Trial Court Must Articulate a Reasonable Basis and Adequate Findings When Rejecting the Expert Conclusions

Woodward v. La Franca, 2013 UT App 147 Utah Court of Appeals Court June 13, 2013

Father filed a Petition to Modify requesting custody.  Mother engaged a therapist in an attempt to obtain evidence against Father and to confirm allegations of abuse.  When the therapist failed to provide evidence, Mother obtained a second therapist who also determined that Mother’s allegations were unfounded.  At the Rule 106 hearing, Father was awarded custody because of mother’s actions of having the child constantly interrogated and because of her coaching the child.  The court appointed a special master and a custody evaluator. Mother objected.  At the objection hearing, the therapists, special master and a custody evaluator agreed with the commissioner’s recommendation. The court, however, found that each expert was either unpersuasive and/or not credible and sustained the objection and returned custody to Mother. Father Appeals.

Court of Appeals found that the trial court must articulate a reasonable basis and adequate findings when rejecting the expert conclusions and failure to do so is an abuse of discretion.  The Court of Appeals then reviewed the testimony and criticized the trial court’s summary dismissal of important evidence of coaching and possible mental illness of Mother.

The trial court further erred when finding that because Mother is an acceptable parent, she should retain custody.  The Court pointed out that a best interest evaluation gives no preference to status quo, but must evaluate which parent is the more acceptable parent.  Because the court failed to make adequate findings as to the expert testimony, and because it improperly evaluated the best interest, this case was Reversed and Remanded.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/woodward061313.pdf 

Detailed and Unchallenged Expert Testimony is Sufficient Basis for Trial Court Findings

Liston v. Liston, 2011 UT app 433, December 22, 2011

Husband appealed the Decree which found wife’s credit card accounts and Husband investment accounts to be marital property. The trial court further awarded wife a sum of money for her ½ interest in water rights associated with the marital home. Husband Appealed.

Court of Appeals affirmed the trial court’s finding that Wife’s detailed and specific explanation that the credit card expenses were marital expenses was more credible when compared to Husband’s lack of explanation of the credit card expenses.  Indeed, Husband’s testimony that he had no idea of what expenses were on the Credit Cards displayed his ignorance on the issue.

Husband had a sizeable investment account to which he added funds that he claimed were from his mother.  The combined amounts were then placed in an account held solely in Wife’s name, then the entire amount (including Wife’s investments) were transferred into an account held in Husband’s deceased mother’s name.  Upon distribution, the Court described how it determined that Husband original investment in the account along with other token investments and interest thereon was Husband’s separate property. The remainder, including the portion that allegedly came from Husband’s mother, the Court found to be marital.   The Court of Appeals affirmed the trial court based on the trial court’s detailed findings and reliance on the CPA report.

Husband argued that the water rights were resolved in the parties’ partial stipulation.  As part of the stipulation husband was awarded the marital home and water rights “appurtenant thereto.”  An unchallenged expert testified that three of the four shares were not appurtenant to the home, but could be sold separately.  Court affirmed the trial court based on the expert’s unchallenged testimony.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/liston122211.pdf

Stability Is Key Factor in Deciding Best Interests of Special Needs Children

Grindstaff v. Grindstgaff, 2010 UT App. 261, (Utah Court of Appeals September 23, 2010).

Mother appealed the trial court’s award of custody to Father.  Mother and Father had two children, one with special needs.  The trial court found that the parties had been equally engaged in raising the parties’ minor children.  The trial court found that while stability was important for all the children, it was critically important to the parties’ special needs child. Because Mother had planned to move to Nevada, the trial court awarded custody to Father. Mother’s claim for joint custody was likewise denied because of the critical need for stability.

Wife also appealed the trial court’s refusal to admit testimony her expert.  At trial, Wife’s counsel conceded that the expert was not a custody evaluator; as such, any findings by her expert could not be used to rebut the custody evaluator’s findings. 

Finally, as to Wife’s denied attorney fees that were denied at trial because Father did not have the ability to pay the attorney fees,  the Court of Appeals found that while the trial court has a duty to hold a party in contempt, it also has great discretion in crafting a punishment to ensure compliance.

Affirmed on all issues.

Full Decision available at http://www.utcourts.gov/opinions/appopin/grindstaff092310.pdf

Failure to Submit to Corporate Formalities Will Subject Husband and Wife to Corporate Debt.

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Olson v. Olson, UT App. 22, (Utah Court of Appeals, February 4, 2010).

When Parties divorced, they had significant business debt.  Parties had so commingled the business and personal debts and assets that the business was simply and alter ego of the parties.  The trial court divided the business debt between the parties and ordered Husband to pay wife $1000 per month after the sale of the home.  Wife appealed those issues and many others including the valuation of the marital home, and the exclusion of her expert. 

The Court of appeals declined to rule on a number of the wife’s issues because she did not adequately brief the issues; she failed to show preservation, standard of review, and failed to cite relevant authority.  

The Court of Appeals affirmed all trial court findings.  The parties business failed to be a corporation in all respects. As to alimony, the tying of alimony to the sale of the home was property and shows that she is living rent free and that when they sell the home she will have need.  The court appropriately based the valuation of the home on Husband’s testimony as a knowledgeable owner.  The trial court appropriately excluded Wife’s expert because she had not provided an expert report from him.  A trial court can strike an expert’s testimony when the proponent failed to file an expert report and failed to list him on her witness list as and expert.

Full Decision available at http://www.utcourts.gov/opinions/appopin/olson020410.pdf