Erickson v. Erickson

2018 UT App 184

THE 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

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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

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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

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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

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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

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“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.

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¶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

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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.

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¶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.

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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.

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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.

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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

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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.

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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.

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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

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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.”

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¶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.

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Erickson 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

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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.

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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

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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.”

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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

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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.

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