumption that the court has determined that there are bedbugs present in the other parent’s home.
  • The court might then ask, “Is the presence of bedbugs in that parent’s home justification for modifying the custody or parent time orders?” This could lead to:
    • “Are bedbugs a threat to the health or life of the children?” Or just a nuisance?
    • “If bedbugs are not a threat to the health or life of the children, can I, as the judge, conclude that having the children exposed to the mere nuisance of potential bedbug bites is still somehow a sufficiently compelling legal reason for the other parent to refuse to comply with the court’s custody and visitation orders as to the other parent?”
      • If the answer to the previous question is “no”, then the other parent likely will be sanctioned, BUT even then, it’s possible that the court good rule along the lines of something like this: “I do not find that the children’s exposure to bedbugs at this parent’s house constituted a justification for noncompliance with the custody and parent time orders, but I also find that the noncompliant parent was not noncompliant for malicious, self-serving, or bad faith purposes, but truly believed that the bedbugs posed a bigger problem in his/her mind than in the mind of the court. So I’m not going to sanction this parent in this instance because I don’t believe sanctions are appropriate. And I don’t believe sanctions are appropriate because I don’t believe sanctions are needed to motivate this parent to comply with court orders now that I have explained my analysis of the situation. As long as this parent understands that he/she cannot act as a law unto himself/herself, I’m willing to give the noncompliant parent the benefit of the doubt in this instance.”
      • If the answer to the previous question is “yes”, then the other parent cannot be sanctioned.

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

https://www.quora.com/If-one-parent-has-bedbugs-and-the-children-will-not-sleep-at-the-parents-home-does-the-other-parent-have-to-make-a-motion-for-full-custody-Can-the-parent-without-bedbugs-be-sanctioned-for-failure-to-coparent/answer/Eric-Johnson-311

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Can the Utah Divorce Court Force My Ex to Refinance?

Question: My ex was awarded the house in our divorce, as long as my ex refinances the house, so that I am removed from the loan encumbering the house. But it’s been months and my ex has not refinanced. My ex hasn’t even tried to refinance the loan to remove me as a liable party. Can the court order my ex to refinance now?

Answer: The court already ordered your ex to refinance, so what you’re really asking is whether the court can force your ex to refinance or perhaps speed up the refinance process. If the court determines that your ex is willfully violating the order to refinance, then the court can do some things to coerce your spouse, such as imposing a fine up $1,000, order your incarcerated in the county jail for up to 30 days, or both (these are known as sanctions for contempt of court; Utah Code Section 78B-6-310). If your ex has little or no money, a fine won’t be any motivation and, for that matter, neither may a jail sentence, but if your ex isn’t refinancing just to be lazy or malicious, sanctions for contempt of court might do the trick. If your ex cannot refinance and you worry about staying on the loan without the benefit of having possession of the house, you could file a motion or new law suit asking the court to order the house sold–that way the loan will get paid off and you won’t be liable anymore.

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

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