Erickson v. Erickson , 437 P.3d 370 ( 2018 )

2018 UT App 184THE UTAH COURT OF APPEALS
KIT RICHARD ERICKSON,
Appellant,
v.
SHANDI ERICKSON,
Appellee.
Opinion
No. 20170100-CA
Filed September 27, 2018
Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 104402189
Kit Richard Erickson, Appellant Pro Se
Marco C. Brown and Jonathan D. Hibshman,
Attorneys for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.
TOOMEY, Judge:
¶1 Kit Richard Erickson (Father) appeals from the district
court’s denial of his petition to modify the custody award of his
divorce decree from Shandi Erickson (Mother). He also disputes
the court’s decision to modify parent-time and the court’s award
of attorney fees. We affirm in part and reverse in part.
BACKGROUND
¶2 Father and Mother obtained a bifurcated divorce decree
in 2011. The parties stipulated to a divorce settlement regarding,
among other things, custody, support, and parent-time, and the
district court entered a supplemental decree of divorce in 2013.
Erickson v. Erickson
The parties’ four minor children were to reside primarily with
Mother, with Father awarded parent-time as outlined by statute.
¶3 In February 2015, Father petitioned the court to modify
the divorce decree, requesting a change in custody and child
support and alleging that Mother had a higher earning potential
and should be required to disclose it. Mother denied Father’s
allegations and later filed a counter-petition seeking to modify
parent-time and Father’s child-support obligation.
¶4 Discovery was prolonged. Father had difficulty providing
adequate responses to Mother’s discovery requests. He claimed
that some of the requested documents were not in his
“possession, custody, or control” and that Mother’s requests
were duplicative or irrelevant. The court held three pretrial
conferences discussing the deficiencies of Father’s discovery
responses and Mother’s counsel provided multiple clarifications
regarding what was requested. But thirteen months after
Mother’s first discovery requests were mailed to Father, she had
received only twenty-five percent of the requested discovery.
¶5 In October 2016, the court held a trial regarding discovery
sanctions, custody, child support, parent-time, medical
insurance and costs, and attorney fees.
¶6 The court’s findings of fact and conclusions of law
determined there was no substantial and material change in
circumstance that would warrant a change in custody. It
imputed an increase to both parties’ incomes and used the
imputed amounts to recalculate child support. The court also
adjusted the parties’ parent-time, allowing Mother to pick up the
children on Sunday nights. In addition, based on the parties’
stipulation, the court adjusted Father’s school-year parent-time
from Thursday nights through Sunday nights to Friday nights
through Sunday nights, with additional parent-time in the
summer to compensate for the lost overnights. Additionally, the
court determined that Father had acted in bad faith during the
20170100-CA 2 2018 UT App 184Erickson v. Erickson
litigation, including during the discovery process. The court
ordered Father to pay one half of Mother’s attorney fees incurred
for in attempt to get Father to comply with the discovery
requests. It further ordered Father to pay one half of Mother’s
attorney fees incurred during the litigation, not including the
payment of fees for the discovery violations. Father appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 Father raises six contentions of error on appeal. First, he
contends the district court erred by determining there had been
no substantial and material change in circumstance regarding
custody while also simultaneously modifying the parties’
parent-time. A court’s determination of whether there has been
“a substantial and material change in circumstances sufficient to
justify [a] custody modification” is reviewed for abuse of
discretion, Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888,
aff’d, 2011 UT 42, 258 P.3d 553, as is the court’s decision to
modify parent-time, Blocker v. Blocker, 2017 UT App 10, ¶ 8, 391
P.3d 1051.
¶8 Second, Father contends the court erred by allowing the
introduction of expert testimony at trial because it erroneously
determined that the 2011 amendments to rule 26 of the Utah
Rules of Civil Procedure “permitted [Mother] to introduce
expert testimony without any previous disclosure.” “We review
the [district] court’s interpretation of a rule of civil procedure for
correctness.” Solis v. Burningham Enters. Inc., 2015 UT App 11,
¶ 11, 342 P.3d 812. We review the district court’s decision
regarding the admissibility of testimony for an abuse of
discretion. Id.¶9 Third, Father contends the court erred in admitting
Mother’s trial exhibits, arguing that the exhibits “had not been
served upon [Father]” in violation of rules 5 and 26 of the Utah
Rules of Civil Procedure. “We review the [district] court’s
20170100-CA 3 2018 UT App 184Erickson v. Erickson
interpretation of a rule of civil procedure for correctness.” Solis,
2015 UT App 11, ¶ 11. “Generally, the [district] court is granted
broad latitude in handling discovery matters and we will not
find abuse of discretion absent an erroneous conclusion of law or
where there is no evidentiary basis for the [district] court’s
rulings.” Thurston v. Workers Comp. Fund, 2003 UT App 438, ¶ 11,
83 P.3d 391 (quotation simplified).
¶10 Fourth, Father contends the court erred by refusing to
hear testimony from the parties’ fourteen-year-old child (Child)
in violation of Utah Code section 30-3-10. The district court’s
interpretation of a statute “is a question of law that we review
for correctness.” Garcia v. Garcia, 2002 UT App 381, ¶ 4, 60 P.3d
1174 (quotation simplified). We review a district court’s decision
to admit or exclude evidence for an abuse of discretion. Olson v.
Olson, 2010 UT App 22, ¶ 10, 226 P.3d 751.
¶11 Fifth, Father contends the district court erred in awarding
attorney fees to Mother based on its finding that Father acted in
bad faith. “The grant of an attorney-fee award pursuant to the
bad-faith attorney-fee statute requires findings that the
underlying claims were meritless and pursued in bad faith.”
Robinson v. Robinson, 2016 UT App 33, ¶ 9, 368 P.3d 105 (citing
Utah Code Ann. § 78B-5-825 (LexisNexis 2012)). “Whether an
action or defense is meritless constitutes a legal conclusion that
we review for correctness. But the district court’s finding as to
bad faith is primarily factual, and we review the finding for clear
error.” Id. (quotation simplified). When reviewing the imposition
of sanctions under rules 37 and 26 of the Utah Rules of Civil
Procedure, we “first consider whether the district court has
made a factual finding that the party’s behavior merits
sanctions.” PC Crane Service, LLC v. McQueen Masonry, Inc., 2012
UT App 61, ¶ 7, 273 P.3d 396 (quotation simplified). “We will
uphold any such finding unless it is clearly erroneous.” Id.¶12 Sixth, Father contends the court erred by entering
findings of fact and conclusions of law that were not supported
20170100-CA 4 2018 UT App 184Erickson v. Erickson
by the record. A district court’s “factual findings are reviewed
deferentially under the clearly erroneous standard, and its
conclusions of law are reviewed for correctness with some
discretion given to the application of the legal standards to the
underlying factual findings.” Jones v. Jones, 2013 UT App 174,
¶ 46, 307 P.3d 598 (quotation simplified), aff’d, 2015 UT 84, 359
P.3d 603.
¶13 Finally, Mother requests an award of attorney fees
incurred in her defense of this appeal.
ANALYSIS
I. The Custody Determination
¶14 Father contends the district court erred in determining
there had not been a substantial and material change in
circumstances regarding the custody of the children. For a court
to modify an order of joint legal or physical custody, a party
must show that the circumstances of a child or parent have
materially and substantially changed since the entry of the order
to be modified and that “a modification of the terms and
conditions of the order would be an improvement for and in the
best interest of the child.” Utah Code Ann. § 30-3-10.4(2)(b)
(LexisNexis Supp. 2017) The court “first must decide whether
there are changed circumstances warranting the exercise of the
court’s continuing jurisdiction to reconsider the custody award.”
Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553 (quotation
simplified). “Only if circumstances have materially and
substantially changed may the court proceed to the second
step—a determination as to the manner in which custody should
be modified, if at all, based on a de novo review of the child’s
best interests.” Id. (quotation simplified).
¶15 Father’s primary contention is that the court erred by
changing the parties’ parent-time schedule when it determined
20170100-CA 5 2018 UT App 184Erickson v. Erickson
there was no substantial and material change in circumstances
regarding custody of the children. He argues that “a change in
the children’s school schedule” was a “material change in
circumstances,” which was evidenced by the court’s
modification of the parties’ parent-time. This modification, he
argues, is at odds with the court’s determination that “there
[had] been no substantial and material change in circumstance
that would warrant a change in custody.” We disagree.
¶16 “The change in circumstances required to justify a
modification of a divorce decree varies with the type of
modification sought.” Haslam v. Haslam, 657 P.2d 757, 758 (Utah
1982). Therefore, “a specific change in circumstances may justify
reconsideration of one provision of a divorce decree while not
justifying reconsideration of another provision.” Becker v. Becker,
694 P.2d 608, 611 (Utah 1984). A material change of
circumstances with respect to parent-time is thus “a different
inquiry from whether there was a material change with respect
to custody.” Jones v. Jones, 2016 UT App 94, ¶ 10, 374 P.3d 45.
When modifying parent-time, the petitioner is required to make
only “some showing of a change in circumstances,” which “does
not rise to the same level as the substantial and material showing
required when a district court alters custody.” Id. A court may
therefore determine that a change in circumstances warrants
modification of parent-time while simultaneously determining
there is no substantial and material change in circumstances to
justify a modification of custody. In other words, it is not
necessarily erroneous for a court to determine that a particular
change in circumstances is sufficient enough to warrant a change
in a parent-time schedule, but not significant enough to warrant
a modification of custody.
¶17 Here, the district court found that there was a change in
circumstances, allowing it to alter parent-time. “For two years
prior to trial,” Mother picked up the parties’ children on Sunday
nights because when their eldest child began junior high school
20170100-CA 6 2018 UT App 184Erickson v. Erickson
“it became unfeasible to pick up the children on Monday
mornings, and [Father] has always allowed the Sunday night
pick-ups.” The court also found that Father was “often late in
picking up [the] children on Fridays” and that there was “no set
pick-up time” for his Friday parent-time. The court therefore
concluded that the children “shall return to [Mother’s] home on
Sunday evenings at 8 p.m.” and that Father’s “midweek and
Friday pick-up times shall be at 6:30 p.m.” Finally, the court
explained that although Father’s weekend parent-time was
Thursday through Sunday, both parties agreed at trial that it
would be better for the weekend parent-time to be scheduled for
Friday to Sunday night during the school year, unless the
children did not have school on Friday, with additional time
given to Father in the summer to account for the overnights he
lost during the school year.
¶18 Father now contends that these changes amounted to a
material and substantial change in circumstances that warrants a
change in custody. But we are perplexed as to how a change in
the pick-up times without a change in the number of overnights
Father has as parent-time amounts to a substantial and material
change in circumstances. See Jones, 2016 UT App 94, ¶ 10
(explaining that “some showing of a change of circumstance” is
required to alter parent-time arrangements, but “that showing
does not rise to the same level as the substantial and material
showing required” to alter custody). Rather, the court took the
opportunity to provide set pick-up times—where before there
were none—and gave Father additional overnights in the
summer to be consistent with the number of days he would have
been able to exercise as parent-time if the school-year
parent-time schedule had not been changed due to the parties’
stipulation. Although there was “some showing of change in
circumstances” when the district court altered the parent-time
arrangement, the change did not rise to the same level as the
substantial and material showing required to alter custody. See
id.20170100-CA 7 2018 UT App 184Erickson v. Erickson
¶19 Next, Father argues the court was required to find a
substantial and material change in circumstances in regard to
custody because “[b]oth parties brought competing petitions to
modify, with both alleging material changes in circumstances.”
Citing Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422, Father
claims that because Mother argued in her counter-petition that
there had been a material change, she waived her right to deny
there had been one, and the court therefore abused its discretion
by reaching such a conclusion. See id. ¶ 20.
¶20 But Father misinterprets Zavala. In that case, the father
had alleged a material change in circumstances in his petition,
id., and the district court amended the parties’ divorce decree by
modifying the school-year custody schedule, id. ¶ 5. The father
appealed the court’s decision, arguing the court had not found a
material and substantial change of circumstances before it
modified the custody arrangement. Id. ¶ 6. This court held that
under the invited-error doctrine, the father waived any claim
that a material and substantial change of circumstances had not
occurred by alleging such a change in his petition. Id. ¶¶ 20–21.
Instead of requiring a court to find a material change if one is
alleged by both parties, Zavala prevents a party from arguing on
appeal that the court erred in finding a material change if that
party alleged such a change in that party’s pleadings. See id.
¶¶ 20–21, 25. Zavala also does not require that a court find a
material change in circumstances just because the parties alleged
it. We therefore find no traction in Father’s argument that the
district court’s determination is bound by the parties’ pleadings.
¶21 Finally, Father argues the district court applied the
“wrong legal standard” by not considering the fact that the
underlying custody award was based on a stipulated agreement.
He cites Elmer v. Elmer, 776 P.2d 599 (Utah 1989), for the
proposition that when custody decrees are not adjudicated, they
are “not based on an objective, impartial determination of the
best interests of the child,” and “the res judicata policy
20170100-CA 8 2018 UT App 184Erickson v. Erickson
underlying the changed-circumstances rule is at a particularly
low ebb.” Id. at 603. But Zavala clarified that Elmer “does not
permit the best-interest inquiry to swallow up the changed-
circumstances inquiry: ‘Even an overwhelming case for the best
interest of the child could not compensate for a lack of proof of a
change in circumstances.’” Zavala, 2016 UT App 6, ¶ 18 (quoting
Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553). Elmer thus
“respects the statutory framework” that “require[s] [a] finding of
a material and substantial change of circumstances.” Id. ¶¶ 16,
18. Here, the district court determined that “[i]n light of all
evidence received during trial” it was “clear” “there [had] been
no substantial and material change in circumstance that would
warrant a change in custody.” This is a determination we will
not overturn absent an abuse of discretion, Doyle v. Doyle, 2009
UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, which Father
has not demonstrated.1
II. The Admission of Expert Testimony
¶22 At trial, Mother called an expert witness, a certified public
accountant (the CPA), to testify concerning Father’s financial
situation. Father argues the district court erred in allowing the
expert to testify, because Mother did not disclose the expert
testimony to Father as required by rule 26(a)(4) of the Utah Rules
of Civil Procedure.
1. Father also faults the district court for not conducting “an
analysis of which parent would be the most suitable for primary
custody, while focusing on the best interests of the children.”
The best-interests analysis takes place only if the court has
determined “circumstances have materially and substantially
changed.” See Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553.
Because we have determined the court did not err in
determining there was no material and substantial change in
circumstance, we do not reach Father’s contention.
20170100-CA 9 2018 UT App 184Erickson v. Erickson
¶23 Rule 26(a)(4)(A) requires one party to serve on the other
party information regarding any person who is retained to
provide expert testimony or present evidence under rule 702 of
the Utah Rules of Evidence. Among other things, the party is
required to disclose the expert’s name, qualifications, and recent
publications, a summary of the opinions to which the expert will
testify, and all information the expert will rely upon in forming
those opinions. Utah R. Civ. P. 26(a)(4)(A). If a party fails to
make this disclosure under rule 26, “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.” RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 21,
392 P.3d 956 (quotation simplified).
¶24 We determine that Mother’s failure to meet the disclosure
requirements of rule 26 was harmless. Mother’s witness list
disclosed that she had procured the CPA as a witness
approximately three weeks before trial. She did not disclose the
required information regarding the expert witness, and she
acknowledged at trial her disclosures did “not comply with
[rule] 26.” At the outset of trial, when discussing Mother’s
failure to disclose the required information, the district court
asked Father if he “believe[d] this [was] going to unfairly
prejudice [him] in some way, shape or form” and if Father
would like a continuance so that he could “employ an
accountant or someone else on [his] behalf to take a look at
this.”2 Father stated that he did not want a continuance. The
court asked, “[I]f I intend to allow the expert to testify, do you
still want to proceed today or would you like a continuance?”
Father noted his objection, and the court stated it would allow
the expert to testify because it would not “be unfairly prejudicial
2. Father stated that he did not want a continuance, because that
would “only prejudice[] [him] in a different way.” But Father
did not explain in what way it would prejudice him.
20170100-CA 10 2018 UT App 184Erickson v. Erickson
to [Father].” The court reiterated that Father could have more
time to review and retain an equivalent expert, and Father
confirmed again that he preferred to proceed. The court noted
that Father had had access, “for an extensive period of time,” to
the same documents the expert had reviewed and determined
that allowing the expert testimony would not be unfairly
prejudicial to Father.
¶25 The district court therefore determined that Mother’s
failure to properly disclose the information under rule 26 was
harmless to Father. See id. We conclude that the court did not err
in determining that Mother’s failure to give proper notice under
rule 26 was harmless, because Father declined the repeated
offers to continue the trial to procure “an equivalent expert,”
which would have remedied any potential harm. As the court
noted, it “appreciates the assistance” of experts to testify to
financial documents for purposes of determining income, but
that it “see[s] these cases tried with and without” these experts
and is capable of doing so without one. Moreover, Father has not
demonstrated how the outcome of the proceeding would have
changed had Mother timely made her expert disclosures.3 He
merely states that this failure precluded him from reviewing “a
summary report” of the expert or requesting a deposition of the
3. Father argues that Mother’s failure to disclose is not harmless
because “Rule 26 would be eviscerated” if “[a]ny party could
show up to trial with an expert that had never before been
disclosed and then claim that the expert used the opposing
party’s records to prepare, and . . . be allowed to testify.” But
here, admitting the expert testimony would not “eviscerate” rule
26 in the way Father contends, because the district court
determined that Mother’s nondisclosure was harmless, and in
any event offered Father the option of a continuance to rectify
any claimed prejudice that might have occurred because of the
nondisclosure.
20170100-CA 11 2018 UT App 184Erickson v. Erickson
expert before trial without demonstrating that having that
additional information before trial would likely have affected its
outcome.
¶26 We conclude that Father has not shown that he was
prejudiced by Mother’s failure to disclose the CPA’s information
under rule 26(a)(4)(A), and therefore the district court did not err
in admitting the expert testimony after determining the failure
was harmless.
III. The Admission of Mother’s Trial Exhibits
¶27 Father contends the district court erred in admitting
Mother’s trial exhibits because she failed to deliver them to
Father by the court-set deadline.
¶28 Rule 26(a)(5) of the Utah Rules of Civil Procedure requires
one party to serve on the other a copy of each exhibit the party
may offer as evidence. Here, at the pretrial conference, the
district court ordered the parties to exchange proposed exhibits
by September 26, 2016. On the evening of September 26, 2016,
Mother’s counsel informed Father that he was having difficulty
“getting [his] Google Drive[4] [account] to properly send [Father]
the files” “containing the exhibits.” On September 27, 2016,
Mother’s counsel sent Father an email with a link granting access
to the Google Drive folder that contained all of Mother’s
exhibits. Counsel also sent an email to Father asking him to let
counsel know if Father was unable to access the files through the
link. Later that evening, counsel attempted to deliver a hard
4. Google Drive is a secured online storage account that
individuals may use to backup files and documents, which can
be shared with others with the permission of the owner of the
account. Counsel for Mother explained that he used Google
Drive because he could not send the documents as attachments
to an email due to their voluminous nature.
20170100-CA 12 2018 UT App 184Erickson v. Erickson
copy of the exhibits to Father’s residence, but no one answered
the door. The next morning, counsel attempted to deliver the
exhibits to Father’s workplace, but no one was at the business to
take the delivery. On October 3, Father filed a motion in limine
to exclude all of Mother’s trial exhibits, claiming that sharing
access to a Google Drive account was not an acceptable form of
service; that he had not consented to accept service by email; that
he was unable to access the documents through the email link;
and that he was prejudiced by not being able to access the
documents to review, evaluate, and prepare.
¶29 The district court addressed Father’s motion in limine on
the morning of trial. A member of Mother’s counsel’s firm
testified that she sent Father an email with a link to a Google
Drive file that contained the trial exhibits. She explained that
when someone, such as Father, who does not have a Google
account attempts to access the link to the Google Drive account
or file, she receives a request for permission for that person to
access the account or file. She testified that she never received
any notification that Father requested permission to view the
trial exhibits. Father presented evidence that he was unable to
access the files because when he attempted to do so he was
required to log in using a Google account, which he does not
have. The court pointed out that Father had not attempted to
contact Mother’s counsel regarding the difficulty of receiving the
exhibits. It denied Father’s motion, determining that Mother’s
efforts to deliver the exhibits were sufficient and stating that it
had “never seen someone sit back and rely on that as a means to
try to exclude what’s obviously the subject matter of the
litigation.”
¶30 On appeal, Father argues the court’s conclusion that
Mother’s efforts were sufficient conflicts with the Utah Rules of
Civil Procedure. Specifically, he claims that “[e]mailing a link to
a website does not satisfy any of the options available under
Rule 5 and in this case did not allow [Father] access to the
20170100-CA 13 2018 UT App 184Erickson v. Erickson
documents.” We agree with the district court that emailing a link
to a Google Drive folder that contained the exhibits was
sufficient to satisfy the service requirements of rule 5 of the Utah
Rules of Civil Procedure. Rule 5(b)(3) establishes that a paper is
properly served by “emailing it to the email address provided by
the person . . . if the person has agreed to accept service by email
or has an electronic filing account.”5 Utah R. Civ. P. 5(b)(3)(B).
We see no material difference between emailing a file as an
attachment and emailing a link to a Google Drive account that
contains the file.
¶31 Father testified he was unable to access the file and the
exhibits it contained. But there was also testimony that Father
did not attempt to access the file, and it is undisputed that Father
refused to accept the invitation from Mother’s counsel to assist
him if he was unable to retrieve the documents. Because the
exhibits were sent by email, rule 5(b)(3) was satisfied.
¶32 Father also contends the district court erred by admitting
Mother’s exhibits into evidence without any testimony as to their
authenticity as required by rule 901 of the Utah Rules of
5. Father claims emailing Mother’s exhibits was insufficient
because he neither consented to accept service by email nor does
he have an electronic filing account. See Utah R. Civ. P.
5(b)(3)(B). The Advisory Committee Notes to rule 5 state that the
rules “allow service by means other than U.S. Mail and hand
delivery if consented to in writing by the person to be served.”
Here, there is no evidence that Father explicitly consented in
writing to being served by email. But the court heard evidence
that Mother’s counsel had served Father numerous pleadings
and other documents by email and Father accepted such service
throughout the case. Father cannot now complain that he has not
consented to service by email for the sole purpose of excluding
Mother’s exhibits at trial.
20170100-CA 14 2018 UT App 184Erickson v. Erickson
Evidence. But this claim is unpreserved. “As a general rule,
claims not raised before the district court may not be raised on
appeal.” Bresee v. Barton, 2016 UT App 220, ¶ 34, 387 P.3d 536(quotation simplified). “An issue is preserved for appeal when it
has been presented to the district court in such a way that the
court has an opportunity to rule on it.” Id. (quotation simplified).
“The preservation rule applies to every claim . . . unless a litigant
demonstrates that exceptional circumstances exist or plain error
occurred.” Id. (quotation simplified).
¶33 Before the district court admitted Mother’s exhibits, it
acknowledged Father’s general objection as to the delivery of the
exhibits and asked if he had any other objections. Father replied
that he had not seen the documents, so he would not be able to
object to them. The court then admitted all of Mother’s exhibits
into evidence. Later during trial, Father was asked to identify
one of Mother’s exhibits, and Father objected on the ground that
the document lacked foundation. The court explained that the
evidence had already been admitted, that the document
“appears to have [Father’s] acknowledgement at the bottom of
the page,” and that additional information contained in that
document would be helpful to the court. Father then responded,
“Okay, yeah, I agree.”
¶34 Before trial, Father did not raise the issue of
authentication.6 And during trial, when he generally objected to
6. Father argues he could not have raised an objection before the
exhibits were admitted because he did not have access to them
before trial. As discussed above, the reason Father did not have
access to the exhibits was that he either did not attempt to access
them or declined Mother’s counsel’s offer to help access them.
See supra ¶¶ 30–31. Mother’s counsel served the exhibits on
Father, and he therefore cannot base his failure to object on the
claim that he did not have access to them.
20170100-CA 15 2018 UT App 184Erickson v. Erickson
the document for lack of foundation, he did not raise the specific
issue of authenticity, and he agreed with the court’s explanation
of why the information would be helpful to the court. See
Oseguera v. State, 2014 UT 31, ¶ 10, 332 P.3d 963 (explaining that
in determining whether the district court had an opportunity to
rule on an issue we consider whether an issue was specifically
raised in a timely fashion). Because this issue is not preserved
and Father does not argue an exception to the preservation rule,
we decline to address it.
IV. The Exclusion of Child’s Affidavit
¶35 Father contends the court erred by “refusing to consider
testimony from [Child].” Before and during trial, and through
various methods, Father attempted to admit evidence of Child’s
wishes as to custody, including an affidavit, Child’s school
assignment, and Mother’s testimony. See Utah Code Ann.
§ 30-3-10(1)(e) (LexisNexis Supp. 2017) (“The court may inquire
of a child and take into consideration the child’s desires
regarding future custody or parent-time schedules, but the
expressed desires are not controlling and the court may
determine the child’s custody or parent-time otherwise. The
desires of a child 14 years of age or older shall be given added
weight, but is not the single controlling factor.”). The court
rejected each of these attempts for various reasons. Assuming
without deciding that the district court erred by not considering
Child’s testimony regarding her wishes, excluding her testimony
did not prejudice Father’s case.
¶36 As outlined above, see supra ¶ 14 & n. 1, a court must
determine that a material and substantial change in
circumstances has occurred before engaging in an analysis
regarding the best interest of the child. See Doyle v. Doyle, 2011
UT 42, ¶ 24, 258 P.3d 553. Here, because the court determined no
material and substantial change of circumstances existed, the
court never conducted an analysis with respect to the best
interest of Child, and it was not required to do so. Child’s
20170100-CA 16 2018 UT App 184Erickson v. Erickson
testimony regarding her preferences had no effect on the court’s
determination that there was no material change in
circumstances but instead would only have helped the court
better understand the best interest of Child. Because there was
no harm in excluding Child’s testimony, we need not decide
whether the court erred by excluding it.
V. The Attorney-Fees Awards
¶37 The district court made two separate awards of attorney
fees to Mother. The first was for one half of Mother’s attorney
fees and costs incurred related to Father’s “bad faith in not
responding to [Mother’s] discovery requests.” The second
required Father to pay one half of Mother’s attorney fees for his
“general bad faith behavior” during the litigation process, not
including those already awarded for the discovery violations.
Though we conclude the court did not err in awarding the
discovery sanctions, we determine Father’s actions were not
wholly without merit and therefore reverse the district court’s
second award of attorney fees.
A. Discovery Sanctions
¶38 Under rule 37 of the Utah Rules of Civil Procedure, upon
a party’s motion, the court may sanction another party for failure
to comply with the court’s order regarding discovery. Utah R.
Civ. P. 37(b). These sanctions may include ordering “the party or
the attorney to pay the reasonable costs, expenses, and attorney
fees, caused by the failure [to follow the court’s order].” Id.R. 37(b)(5).
¶39 The court concluded that Father acted in bad faith during
discovery and that his “behavior went beyond any definition of
reasonableness and was purposefully calculated to obfuscate,
deceive, and thwart the efforts of [Mother] and the Court to
accurately determine his real income.”
20170100-CA 17 2018 UT App 184Erickson v. Erickson
¶40 The court found that during the discovery process,
Mother’s counsel “filed two Statements of Discovery Issues, a
Motion for Rule 37 Sanctions, and an additional Motion for
Sanctions regarding discovery.” The court held three pretrial
conferences that addressed the deficiencies in Father’s discovery
responses and ordered him to provide all the information and
documents Mother requested. After the pretrial conferences,
Mother provided “multiple clarifications” “regarding exactly
what was requested in discovery.” As a result of Father’s failure
to respond to the discovery requests, Mother had to send
multiple subpoenas to Father’s financial institutions to receive
the requested information. Specifically, the court found that
Father had testified “he had no Merrick Bank statements to
provide because there was no account activity.” But records that
Mother’s counsel subpoenaed “demonstrated activity and
statements during the period requested in [Mother’s] discovery.”
¶41 The court made substantial factual findings that Father’s
behavior warranted the sanctions imposed, and there is no
indication that any of its findings are erroneous.7 See PC Crane
7. Father contends there was no evidence supporting the court’s
finding that he “had ready access to the requested information
and documents through online banking and credit card
statements” and that “he could have easily contacted his
financial institutions and requested the information and
documents [Mother] requested in discovery.” Father claims he
provided “screen shots that showed exactly what was available
to him, and the statements that were shown to be available.” But
this does not discredit the court’s finding that in addition to the
online banking system, Father could have contacted his financial
institutions to provide the requested information. This is
especially true where the court found that Mother, through
subpoenas, was able to obtain the requested information from
Father’s financial institutions.
20170100-CA 18 2018 UT App 184Erickson v. Erickson
Service, LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 7, 273
P.3d 396 (explaining that this court upholds any factual finding
that a party’s behavior merits sanctions unless it is clearly
erroneous). Because there is ample evidence supporting the
court’s conclusion that Father acted in bad faith during the
discovery process, we will not disturb the court’s conclusion that
an award of attorney fees and costs under rule 37 was
warranted.
¶42 But the court did not support the amount of fees it
awarded Mother with sufficient findings of fact. Mother’s
attorney filed an affidavit supporting the amount of fees
incurred for discovery following the motion for sanctions. The
purported amount was $9,049. Mother’s attorney attached as an
exhibit the billing statements, which included all of the hours
billed, not just those related to Father’s failure to comply with
discovery. Although Mother’s attorney did not request all
attorney fees, it is unclear from the record that the requested fees
went to only the discovery violations and not to all discovery
conducted in preparation for trial. And while the court awarded
only half the amount Mother requested, the court did not
support its finding that Mother did incur $9,049—given that the
court was provided with the entire billing statement for the
proceedings—and it did not provide any reasoning for awarding
only half the requested amount. We therefore remand to the
district court to amend its findings to support the amount of fees
incurred related to the discovery violations and to provide its
reasoning for the amount it determines is appropriate.
B. Attorney Fees Awarded on the Basis of One Party’s Bad
Faith Conduct
¶43 Utah Code section 78B-5-825 provides that a district court
“shall award reasonable attorney fees to a prevailing party if the
court determines that the action or defense to the action was
20170100-CA 19 2018 UT App 184Erickson v. Erickson
without merit and not brought or asserted in good faith.” Utah
Code Ann. § 78B-5-825(1) (LexisNexis 2012).8 This section
requires a court to determine both that the action was without
merit and not brought in good faith.
¶44 The court found that the issues Father “brought before
this Court clearly did not rise to the level of a petition to change
custody” and it therefore concluded that Father’s action lacked
merit. Though we agree with the district court that many of the
issues Father raised would be more properly brought in a
petition for an order to show cause than in a petition to modify
custody, we do not agree that Father’s action was entirely
meritless.
¶45 Father’s petition to modify the divorce decree alleged
several “changes of circumstance” that Father believed merited a
change in the parties’ custody arrangement. The court correctly
determined that the evidence Father brought in support of this
contention did not justify a modification of custody. But Father
also alleged Mother had completed a bachelor’s degree since the
8. The court did not specify what authority it relied on in
awarding attorney fees to Mother. In an affidavit, Mother’s
counsel argued Mother was entitled to an award of attorney fees
under Utah Code section 78B-6-311, which allows the court to
order an award to a party who is injured or suffers a loss caused
by contempt. Utah Code Ann. § 78B-6-311(1) (LexisNexis Supp.
2017). But based on the district court’s findings, which stated
Father “generally acted in bad faith during this litigation because
(1) the items brought before this Court clearly did not rise to the
level of a petition to change custody, and (2) [Father] did
everything in his power to obfuscate and not provide the
financial documents [Mother] repeatedly requested,” we are
convinced the court relied on the bad-faith attorney-fee statute,
Utah Code section 78B-5-825.
20170100-CA 20 2018 UT App 184Erickson v. Erickson
settlement of the parties’ divorce, which was “a material and
substantial change in her ability to earn.” Father also alleged that
child support should be modified, albeit pursuant to the “new
custody arrangement” Father had proposed. The court’s findings
of fact imputed a higher income to Mother. The court also
concluded there had been “a substantial and material change
regarding child support because [Father’s] income has changed”
and it modified the parties’ child-support arrangement. Because
the court imputed a higher income to Mother and modified the
parties’ child-support obligation, Father’s petition was not
entirely meritless.
¶46 We therefore conclude the court’s award of attorney fees
under Utah Code section 78B-5-825 was in error and reverse the
court’s order in that respect.
VI. The District Court’s Findings of Fact and Conclusions of Law
¶47 Father contends the district court erred by entering
findings of fact that were not supported by the record.
¶48 First, Father claims the court’s findings of fact and
conclusions of law are in error because the court did not give
Father twenty days to submit an objection to Mother’s proposed
findings of fact and conclusions of law. The court originally
ordered both Father and Mother to submit proposed findings
and conclusions by November 30 and stated it would give them
twenty days to file any objection. Mother filed a motion to
extend the timeframe to prepare written findings, and the court
extended the deadline until December 7. Mother ultimately filed
the proposed findings on December 20. Father did not submit
any proposed findings. The court accepted Mother’s findings of
fact and conclusions of law and entered its order on January 5.
Father argues he should have been given until January 9 to
submit an objection to Mother’s proposed findings. But Father
did not preserve this issue for appeal, because he did not raise it
before the district court, and therefore the court did not have an
20170100-CA 21 2018 UT App 184Erickson v. Erickson
opportunity to address it. See Patterson v. Patterson, 2011 UT 68,
¶ 12, 266 P.3d 828. And Father has not argued that an exception
to the preservation rule applies that would allow us to reach the
merits of his contention of error. Id. ¶ 13.
¶49 Next, Father identifies findings of fact that he claims are
not adequately supported by the record. “We will not disturb a
[district] court’s findings of fact unless they are clearly
erroneous.” Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d
1262. “Findings are clearly erroneous only if they are in conflict
with the clear weight of the evidence, or if this court has a
definite and firm conviction that a mistake has been made.” Id.(quotation simplified). Father has not met his burden to show
that the court’s findings were clearly erroneous.
¶50 Father has failed to adequately brief this issue. He has
provided only scant record citations, see Utah R. App. P. 24(a)(8),
which would help us determine whether the findings were truly
in conflict with the clear weight of the evidence, and he has
failed “to identify and deal with supportive evidence,” see State
v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 645 (providing that “an
appellant who seeks to prevail in challenging the sufficiency of
the evidence to support a factual finding . . . should follow the
dictates of rule 24(a)([8]) [of the Utah Rules of Appellate
Procedure], as a party who fails to identify and deal with
supportive evidence will never persuade an appellate court to
reverse under the deferential standard of review that applies to
such issues”). For example, Father asserts that the court erred in
finding that he had “ready access to the requested [financial]
information and documents through online banking and credit
card statements” because, according to Father, he “provided
screen shots that showed exactly what was available to him.”
But Father has not addressed the court’s reasoning that he had
“ready access” to the requested information because of his
ability to “contact[] his financial institutions and request[] the
information and documents [Mother] requested in discovery.”
20170100-CA 22 2018 UT App 184Erickson v. Erickson
At trial, Father testified that he did not need to provide his
Merrick Bank statements, “because there was no activity with
[that] account.” But the court found that this was not true,
because Mother had subpoenaed those records and they
“demonstrated activity and statements during the period
requested in [Mother’s] discovery.” Father has failed to provide
any record cite that would refer us to the financial information
and documents that he did disclose to Mother, and he has failed
to explain why the court erred in determining he had “ready
access” to that information when Mother was able to obtain it
through subpoena. Father cannot allege that the court’s factual
findings are unsupported yet expect the appellate court to comb
through the record to find factual support for his arguments. The
burden of demonstrating that a finding is clearly erroneous
remains with Father, and he has not met that burden here.
VII. Attorney Fees on Appeal
¶51 Mother requests attorney fees on appeal, which this court
may award if the party who is awarded fees below is successful
on appeal. See Tobler v. Tobler, 2014 UT App 239, ¶ 48, 337 P.3d
296 (explaining “the general rule that a party who is awarded
fees below is entitled to an award of appellate fees after a
successful appeal”). Because we reverse the district court’s
award of attorney fees under the bad-faith statute to Mother,
Mother is not entitled to attorney fees on appeal.
CONCLUSION
¶52 We conclude the district court did not err in determining
there was no material and substantial change in circumstances
warranting a change in custody. The court also did not err in
allowing the admission of the expert testimony or Mother’s trial
exhibits. Though we do not decide whether the exclusion of
Child’s testimony was error, we determine its exclusion was not
prejudicial. As to attorney fees, we conclude the court correctly
20170100-CA 23 2018 UT App 184Erickson v. Erickson
awarded attorney fees regarding Father’s conduct during
discovery but failed to support the amount of the award with
sufficient findings of fact, and we therefore remand for the court
to support its determination. We further conclude the court
incorrectly awarded bad-faith attorney fees to Mother based on
its determination that Father’s action was without merit and
reverse its decision. Finally, we determine Father did not meet
his burden of persuasion that the court’s findings of fact were
unsupported.
20170100-CA 24 2018 UT App 184