437 P.3d 370
Utah Ct. App.2018Background
- Father and Mother divorced (bifurcated; supplemental decree 2013). Four children resided primarily with Mother; Father had statutory parent-time.
- Father filed (Feb 2015) to modify custody and support; Mother counter-petitioned to modify parent-time and child support. Discovery was prolonged and Father provided incomplete discovery responses.
- Trial (Oct 2016) addressed discovery sanctions, custody, child support, parent-time, medical costs, and attorney fees.
- District court found no substantial and material change in circumstances to warrant a custody modification, but did modify parent-time scheduling (set pick-up times; Sunday returns at 8 p.m.; school-year weekends adjusted to Fri–Sun with summer make-up).
- Court imputed increased incomes to both parties for child-support recalculation.
- Court found Father acted in bad faith in discovery and awarded: (1) half of Mother’s attorney fees/costs related to discovery sanctions (remanded for specific findings on amount), and (2) half of Mother’s general litigation fees for bad faith (reversed on appeal as erroneous).
Issues
| Issue | Father’s Argument | Mother’s Argument | Held |
|---|---|---|---|
| Whether the court erred by finding no material and substantial change in circumstances for custody while modifying parent-time | The parent-time changes (school schedule/pick-up times) reflect a material change requiring custody analysis | Change for parent-time is a lesser showing than for custody; separate inquiries | Affirmed: parent-time requires only "some showing" of change; court may modify parent-time without meeting custody threshold (no abuse of discretion) |
| Admissibility of Mother’s expert (CPA) without formal Rule 26(a)(4) disclosure | Exclusion required; nondisclosure prejudiced Father | Nondisclosure was harmless; court offered continuance and Father declined | Affirmed: nondisclosure found harmless; expert testimony admitted |
| Admission of Mother’s trial exhibits after service via email link to Google Drive | Email link was inadequate service and prevented access; exclusion required | Email link satisfied service; Father had accepted email service earlier and did not seek assistance | Affirmed: emailing a Google Drive link satisfied Rule 5; exhibits admissible |
| Exclusion of 14-year-old child’s testimony/affidavit about custody preference | Court should have received child’s wishes per Utah Code §30-3-10; exclusion was error | Child’s testimony would only matter in best-interest analysis, which applies only after finding material change | Not decided if error, but harmless: no material change found so exclusion caused no prejudice |
| Award of attorney fees as discovery sanctions under Rule 37 | Father argued sanctions were excessive/unsupported | Mother argued Father’s discovery noncompliance justified fees | Affirmed sanctionability (bad-faith discovery conduct) but remanded to supply factual findings supporting the fee amount |
| Award of attorney fees to Mother under bad-faith statute (Utah Code §78B-5-825) | Father: some claims (e.g., Mother’s degree and income) had merit; fees statute requires both lack of merit and bad faith | Mother: Father’s claims were meritless and litigated in bad faith | Reversed: court erred—Father’s action not entirely without merit, so bad-faith statutory award improper |
| Challenge to district court findings/conclusions | Father contended multiple findings unsupported and procedural errors in entry of findings | Mother argued findings are supported and many objections unpreserved | Affirmed: Father failed to preserve some issues and did not meet burden to show findings clearly erroneous |
Key Cases Cited
- Doyle v. Doyle, 258 P.3d 553 (Utah 2011) (two-step inquiry: changed circumstances then de novo best-interest custody review)
- Jones v. Jones, 374 P.3d 45 (Utah Ct. App. 2016) (lesser showing required to modify parent-time than custody)
- Haslam v. Haslam, 657 P.2d 757 (Utah 1982) (nature of required change varies by modification sought)
- Zavala v. Zavala, 366 P.3d 422 (Utah Ct. App. 2016) (invited-error doctrine re: alleging change of circumstances)
- Blocker v. Blocker, 391 P.3d 1051 (Utah Ct. App. 2017) (standard of review for parent-time modification)
- PC Crane Serv., LLC v. McQueen Masonry, Inc., 273 P.3d 396 (Utah Ct. App. 2012) (appellate review of factual findings supporting sanctions)
- Elmer v. Elmer, 776 P.2d 599 (Utah 1989) (effect of stipulated custody decrees on changed-circumstances inquiry)