Pope v. Pope, 392 P.3d 886

Background

Greg J. Pope (Father) and Carmen R. Pope (Mother) divorced after a three-day bench trial; they have two children and previously shared joint legal and physical custody.
District court awarded joint legal and physical custody, designated Mother as primary custodial parent, and ordered the children to attend school in Mother’s neighborhood.
Trial evidence included allegations of Father’s questionable online behavior, a past criminal episode in Maryland (with Father’s child present) leading to a felony conviction, and Father’s part-time night-shift employment while living in a basement apartment in his mother’s home.
Mother planned remarriage and her fiancé testified at the court’s request after remaining in the courtroom when the witness-exclusion rule was invoked.
Father moved to amend/enter new judgment challenging findings on moral character/emotional stability, personal vs. surrogate care, financial condition, the school change, and admission of the fiancé’s testimony; the district court denied the motion.
The Court of Appeals reviewed the factual findings for clear error and the court’s evidentiary discretion for abuse of discretion, and affirmed the district court’s custody and school decisions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether moral character/emotional stability favored Mother	Father: findings inconsistent and erroneous — court found Mother credible but insufficient evidence of criminality, yet questioned Father’s veracity	Mother/District Ct: credibility findings supported; concern centered on Father’s past criminal episode with child present	Held: No clear error; court reasonably credited Mother on some facts, declined to find criminality, but relied on Father’s Maryland criminal episode to favor Mother
Which parent can provide personal (vs surrogate) care	Father: current part-time/night schedule allows him to provide care; children not unattended	Mother/District Ct: Father’s night job and basement living are unsustainable; grandmother’s presence not equivalent to dedicated caregiver long-term	Held: Short-term favors Father (availability); long-term neutral — court’s skepticism re: overnight care and sustainability not clearly erroneous
Financial condition and consideration of third-party contributions	Father: district court improperly considered Mother’s fiancé’s income but not grandmother’s contribution to Father	Mother/District Ct: fiancé planned long-term financial contribution; grandmother provided subsidized housing but no evidence of long-term support for children	Held: Court properly considered fiancé’s expected contributions and did not err in excluding grandmother’s income absent evidence of long-term support
Whether children should change schools	Father: changing schools is traumatic; children doing well and diverse at current school	Mother/District Ct: Mother’s neighborhood school had significantly higher academic rankings and test scores	Held: Court acted within discretion to order change given substantial disparities in school performance and lack of evidence of specific emotional harm
Admissibility of Mother’s fiancé’s testimony after witness-exclusion rule	Father: prejudice from fiancé remaining in courtroom; testimony should have been excluded	Mother/District Ct: fiancé was on witness list and court called him; no showing fiancé altered testimony from hearing others	Held: No abuse of discretion; Father failed to show prejudice or that testimony was contaminated

Key Cases Cited

Robertson v. Robertson, 370 P.3d 569 (Utah Ct. App. 2016) (standard for disturbing trial court factual findings)
State v. Gibson, 366 P.3d 876 (Utah Ct. App. 2016) (trial court discretion in witness-exclusion violations)
State v. Carlson, 635 P.2d 72 (Utah 1981) (onus on objecting party to show prejudice from witness-exclusion violation)
Valcarce v. Fitzgerald, 961 P.2d 305 (Utah 1998) (deference to trial court credibility determinations)
In re B.R., 171 P.3d 435 (Utah 2007) (appellate limitation on reweighing evidence when foundation exists)
State v. Guard, 371 P.3d 1 (Utah 2015) (issues must be supported by evidence and legal authority)