author: Justice Himonas, opinion of the Court:

text:
    Robert PILOT, Petitioner v. Earl N. HILL, Respondent
    No. 20180523
    Supreme Court of Utah.
    Filed March 1, 2019
    Karra J. Porter, Kristen C. Kiburtz, Salt Lake City, Edward T. Wells, Murray, for petitioner
    Kristin A. VanOrman, Jessica J. Johnston, S. Spencer Brown, Salt Lake City, for respondent
    Justice Himonas authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Justice Petersen joined.
    On Certiorari to the Utah Court of Appeals
   Justice Himonas, opinion of the Court:

INTRODUCTION

¶1 "Speak what you think now in hard words, and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day." Ralph Waldo Emerson, Self-Reliance , ESSAYS: FIRST SERIES (1841), https://emersoncentral.com/texts/essays-first-series/self-reliance/ (last visited Feb. 15, 2019). Embracing this contrary spirit, the petitioner in this case, Robert Pilot, applies this attitude to the Utah Rules of Civil Procedure. In 2011, these rules were amended in large part to facilitate access to justice and promote proportionality in costs and procedures in civil litigation. The three-tier structure established by Utah Rule of Civil Procedure 26 requires plaintiffs to plead one of three tiers based on expected damages. In turn, this tier designation commensurably restrains discovery schedules, document production, and general costs associated with civil litigation. Because Pilot pled a Tier 2 case-which involves, among other things, a limit on recoverable damages-and never amended his pleading before trial, he now asks this court to allow a post-trial amendment of his tier designation so that he can receive more damages. The district court and court of appeals both rejected Pilot's motion for post-trial amendment of his tier designation. Because the facts of this case, the relevant law, and the rules of the tier structure-rules Pilot understood and followed before pragmatism forced an alternative understanding after trial-all dispositively oppose Pilot's preferred outcome, we affirm.

BACKGROUND

¶2 In 2011, Utah adopted several amendments to its rules of civil procedure with the intention of addressing the ever-increasing cost of litigation and its effect on litigants. High discovery costs and the expenses of a lengthy trial exert a ripple effect that can dissuade potential litigants from even bringing their cases. The prohibitive resources needed to try a case function as a limitation on access to justice for plaintiffs and defendants alike. In response to this problem, the Utah Supreme Court's Advisory Committee on the Rules of Civil Procedure recommended sweeping changes to the rules, which were put into place via the 2011 amendments.

¶3 Utah Rule of Civil Procedure 26(c) separates cases into three tiers. These tiers are delineated by the amount of damages claimed by the plaintiff. Each tier provides proportional caps on the allowed amount of deposition hours, interrogatories, requests for document production and admission, and days allotted to complete standard fact discovery. A Tier 1 case seeks damages not to exceed $50,000 and each party is limited to three hours of deposition, five requests for production, and five requests for admission. UTAH R. CIV. P. 26(c)(5). By contrast, a Tier 3 case seeks damages of $300,000 or more and allows 30 hours of deposition, 20 interrogatories, 20 requests for production, and 20 requests for admission. Id . Under rule 8, "[a] pleading that qualifies for tier 1 or tier 2 discovery constitutes a waiver of any right to recover damages above the tier limits specified in Rule 26(c)(3), unless the pleading is amended under Rule 15." Id. 8(a). In turn, rule 15 provides the framework for the amendment of pleadings before, during, and after trial. This appeal pertains exclusively to Pilot's attempt to amend his tier designation under rule 15(b)(1) on the theory that Earl N. Hill impliedly consented to such an amendment.

¶4 The original action here involved a civil suit by Pilot against Hill for recovery of damages relating to an automobile accident. Pilot pled a Tier 2 case indicating a range of damages more than $50,000 but less than $300,000. There is no evidence presented to show or reason to believe that both parties did not adhere to the corresponding Tier 2 rules of discovery, deposition, production, and admission commensurate with the Tier 2 designation before trial.

¶5 During discovery and at trial, Pilot presented evidence that he had suffered damages well over and above the $300,000 damage limit imposed by the Tier 2 designation. This prompted the district court to ask the attorneys at a pre-trial conference how to reconcile the claimed damages in excess of $300,000 with Tier 2's recovery cap of $300,000. The district court asked both parties "if [the jury] come[s] up with a verdict of $300,000 or more, it gets reduced?" Hill's counsel responded, "Right." And Pilot's counsel said, "Yeah. And then we deal with that after trial," which, at a minimum, seemingly confirmed the district court's and opposing counsel's understanding.

¶6 At trial, Pilot put on evidence suggesting that he had suffered more than $300,000 in damages. Pilot's expert economist testified that Pilot's lost earning capacity was between $625,000 and $634,000. Additionally, Pilot presented lengthy testimony and evidence regarding severe noneconomic damages resulting from his pain and suffering. Hill in turn presented two of his own expert witnesses to testify against the figures presented by Pilot and to attest to Pilot's ability to return to work. Additionally, Hill's attorney contested Pilot's claims for damages by vigorously cross-examining Pilot's witnesses. The jury awarded Pilot $19,484 in economic damages and $621,505 in noneconomic damages for a total of $640,989 in damages.

¶7 After trial and after the jury verdict, Pilot filed a motion to amend his pleadings under Utah Rule of Civil Procedure 15(b). He contended that the issue of damages exceeding those capped by the Tier 2 structure was tried by implied consent of both parties under rule 15(b)(1) and that, regardless of consent, the pleadings should be amended under 15(b)(2). The district court found that the undisputed facts did not constitute implied consent for the purposes of rule 15(b)(1) and that rule 15(b)(2) did not apply. The district court reduced Pilot's judgment to $299,999.99, commensurate with the limits of his Tier 2 designation. Pilot appealed, arguing that under rule 15(b)(1) he was entitled to amend his tier designation post-trial. The court of appeals affirmed the district court, stating that rule 15(b)(1) only applies to unpleaded issues, and that the issue of which tier this case falls into was pled when Pilot designated this as a Tier 2 case. Pilot appeals. We affirm the court of appeals.

¶8 We exercise certiorari jurisdiction under Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶9 When exercising certiorari jurisdiction, "we review the decision of the court of appeals, not that of the district court." Judge v. Saltz Plastic Surgery, P.C. , 2016 UT 7, ¶ 11, 367 P.3d 1006 (citation omitted) (internal quotation marks omitted). In the process, we consider whether the court of appeals applied the correct standard. In this respect, the trial court's interpretation of rule 15(b) should be reviewed for correctness, but, "because the trial court's determination of whether the issues were tried with all parties' 'implied consent' is highly fact intensive, we grant the trial court a fairly broad measure of discretion in making that determination under a given set of facts." Keller v. Southwood N. Med. Pavilion, Inc. , 959 P.2d 102, 105 (Utah 1998). Thus, in the context of this action, we review whether Pilot can amend his tier designation under rule 15(b) post-trial, infra ¶¶ 12-15, a pure question of law, for correctness. On the other hand, the question of whether Hill impliedly consented to an unpleaded tier 3 case, infra ¶¶ 16-23, is a fact-intensive mixed question of law and fact entitling the trial court's decision to broad deference.

ANALYSIS

¶10 Pilot, after first following the orderly structure prescribed by rule 26 of the Utah Rules of Civil Procedure, now seeks to use rule 15(b)(1) to circumvent the tier structure established by rule 26. After filing a Tier 2 case, and binding both parties to the corresponding rules of trial strategy, cost, and discovery mandated by rule 26, Pilot seeks to ignore the damage limitation also mandated by the tier structure. He asks this court to hobble Hill with a limited Tier 2 defense, while also imposing the maximum stakes of a Tier 3 outcome. Rule 15(b) does no such thing.

¶11 Additionally, the facts of this case clearly show that, even if Pilot's creative understanding of the language of 15(b)(1) and "implied consent" permitted such a modification of the tier structure at trial, there was no such consent here. Both parties adhered faithfully to the Tier 2 designation, the trial court and court of appeals diligently applied the standards agreed upon by the parties, and we in turn shall maintain the integrity of the tier system and its mandates. We affirm the court of appeals.

I. PILOT CANNOT MODIFY HIS TIER DESIGNATION POST-TRIAL UNDER RULE 15

¶12 Rule 8(a) of the Utah Rules of Civil Procedure requires claimants to plead that their "damages are such as to qualify for a specified tier defined by Rule 26(c)(3)." Once a claim is designated as Tier 1, 2, or 3, the guidelines and limitations imposed by rule 26(c)(5) dictate how the case will be litigated by both parties to the action. As stated before, this is meant to streamline the process and enables both parties to understand the stakes of the action so that they may plan their litigation strategies and cost outlays accordingly. Additionally, this system functions to allow less valuable claims, as well as defenses-which may otherwise be bludgeoned away from the courts by prohibitive litigation costs-to be asserted. The structure is designed to match the potential outcomes of a case with a temporally and financially proportional litigation process. Rule 8(a) also allows parties to amend their tier designation under rule 15.

¶13 This case is about Pilot's impermissible weaponization of this process. Rule 15(a) prescribes procedures for the amendment of pleadings before trial. In the context of the tier structure, this makes intuitive sense; if evidence is uncovered during discovery that indicates that the damages in question may be less than or greater than those defined by the initial tier designation, a party may strategically decide that a tier designation amendment is appropriate. This is a tactical decision because the tier structure limits and guides both parties. The tier chosen sets the rules of the game and puts both parties on notice about what is at stake and therefore how to proceed as adversaries. Such an amendment would not merely alter the amount of damages available, but would also change the core nature of the proceeding and the avenues possible for defense; different tiers bring with them different limitations on deposition hours, interrogatories, requests for production and admission, and days allotted for standard fact discovery. But because Pilot never amended his pleadings before the trial, he cannot make use of rule 15(a).

¶14 Rule 15(b)(1) also cannot apply here because the "issue" of which tier would govern this action was raised in the pleadings. Pilot v. Hill , 2018 UT App 105, ¶ 12, 427 P.3d 508. Rule 15(b)(1) states:

"When an issue not raised in the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move-at any time, even after judgment-to amend the pleadings to conform them to the evidence and to raise an unpleaded issue ."

UTAH R. CIV. P. 15(b)(1) (emphases added).

¶15 But the tier designation was not an unpleaded issue. For the purposes of rule 15(b)(1) 's language regarding issues not raised in the pleadings, the tier structure operates as an umbrella issue that governs the amount of damages and discovery. As the court of appeals correctly noted, the pleading of one tier-as is required by rule 26-includes within it an express disclaimer of the two unchosen tiers. By pleading to proceed under Tier 2, Pilot was therefore necessarily pleading that he was not proceeding under Tier 1 or Tier 3. The tier designation is itself an issue, and that issue was already pled, consented to, and handled at trial to the express exclusion of the other unpleaded tiers.

¶16 In sum, Pilot cannot amend his complaint to a Tier 3 pleading under any subsection of rule 15. Rule 15(a) only applies in the pre-trial context, and the tier designation cannot be modified once trial begins, ruling out an amendment under rule 15(b). For this reason, we affirm the court of appeals.

II. HILL DID NOT CONSENT TO AN UNPLEADED TIER 3 CASE

¶17 It is obvious to us that the best reading of rule 8(a) 's reference to rule 15 is that tier designation issues may only be modified through rule 15(a) ; once trial has commenced, a rule 15(b) modification is not possible. However, because this case presents an issue of first impression, we also address Pilot's implied consent-based argument. Because the tier designation governs the underlying trial, Pilot's attempt to make an argument grounded in the "express or implied consent" language of rule 15(b)(1) fails. He claims that Hill consented to a Tier 3 designation by not objecting to Pilot's evidence of damages exceeding those allowed in a Tier 2 case. Pilot would have us interpret the decision not to object to any evidence of damages exceeding $300,000 as a defendant's consent to a higher tier. This is wholly unpersuasive.

¶18 Pilot's complaint clearly stated "[t]his is a Tier II case." At no time prior to or during trial did he attempt to amend this complaint. In fact, when the trial court raised the issue at a pre-trial conference, Hill's counsel explicitly stated her belief that any damages awarded above $300,000 would be reduced. And Pilot's counsel not only failed to dispel the notion that damages would be reduced, he seemingly confirmed it, noting, "[y]eah, and then we deal with that after trial." Accordingly, everything that happened after the pre-trial conference would have been viewed by Hill through the lens of a party that thought any damages in excess of $300,000 would be reduced. In other words, at all times during the trial Hill was operating under the assumption that this was a Tier 2 case. Based on these pre-trial discussions, Hill had no reason to believe that any actions taken during trial would imply consent to trying a Tier 3 case.

¶19 Pilot asks us to find consent because Hill proceeded to litigate the case even after Pilot submitted damages in excess of $300,000. Pilot's economist submitted a report estimating Pilot's total damages at $950,000-$990,000 and his future wage loss at $625,000-$634,000. Pilot's claim rests on the erroneous belief that this figure, provided by his own expert, constituted sufficient notice to Hill that the stakes exceeded those of a Tier 2 designation, and that Hill's proceeding to litigate the case constituted consent to a modified tier. But this argument proves too much.

¶20 First, because of the pre-trial discussions, Hill had no reason to object to the presentation of excess damages at trial. Hill was merely operating under the assumption that any excess damages awarded would be reduced after trial.

¶21 Second, although the tier structure is guided by damages, limited damages are not the only consequence of a Tier 2 designation. Pilot asks us to infer consent to a higher tier based on the damages estimates of Pilot's own witnesses. This ignores the fact that a tier designation sets other rules, such as how much discovery can be conducted. And even if Hill was not operating under the assumption that damages would be reduced post-trial, neither party violated the mandates of the Tier 2 rules in any way that would imply consent to a different tier. Pilot's own brief illustrates the fact that Hill litigated a Tier 2 case bound by Tier 2 restrictions:

During discovery, Mr. Hill used less than half the amount of discovery that Tier II afforded him. Mr. Hill could have conducted 15 hours of depositions; instead, he only used a total of 3 hours and 23 minutes. Mr. Hill could have propounded 10 requests for admission; instead, he did not propound any. Mr. Hill did not make any request for additional fact discovery. Mr. Hill hired two experts who both testified that Mr. Pilot did not suffer any lasting injuries and had no wage claim. Mr. Hill's counsel represented to the trial court, she would have no difficulty confronting Mr. Pilot's extensive damage claims.

¶22 Hill's closing argument stated that, by asking for so much in damages, Pilot indicated that he was not credible and that he did not suffer any lasting injury in this case. Hill designated no economist, biomechanical expert, or accident reconstructionist-experts commonly retained in high-value injury cases. Where then is Hill's implied consent to modify the tier designation? It does not exist.

¶23 There is simply no evidence to infer consent in this case. "Implied consent to try an issue 'may be found where one party raises an issue material to the other party's case or where evidence is introduced without objection, where it appear[s] that the parties understood the evidence [is] to be aimed at the unpleaded issue .' " Hill v. Estate of Allred , 2009 UT 28, ¶ 48, 216 P.3d 929 (alterations in original) (emphasis added) (citation omitted). A plaintiff's expert witness testifying to high damages is not the introduction of new evidence. And it does not introduce a new issue. Hill's behavior with regard to the myriad other limitations of Tier 2 make this clear. Hill did not respond to Pilot's expert witness testimony in a way commensurate with any understanding of a tier designation modification. He did not exceed his allowed discovery, depositions, interrogatories, admissions, or increase his cost outlays. He contested the claim for damages through cross-examination and closing statements. All evidence indicates that the Tier 2 structure was preserved and adhered to by both parties.

¶24 Additionally, Rule 26 provides a method by which both parties could expressly consent to discovery procedures over and above those prescribed by the tier system. Rule 26(c)(6) states:

"To obtain discovery beyond the limits established in paragraph (c)(5), a party shall file:
(c)(6)(A) ... a stipulated statement that extraordinary discovery is necessary and proportional under paragraph (b)(2) and that each party has reviewed and approved a discovery budget; or
(c)(6)(B) before the close of standard discovery and after reaching the limits of standard discovery imposed by these rules, a request for extraordinary discovery under Rule 37(a).

UTAH R. CIV. P. 26(c)(6). Obviously, Pilot does not make the claim that any such stipulations or requests were made here. There was no modification of the pled tier made through either implied or express consent of the parties.

CONCLUSION

¶25 The tier structure established by Rule 26 of the Utah Rules of Civil Procedure exists so that parties may understand the stakes underlying a civil litigation and plan their strategies and expenditures accordingly. Pilot pled and litigated a Tier 2 case in which he was awarded damages in excess of what he was permitted to receive in his designated tier structure. In keeping with the rules he chose and consented to by pleading his case as a Tier 2 case, his damages were commensurately reduced after trial. There is no permitted modification of the tier designation once trial commences and no indication that Hill impliedly consented to litigating a higher tier case even if he could. He could not. He did not. We affirm the court of appeals.

      "Actions claiming $50,000 or less in damages are permitted standard discovery as described for Tier 1. Actions claiming more than $50,000 and less than $300,000 in damages are permitted standard discovery as described for Tier 2. Actions claiming $300,000 or more in damages are permitted standard discovery as described for Tier 3. Absent an accompanying damage claim for more than $300,000, actions claiming non-monetary relief are permitted standard discovery as described for Tier 2." Utah R. Civ. P. 26(c)(3).

      Rule 15(b) states in part:
      (b)(1) When an issue not raised in the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move-at any time, even after judgment-to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.
      (b)(2) If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended.

      Although we attach no decisional weight to advisory committee notes, the commentary to rule 8 seems to anticipate this case: "It would be unfair for a party to plead a smaller amount of damages in order to take advantage of the streamlined discovery and then seek to recover greater damages. Thus, Rule 8 provides that a party waives its right to recover damages in excess of the maximums provided for that tier unless the pleading is amended." Utah R. Civ. P. 8, advisory committee notes.

      Utah Rule of Civil Procedure 26(c)(5) contains this handy chart:
      Tier Amount of Total Fact Rule 33 Rule 34 Rule 36 Days to Damages Deposition Interrogatories Requests for Requests for Complete Hours including all Production Admission Standard Fact discrete subparts Discovery 1 $50,000 or less 3 0 5 5 120 2 More than $50,000 15 10 10 10 180 and less than $300,000 or non-monetary relief 3 $300,000 or more 30 20 20 20 210

      "A pleading that qualifies for tier 1 or tier 2 discovery constitutes a waiver of any right to recover damages above the tier limits specified in Rule 26(c)(3), unless the pleading is amended under Rule 15." Utah R. Civ. P. 8(a).

      Because of this structure it is impossible to plead tiers in the alternative. This same logic does not apply to inconsistent causes of action. See Helf v. Chevron USA, Inc. , 2015 UT 81, ¶ 74, 361 P.3d 63 ("Utah's modern pleading rules permit litigants to plead inconsistent theories of recovery in the alternative."). Consequently, and by way of example, in pleading a claim for strict liability, a party is not precluded from pleading a claim sounding in negligence.

      Pilot attempts to separate each tier into its own issue. In Pilot's view, to plead Tier 2 says nothing with respect to Tier 1 and Tier 3. This fundamentally misunderstands rule 26. If in the course of evidence production and discovery plaintiffs realize that their claim is worth more or less than the tier they initially pled, rule 8(a) permits them to amend their pleadings to reflect the appropriate tier. The choice of which tier is appropriate may be modified before trial under rule 15-rule 15(a) to be precise. But once the trial begins, the tier issue has been settled. By that point, the parties have already finished conducting discovery and the stage is set for trial. The tier system has done its job. For the purposes of rule 15(b)(1), every tier-related issue has been raised. By selecting a tier the plaintiff has rejected the other two-raising and dismissing them-leaving the matter beyond amendment under rule 15(b)(1). The issue of tier designation may not be modified as if the other tiers had never been addressed.

      Although Pilot does not make an explicit appeal to rule 15(b)(2), this part of rule 15 is also of no avail to his case. Rule 15(b)(2) allows that at trial a party may "object[ ] that evidence is not within the issues raised in the pleadings, [and] the court may permit the pleadings to be amended." Here we assume our deferential posture with regard to the district court's fact-intensive inquiry. We are satisfied that the evidence related to damages presented at trial was relevant to the tier chosen in the pleadings. Pilot's evidence of damages in excess of $300,000 could be used in a Tier 3 case, but this does not mean the evidence was "not within the [Tier 2] issues raised in the pleadings." See Utah R. Civ. P. 15(b)(2). Additionally, neither party objected to the damages introduced at trial as being beyond the scope of the Tier 2 pleadings.

      The import of this conclusion is that rule 8 's reference to rule 15 only refers to rule 15(a) in the context of implied tier designation modifications. Because a tier designation modification by implied consent is impossible both during and after trial, rule 8 's reference to rule 15 is necessarily cabined to rule 15(a) in this context. Moreover, we do not believe this outcome will chill the designation of lower tiers in the pursuit of expedited justice for plaintiffs. The award of damages in excess of those permitted by a specific tier does not necessarily reflect what would have happened had the parties agreed on a higher tier with the accompanying increase in general costs and options for the defense. Counsel's choice of a lower tier and the accompanying limited procedures and time may often be an easily defensible strategic decision. The legitimacy of a lawyer's decision rests on his or her rationale and the client's choices.

      In fact, during the hearing on Pilot's motion to amend, his counsel admitted that the decision not to amend the tier pre-trial was "a strategic decision by the lawyers."

      The fact that Hill brought a motion for a directed verdict regarding future lost wages does not imply consent to a higher tier. Hill's motion claimed that Pilot had not carried his burden to show that he deserved "the over $600,000 in damages" that his economist reported. Use of this higher figure in this motion pertained to Hill's assertion that Pilot had not upheld his burden of proof, not any desire by Hill to consent to a different tier.

      It is not atypical for a plaintiff to overstate the damages they seek out of an expectation that the jury will try to split the baby and award the plaintiff damages that fall somewhere between the parties' estimates. Evidence of damages above those allowed by a tier designation does not indicate an abandonment of the tier structure. It is merely trial strategy.


source: Caselaw Access Project

author: TOOMEY, Judge:

license: Public Domain

text:
    Kit Richard ERICKSON, Appellant, v. Shandi ERICKSON, Appellee.
    No. 20170100-CA
    Court of Appeals of Utah.
    Filed September 27, 2018
    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.
    Opinion
   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. 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 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 interpretation of a rule of civil procedure for correctness." Solis , 2015 UT App 11, ¶ 11, 342 P.3d 812. "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 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 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 "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, 374 P.3d 45 (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.

¶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 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, 366 P.3d 422 (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, 258 P.3d 553, which Father has not demonstrated.

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.

¶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." 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 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. He merely states that this failure precluded him from reviewing "a summary report" of the expert or requesting a deposition of the 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 [ ][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 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 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." 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 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. And during trial, when he generally objected to 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 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."

¶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. See PC Crane 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 without merit and not brought or asserted in good faith." Utah Code Ann. § 78B-5-825(1) (LexisNexis 2012). 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 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 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." 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 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.

      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.

      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.

      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.

      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.

      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.

      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.

      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.

      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.


text:
    STATE of Utah, Appellee, v. Tyler W. CASPER, Appellant.
    No. 20170428-CA
    Court of Appeals of Utah.
    Filed September 27, 2018
    Emily Adams, Attorney for Appellant
    Sean D. Reyes and Karen A. Klucznik, Salt Lake City, Attorneys for Appellee
    Judge Kate A. Toomey authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.
    Opinion
   TOOMEY, Judge:

¶1 Tyler W. Casper pleaded guilty to two counts of first-degree aggravated sexual abuse of a child. In exchange, the State agreed to dismiss Casper's remaining charges and recommend that he serve six years to life for each count to run consecutively rather than the maximum sentence of fifteen years to life. The district court reduced Casper's sentence to ten years to life, noting that his mental-health status warranted a reduction, but that the aggravating circumstances precluded the court from reducing it further. The court also ordered both sentences to be served consecutively. Casper appeals his sentences, contending his defense counsel was ineffective in failing to argue that the court should have considered the proportionality requirement articulated by our supreme court in LeBeau v. State , 2014 UT 39, 337 P.3d 254. Because we conclude there was a reasonable tactical basis for counsel not to direct the court to consider LeBeau 's proportionality requirement, counsel did not perform deficiently. Accordingly, we affirm.

¶2 Casper was charged with three counts of first-degree aggravated sexual abuse of a child for acts he perpetrated against a seven-year-old victim (First Victim). When the police interviewed him, Casper admitted that he had sexually abused First Victim. The State later charged Casper with another count of first-degree aggravated sexual abuse of a child for acts perpetrated against an eight-year-old victim (Second Victim). The victims each reported that Casper threatened to hurt them if they told anyone what he had done.

¶3 While the cases were being investigated, Casper threatened to kill anyone who tried to help the victims' families with the case. He said he would "put their heads down on a table[ ] and snap their heads off." After Casper underwent a competency evaluation, the evaluators determined that he was competent to stand trial despite exhibiting the following conditions: mild autism or Asperger's syndrome, anxiety, depression, attention deficit hyperactivity disorder, and impulse control disorder.

¶4 Casper agreed to plead guilty to two counts of aggravated sexual abuse of a child, one for each victim. In exchange, the State agreed to dismiss the two remaining charges and recommend a sentence of two consecutive terms of six years to life in prison, rather than the presumptive fifteen years to life. See Utah Code Ann. § 76-5-404.1(5) (LexisNexis 2017).

¶5 Adult Probation and Parole prepared a presentence investigation report (the PSI Report). The PSI Report contained a statement from Casper that "explained his version of what happened." He said that First Victim attempted to seduce him and that he "lost [his] ability to gain control of [the] situation," while at the same time expressing remorse for First Victim. Casper did not express any remorse for the acts he perpetrated against Second Victim. Casper also acknowledged that he was aware of "the cyclical patterns of this crime."

¶6 In other reports filed with the court, Casper admitted that he had previously put his hand down a female neighbor's pants and touched her "private parts." He also acknowledged that he has impulse control disorder, which one of the evaluators explained is "characterized by the repeated inability to refrain from performing a particular action that is harmful to oneself or others." One of his mental health providers said that Casper "has a history of being violent, aggressive[,] and having explosive behaviors." He also tested high on the sexual addiction scale and, at the time of the evaluation, continued to "experience[ ] excessive thinking about sexual behavior, [have] opportunities to view pornography, and entertain[ ] sexual fantasies."

¶7 At the sentencing hearing, the court was provided with the PSI Report and letters from the victims' family members, Casper, Casper's family members, and one of Casper's therapists. The court also heard statements from the victims' parents about the impact of Casper's conduct on the victims. Casper's mother spoke on behalf of her son, and Casper spoke on his own behalf. Casper explained that he had a difficult childhood and was often "teased." He then expressed remorse for his conduct and explained that he had recently become more spiritual.

¶8 "[A]fter carefully reviewing" all of the information provided to the court relevant to sentencing, the court concluded that, "in the interest of justice," it would reduce Casper's sentence to ten years to life on both counts to run consecutively with each other. The court explained that the sentence could be reduced from the presumptive fifteen years to life because of Casper's mental-health status, but that the court could not reduce it to the six years to life that the State and defense counsel recommended because of the following aggravating circumstances: "substantial physical or psychological injury to the victims," the number of victims involved, and Casper was in a position of authority over the victims. Casper appeals.

¶9 On appeal, Casper contends he received constitutionally ineffective assistance of counsel because defense counsel failed to "present evidence of proportionality-an essential prong of the interests-of-justice framework articulated under LeBeau ... [at] the sentencing hearing." "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Craft , 2017 UT App 87, ¶ 15, 397 P.3d 889 (quotation simplified).

¶10 To succeed on a claim of ineffective assistance of counsel, "a defendant must first demonstrate that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment." State v. Litherland , 2000 UT 76, ¶ 19, 12 P.3d 92 ; see also Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When challenging counsel's performance, a defendant must overcome the "strong presumption that under the circumstances, the challenged action might be considered sound trial strategy." Litherland , 2000 UT 76, ¶ 19, 12 P.3d 92 (quotation simplified). If the defendant has demonstrated that counsel's performance was deficient, the defendant must then show that the deficient performance was prejudicial and negatively affected the outcome of the case. Id. ¶ 19 ; see also Strickland , 466 U.S. at 687-88, 104 S.Ct. 2052. If the defendant "fails to establish either of these prongs, he cannot prevail on a claim of ineffective assistance of counsel." State v. Smith , 2012 UT App 338, ¶ 9, 291 P.3d 869 (quotation simplified).

¶11 In LeBeau , 2014 UT 39, 337 P.3d 254, the defendant was convicted of aggravated kidnapping, aggravated assault, and cruelty to an animal. Id. ¶ 1. The defendant challenged his sentence of life in prison without the possibility of parole for the aggravated kidnapping conviction, arguing that the "district court failed to properly consider whether the interests of justice warranted a lesser sentence as allowed for in Utah's aggravated kidnapping statute." Id. ¶¶ 1-2. The Utah Supreme Court noted that the legislature "added the interests-of-justice language to Utah's aggravated kidnapping statute in 2007 as part of a sweeping revision of the penalties associated with sexual offenses and kidnapping." Id. ¶ 29. The court then explained that the "interests of justice" inquiry "necessarily requires the court to consider the proportionality of the defendant's sentence in relation to the severity of his offense ... [and] appropriately weigh a defendant's potential for rehabilitation." Id . ¶ 37 (quotation simplified).

¶12 The two factors for the proportionality analysis include "the seriousness of the defendant's conduct in relation to the severity of the sentence imposed" and "the severity of the sentence imposed in light of sentences imposed for other crimes in the same jurisdiction." Id. ¶ 41. The court clarified that the proportionality analysis requires more than weighing aggravating and mitigating circumstances. Id. ¶ 30. It then went on to explain that, when analyzing the defendant's rehabilitative potential, sentencing courts must consider all of the relevant factors.

Id. ¶ 54. Although Utah appellate courts did not explicitly address LeBeau 's application to aggravated sexual abuse cases until after Casper was sentenced, see State v. Alvarez , 2017 UT App 145, ¶ 2, 402 P.3d 191, for the purposes of this appeal, we assume, without deciding, that it applies.

¶13 Casper's argument that counsel should have provided evidence for a proportionality analysis under LeBeau fails because he cannot show that there was "no conceivable tactical basis for counsel's actions." See State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation simplified). Counsel reasonably could have determined that prompting the court to engage in a LeBeau proportionality analysis would have been more harmful than beneficial.

¶14 First, directing the court to LeBeau and arguing that aggravated sexual abuse of a child carries a greater punishment than "significantly more serious crimes"-such as "murder"-would have been risky considering the strong language in LeBeau related to sexual abuse cases, especially those involving children. In LeBeau , the court stated that "sexual crimes, particularly those involving children, represent an especially heinous form of bodily insult" and that sexual crimes "intrude on the fundamental bodily integrity of the victim like no others short of murder." 2014 UT 39, ¶¶ 49-50, 337 P.3d 254. Had counsel directed the court to LeBeau , the court would have considered that language in light of Casper's conduct, including the aggravating circumstances, and could have determined that Casper should be sentenced to the presumptive fifteen years to life imprisonment.

¶15 Casper claims that the court did not provide aggravating circumstances to support the sentence. But the court was not required to find any aggravating circumstances to support the sentence, because aggravated sexual abuse of a child carries the presumptive sentence of fifteen years to life. Utah Code Ann. § 76-5-404.1(5) (LexisNexis 2017). Instead, the court was required to find mitigating circumstances that would justify the reduction of Casper's sentence, which it did. Id. § 76-5-404.1(6). In any event, the court specifically noted that it was "adding [the] aggravating circumstances of causing substantial ... psychological injury to the victims. [The crimes] involve two or more victims, and [Casper was] in a position of authority." These circumstances directly correlate to the circumstances identified in the sexual abuse of a child statute that provides that a defendant's conduct becomes aggravated when, among other circumstances, the defendant: "caused bodily injury or severe psychological injury to the victim during or as a result of the offense;" "prior to sentencing for this offense, was previously convicted of any sexual offense;" or "occupied a position of special trust in relation to the victim." Id. § 76-5-404.1(4)(b), (e), (h).

¶16 The court then stated that "it will be the order and judgment of the Court then on these two first-degree felonies that the maximum penalty be imposed," but "in the interest of justice," the court reduced his sentence to ten years to life based on a mitigating circumstance-Casper's mental health. It was therefore reasonable for defense counsel to avoid comparing aggravated sexual abuse of a child to murder, see LeBeau , 2014 UT 39, ¶¶ 49-50, 337 P.3d 254, or other crimes with different sentences, and instead focus on the mitigating circumstances-such as Casper's mental-health status, his lack of a prior criminal history, his willingness to engage in treatment, and his remorse -and the State's sentencing recommendation of a sentence of six years to life imprisonment.

¶17 A second tactical basis for counsel's decision is apparent from the record in that Casper and the State negotiated a plea deal in which part of the agreement for Casper to plead guilty to the two counts was for the State to recommend a reduced sentence of two consecutive terms of six years to life. Counsel therefore reasonably could have determined that he should focus the court's attention on the State's recommendation and that the recommendation could have been undermined if counsel directed the court to LeBeau and the proportionality analysis.

¶18 A third tactical basis for counsel not to ask for a proportionality analysis is that the court would then be required to consider LeBeau 's second factor regarding Casper's rehabilitative potential. Id. ¶ 37. This would have required the court to consider that Casper had admitted to previously putting his hand down a female neighbor's pants and touching her "private parts." Casper said he was aware of the "cyclical patterns of [his] crime[s]." He also acknowledged that he has impulse control disorder, and one of his therapists explained that Casper tested high on the sexual addiction scale and continues to "experience[ ] excessive thinking about sexual behavior, [have] opportunities to view pornography, and entertain[ ] sexual fantasies." All of this information would have alerted the court to Casper's poor rehabilitative potential.

¶19 We therefore conclude that defense counsel made a reasonable tactical decision not to ask the court to engage in a proportionality analysis under LeBeau and to instead focus on the mitigating circumstances and the State's recommendation of a reduced sentence of two consecutive terms of six years to life imprisonment. Because Casper has failed to establish that his counsel performed deficiently, we do not address his prejudice argument. See Strickland v. Washington , 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (providing that courts need not address "both components of the [ineffective-assistance-of-counsel] inquiry if the defendant makes an insufficient showing on one"). Accordingly, we affirm.

      Casper's convictions arose from two separate cases involving aggravated sexual abuse of a child. The district court sentenced Casper on both cases at the same hearing. Because Casper challenges the sentences the court imposed, we have consolidated both cases for purposes of this appeal.

      Casper also appears to argue that the district court erred when it failed to engage in a proportionality analysis. But Casper did not raise this issue before the district court and has failed to argue that the plain error exception to the preservation rule applies. See State v. Johnson , 2017 UT 76, ¶¶ 18-19, 416 P.3d 443. We therefore decline to address it.

      It appears that Casper is arguing that counsel should have pushed for a further reduced sentence because Casper's conduct aligned more with the elements necessary to convict of only sexual abuse of a child, "but because he was [related to the victims], his punishment jumped to 10 years to life." First, his punishment did not "jump[ ]" to ten years to life; it was reduced from the presumptive fifteen years to life. Second, Casper pleaded guilty to two of the four counts of aggravated sexual abuse of a child with the stipulated aggravator of being in a position of special trust to the victims. In exchange, the State dismissed two other counts of aggravated sexual abuse of a child. And, as explained above, see supra ¶15, the court found other aggravating circumstances to support its decision not to reduce his sentence further to six years to life. By arguing that pleading guilty to two counts of aggravated sexual abuse of a child should be considered akin to pleading guilty to sexual abuse of a child-because the aggravating factor was only that he was in a position of special trust-and therefore the sentence should have been reduced even further would have only served to highlight the favorable plea deal and undermine Casper's apparent remorse for the harm he admits to have inflicted on the victims.