Bailey v. Bailey, 548 P.3d 519

Amy L. Bailey and Danny Ray Bailey divorced in 2010; Danny was required to pay child support based on his self-employment income.
In 2019, Amy sought to modify the child support order, alleging Danny’s income had significantly increased.
Discovery issues occurred, especially with the late disclosure of Danny’s 2020 tax return and Amy’s late expert witness disclosures.
The trial court sanctioned Danny for discovery violations by prohibiting him from presenting evidence or refuting Amy’s evidence on his income, resulting in a one-sided proceeding.
The court accepted Amy’s evidence as essentially unrebutted, made a significant upward modification to child support, and awarded substantial arrearages.
Danny appealed, arguing that the sanction was improper and prejudiced the outcome.

Issue	Amy's Argument	Danny's Argument	Held
Whether Rule 37 sanctions were proper against Danny for alleged discovery violations	Danny’s late disclosure deprived Amy’s experts of info needed to form opinions	He disclosed the tax return within the pretrial deadline & was never under specific court order	Sanctions under Rule 37 improper; no court order was violated
Whether Rule 26 justified any sanction	No express argument for narrower Rule 26 sanctions	Rule 26 only allows exclusion of evidence not disclosed, not blanket bar on defense	Rule 26 did not justify precluding Danny from defending on income issue
Admissibility of Amy’s expert (Accountant) as a factual witness	Should be allowed as factual witness since expert disclosure timeline was missed due to Danny’s delay	Was a surprise expert, no report disclosed, not properly fact witness	Expert should not have testified; improper as fact witness; testimony was expert in nature
Prejudice from the court’s sanction	Implied that late disclosure caused burden but result fair	Could not challenge income figures or defend himself at trial, affecting outcome	Sanction prejudiced defense; reversal and new trial required

Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54 (Utah Ct. App. 2021) (standard of review for rule interpretations)
Butler v. Mediaport Ent. Inc., 2022 UT App 37 (Utah Ct. App. 2022) (review of adequacy of disclosures)
Raass Bros. Inc. v. Raass, 2019 UT App 183 (Utah Ct. App. 2019) (sanctions reviewed for abuse of discretion)
Northgate Village Dev., LC v. City of Orem, 2019 UT 59 (Utah 2019) (standard for admissibility of expert testimony)
Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137 (Utah Ct. App. 2020) (rules for imposing rule 26 and 37 discovery sanctions)
Dierl v. Birkin, 2023 UT App 6 (Utah Ct. App. 2023) (rule 26(d) automatic sanction for non-disclosure)
Johansen v. Johansen, 2021 UT App 130 (Utah Ct. App. 2021) (purpose of rule 26 – prevent surprise testimony at trial)