Pope v. Pope

2017 UT App 24

THE UTAH COURT OF APPEALS

GREG J. POPE,
Appellant,
v.
CARMEN R. POPE,
Appellee.

Memorandum Decision
No. 20150869-CA
Filed February 9, 2017

Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 134904171

Marshall Thompson and Emily Adams, Attorneys
for Appellant
Russell Yauney, Attorney for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY
concurred.

ROTH, Judge:

¶1 Greg J. Pope (Father) appeals from the district court’s
memorandum decision and decree of divorce, particularly the
court’s custody determination. We affirm.

¶2 Father and Carmen R. Pope (Mother) wed in 2009. In 2013
they filed for divorce. The parties have two children and shared
joint legal and physical custody of the children following their
separation. In a three day bench trial, the parties contested,
among other things, which parent should be the children’s
primary custodian and which school the children should attend.
Pope v. Pope

¶3 Following trial, the district court entered a detailed and
thorough memorandum decision in which it made findings of
fact and conclusions of law regarding custody of the children.
The court ultimately determined that the parties should have
joint legal and physical custody of the children, but that Mother
should be the children’s primary custodian and that the children
should attend school in Mother’s neighborhood. Father
challenged the court’s ruling in a post-trial motion to amend and
enter new judgment. Specifically, Father contested the court’s
findings regarding several custody factors—moral character and
emotional stability, ability to provide personal rather than
surrogate care, and financial condition—and its determination
that the children should attend school in Mother’s
neighborhood. He also challenged the district court’s decision to
permit Mother’s fiancé to testify at trial despite the fact that the
fiancé, who was not expected to testify, had remained in the
courtroom after the witness exclusion rule was invoked. See
generally Utah R. Evid. 615 (‚At a party’s request, the court must
order witnesses excluded so that they cannot hear other
witnesses’ testimony.‛). The district court denied Father’s
motion in a written decision in which the court further explained
its reasoning.

¶4 On appeal, Father raises the same challenges to the
district court’s findings that were addressed in his post-trial
motion. ‚We will not disturb a trial court’s findings of fact unless
they are clearly erroneous, that is, unless they are in conflict with
the clear weight of the evidence, or this court has a definite and
firm conviction that a mistake has been made.‛ Robertson v.
Robertson, 2016 UT App 55, ¶ 5, 370 P.3d 569 (ellipsis, citation,
and internal quotation marks omitted). And we afford ‚a trial
court . . . considerable ‘discretion to decide whether a defendant
will be prejudiced by permitting a witness to testify in the face of
a violation of the [witness exclusion+ rule.’‛ See State v. Gibson,
2016 UT App 15, ¶ 13, 366 P.3d 876 (alteration in original)
(quoting State v. Carlson, 635 P.2d 72, 74 (Utah 1981)).

20150869-CA 2 2017 UT App 24
Pope v. Pope

¶5 Father first asserts that the district court’s determination
that the moral character and emotional stability factors weighed
in favor of Mother was contrary to the evidence. He specifically
takes issue with the court’s finding that Father’s ‚categorical
denials‛ of alleged online misconduct called into ‚question his
veracity and honesty.‛ At trial, Mother testified that, toward the
end of the marriage, she found text messages and emails on
Father’s phone and computer from people responding to a
classified ad Father had posted online. According to Mother,
some of these emails indicated that Father was engaged in illegal
activity, while others suggested simply personal relationships.
Mother further testified that, when she confronted Father with
the emails, he admitted to illegal conduct. Mother also testified
that she found nude photos of Father and other individuals on a
thumb drive belonging to Father. She also testified, however,
that both the thumb drive and the emails were either lost or
destroyed. While Father admitted to having viewed
pornography, he denied having posted online ads ‚to try to find
people to meet up with‛ or ‚to try to engage in any sort of sexual
activity with anybody.‛ He also denied having sent any
messages arranging ‚to meet up with people,‛ or ever
possessing a thumb drive with nude photos of himself and
others on it. Lastly, Father denied that Mother ever confronted
him about messages or photos and claimed that the first time he
had ever heard any such allegations was in court.

¶6 The district court made the following findings about
Father’s online activities:

While the Court found [Mother] to be credible
regarding some of those events—i.e., online dating
and involvement with pornography—it was
speculative that *Father’s+ conduct was criminal as
opposed to distasteful. And, there was nothing
indicating that the Minor Children’s well-being or
safety was ever at risk as a result of *Father’s+

20150869-CA 3 2017 UT App 24
Pope v. Pope

alleged activities, whatever they may have
been . . . . Finally, although there was nothing
solidly linking [Father] to defined criminal
behavior, the Court did find [Mother] to be a
credible witness. Thus, *Father’s+ categorical
denials of the alleged conduct causes the Court to
question his veracity and honesty.

Father maintains that the court could not have simultaneously
determined both that Mother was credible and that he had not
engaged in criminal conduct. He likewise asserts that the court
could not have found his denials to be dishonest when the court
itself determined that the evidence was insufficient to
demonstrate that he engaged in any illegality. Thus, Father
argues that the district court’s determination that the moral
character and emotional stability factors weighed in favor of
Mother was clearly erroneous.

¶7 We cannot agree with Father’s assertion that the district
court’s findings regarding the illegal activity allegations were
internally inconsistent.

Trial courts are accorded wide latitude in
determining factual matters. They are in the best
position to assess the credibility of the witnesses
and to gain a sense of the proceeding as a whole.
Where contradictory testimony is offered by two
witnesses, the fact finder is free to weigh the
conflicting evidence presented and to draw its own
conclusions.

Valcarce v. Fitzgerald, 961 P.2d 305, 314 (Utah 1998) (plurality
opinion) (alteration, citations, and internal quotation marks
omitted). A careful reading of the findings indicates that the
court believed Mother’s account that Father was involved in
meeting for romantic liaisons with people he met through the
internet—what the court referred to as ‚online dating.‛

20150869-CA 4 2017 UT App 24
Pope v. Pope

However, the court believed the evidence was ‚speculative‛ as
to whether Father’s ‚conduct was criminal as opposed to
distasteful.‛ In light of Mother’s testimony, it was not clearly
erroneous for the district court to conclude that Father was
engaged in some form of romantic contact with individuals he
met online and that Father’s categorical denials of such activity
were disingenuous, while not going so far as to conclude that
Father engaged in anything unlawful.

¶8 In any event, it is apparent that Father’s alleged activities
did little to influence the district court’s ultimate determination
that the moral character and emotional stability factors favored
Mother. Indeed, the court acknowledged that Mother had
likewise engaged in ‚questionable conduct‛ online and
concluded that, whatever the nature of Father’s behavior had
been, there ‚was nothing indicating that the Minor Children’s
well-being or safety was ever at risk‛ because of it. Thus, the
court did not appear to demonstrate a preference for either
parent based on their respective online dating behavior. Rather,
the court explained that the primary factor contributing to its
decision on this issue was that Father had taken his two-year-old
son with him during a criminal episode in Maryland in which he
attempted to extort money from another individual, and Father’s
resulting felony conviction.

¶9 In its findings, the court explained that Father showed a
‚lack of judgment‛ by ‚having his child present during the
events of that crime,‛ that Father did not ‚convince the Court
that he appreciated the gravity of his past actions,‛ and that the
court consequently had ‚reservations regarding *Father’s+ ability
to make sound decisions in the best interests of the Minor
Children.‛ Further, in ruling on Father’s post-trial motion, the
district court confirmed that it ‚did not base its ruling on *the
illegal activity+ allegation,‛ but rather it ‚considered all
evidence,‛ most notably the ‚criminal episode in Maryland.‛
Father does not challenge the court’s findings regarding that

20150869-CA 5 2017 UT App 24
Pope v. Pope

incident. Thus, the district court’s conclusion that the moral
character and emotional stability factors favored Mother was
based on a well-reasoned and considered assessment of the
credibility of the parties and the weight of the evidence
presented on both sides, in which we find no error.

¶10 Father next challenges the district court’s finding that the
parties were equally capable of providing personal rather than
surrogate care. The court found that Father was working part
time on the night shift as a janitor and therefore ‚ha[d] his
weekdays available to take care of the Minor Children.‛
However, the court was skeptical that Father could maintain
such a work schedule long term because he was underemployed
and ‚fore[went] child care while he [was] at work‛ to save
money. The court likewise found Mother’s aspiration to be a
stay-at-home mother to be economically unreasonable, even
after her upcoming remarriage. While the district court
recognized that Father was then in the best position to provide
personal care because he was working part time at night, it
concluded that, in the long term, ‚the most likely scenario is that
both parties will need to be gainfully employed on a full-time
basis to adequately provide for the needs of themselves and the
Minor Children as they mature.‛

¶11 In challenging the court’s conclusion that the personal
care factor was neutral, Father focuses primarily on the court’s
expression of concern that ‚the young children [were] left
unattended during the evening hours‛ while Father was at
work. Father lived in a basement apartment in his mother’s
(Grandmother’s) home. He put the children to bed before he left
for work. There was an external entrance to the apartment, but it
was locked while Father was gone. Although the children slept
alone in the basement, there was an internal staircase from
which they could access the main floor, and Grandmother
testified that she could hear the children and attend to their
needs if concerns arose. Thus, Father asserts that the district

20150869-CA 6 2017 UT App 24
Pope v. Pope

court clearly erred in finding that the children were left
unattended during the evening hours.

¶12 Although the court suggested that the children were left
‚unattended‛ while Father was at work, it clearly recognized
and considered the fact that Grandmother was present in the
home. Nevertheless, the court was ‚not convinced that in the
event of emergency the Minor Children would be timely and
adequately protected and cared for.‛ We are not persuaded that
such a finding was clearly erroneous in light of the evidence.
While Father asserts that the court’s ruling essentially concludes
that ‚anyone caring for minor children must sleep on the same
level of the house as the children,‛ the fact that the basement
was delineated as a separate living space, both physically and in
the children’s minds, albeit with ready access via an internal
staircase, makes this situation somewhat different from that of a
typical dedicated caregiver sleeping on a separate level of a
single-family home. As the court observed in its ruling on the
post-trial motion, Father ‚made it a point during his testimony,
that although he resided in the basement of his mother’s home, it
was in a separate 1300 square foot, two-bedroom apartment,
with a separate entrance.‛ Grandmother similarly testified that
although the children were welcome in her part of the house, she
and Father ‚encourage[d] the children to . . . own their space and
use their door to the outside‛ and, further, that the children
understood that ‚dad’s house‛ and ‚grandma’s house‛ were
separate.

¶13 Given these circumstances, the court’s skepticism about
whether the children had adequate care during the night was not
clearly erroneous. This is especially so as the court’s concern was
expressed in the context of comparing Mother’s and Father’s
households and their long-term financial conditions and did not
amount to an affirmative finding that the children would be at
serious risk with Father. Indeed, the court concluded that the

20150869-CA 7 2017 UT App 24
Pope v. Pope

relative ability of the parties to provide personal versus
surrogate care favored Father in the short term.

¶14 Further, the court’s determination that Father’s
employment situation was unsustainable relied not only on his
inability to afford adequate child care when he was at work, but
also on the fact that Father had to live with Grandmother in
order to ‚accommodate his part-time earnings.‛ Although
Father maintains that he could continue working part time and
living with Grandmother indefinitely, Grandmother herself
testified that she did not anticipate Father and the children living
in her basement long term. She stated that although she had no
deadline for Father and the children to move out of her home,
she hoped that Father would become ‚self-sustaining at some
point[,]‛ and she and Father had talked about Father getting ‚his
own place‛ ‚somewhere in the near future.‛ Thus, even setting
aside the question of whether the children were adequately
cared for at night when Father was working, the court did not
exceed its discretion in determining that Father’s part-time
employment and living situation were unsustainable and that he
would eventually need to seek full-time employment that would
limit his ability to provide personal care for the children.
Accordingly, we conclude that there was an adequate basis in
the evidence to support the court’s determination that the
surrogate care factor currently favored Father because of his
availability due to part-time work but would be neutral in the
long run because of the instability of his financial situation. See
In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (‚When a foundation
for the court’s decision exists in the evidence, an appellate court
may not engage in a reweighing of the evidence.‛).

¶15 Father also challenges the basis for the district court’s
related conclusion that the parties’ relative financial conditions
favored Mother. Father argues that the district court
inappropriately favored Mother’s ‚step-parent household‛ over
Father’s ‚multigenerational household‛ by taking into account

20150869-CA 8 2017 UT App 24
Pope v. Pope

the income of Mother’s fiancé when analyzing her financial
circumstances but refusing to ‚also consider Grandmother’s
income in Father’s favor.‛ While Grandmother was effectively
subsidizing Father’s living expenses by letting him live in her
basement for only $200 per month, she indicated that she
expected Father to move out ‚in the near future.‛ As the district
court observed in its ruling on the post-trial motion, ‚neither
[Father] nor [Grandmother] presented evidence that
[Grandmother] contributed financially to the care/support of the
Minor Children.‛ (Footnote omitted.) Thus, the court did not err
in failing to consider Grandmother’s income in analyzing
Father’s financial situation because there was no basis for the
court to conclude that Grandmother planned to make long-term
financial contributions to the children’s care as Mother’s fiancé
planned to do.

¶16 Father next challenges the district court’s ruling that the
children should change schools and attend school in Mother’s
neighborhood. His argument rests on the assertion that the
district court relied primarily on published school quality
rankings to determine which school the children should attend
rather than considering the emotional impact a change in schools
would have on the children. Evidence presented at trial
indicated that the children were doing well at their current
school, and Father testified that he wanted the children to
‚continue*+ going to the school that they’ve been accustomed to
and are doing wonderfully at‛ and that he thought it was
important for them to attend a school that is ethnically diverse.
But Father did not specifically argue at trial that the children
would be emotionally harmed by changing schools. His
arguments in the post-trial motion and on appeal rest on his
statement that ‚*o+ne of the most traumatic things that can
happen to a young child is to change schools.‛ Beyond this bare
assertion, however, Father has never attempted to present even
general evidence that the effects of changing schools are deep
and permanent, let alone specific evidence that his children in

20150869-CA 9 2017 UT App 24
Pope v. Pope

particular would suffer as a result of a move. Having been
presented with no evidence on point, we are unpersuaded by
Father’s assertion that the district court should have done more
to consider the emotional impact that changing schools would
have on the children. See State v. Guard, 2015 UT 96, ¶ 29, 371
P.3d 1 (indicating that an issue ‚must be supported by evidence
and relevant legal authority‛ (citation and internal quotation
marks omitted)).

¶17 Further, while we acknowledge that a change in schools
can be difficult for a child, the transitory distress from such a
move does not as a matter of law necessarily outweigh other
factors that might impact that child’s well-being. Here, the
district court found that the school in Father’s neighborhood was
ranked 525th out of 561 elementary schools in the state, while the
school in Mother’s neighborhood was ranked 78th. The school in
Father’s neighborhood had standardized test scores of 52.53 in
language arts and 59.25 in math, whereas the school in Mother’s
neighborhood scored 86.30 in language arts and 88.17 in math.
Given the significant discrepancy between the academic
performance of the two schools, it was within the court’s
discretion to determine that, under the particular circumstances,
the educational opportunities afforded by the school in Mother’s
neighborhood outweighed the benefits of ethnic diversity at the
school in Father’s neighborhood, as well as any concerns about
how the children would adjust to a change in schools.1

¶18 Finally, Father argues that the court exceeded its
discretion in permitting Mother’s fiancé to testify despite his
having remained in the courtroom after the witness exclusion

1. This is especially true where the instability of Father’s living
situation introduced some uncertainty about whether the
children would be able to continue attending their current
school.

20150869-CA 10 2017 UT App 24
Pope v. Pope

rule was invoked. Although the fiancé was on the original
witness list, Mother’s counsel did not intend to call him as a
witness, which is why he was not excluded from the courtroom
when the rule was invoked. Rather, Mother’s fiancé testified at
the district court’s own request. After hearing the evidence
presented by the parties, some of which focused on the role of
the fiancé in the children’s lives, both present and prospective,
the judge stated, ‚I think I need to hear from him.‛

¶19 ‚[A] trial court retains considerable ‘discretion to decide
whether a [party] will be prejudiced by permitting a witness to
testify in the face of a violation of the *witness exclusion+ rule.’‛
State v. Gibson, 2016 UT App 15, ¶ 13, 366 P.3d 876 (first and
second alterations in original) (quoting State v. Carlson, 635 P.2d
72, 74 (Utah 1981)). ‚The purpose of the [witness exclusion] rule
is to prevent witnesses from being influenced or tainted by the
testimony of other witnesses, or other evidence adduced at
trial.‛ State v. Curtis, 2013 UT App 287, ¶ 22, 317 P.3d 968
(citations and internal quotation marks omitted). Thus, ‚to show
that a trial court abused its discretion in allowing a witness to
testify despite a violation of the exclusionary rule, the [objecting
party] carries ‘the onus of showing’ prejudice,‛ Gibson, 2016 UT
App 15, ¶ 13 (quoting Carlson, 635 P.2d at 74), ‚and, in
particular, must demonstrate that the witness ‘changed *his or
her+ testimony’ in some material way because of what [he or she]
heard,‛ id. (quoting State v. McGrath, 749 P.2d 631, 634 (Utah
1988)). In addition, ‚rulings on evidence are looked upon with a
greater degree of indulgence when the trial is to the court than
when it is to the jury‛ ‚because it can be safely assumed that the
trial court will be somewhat more discriminating in appraising
both the competency and the rulings properly to be given
evidence.‛ State v. Park, 404 P.2d 677, 679 (Utah 1965). Given the
deference we grant and the fact that Father has failed to present
evidence suggesting that Mother’s fiancé altered his testimony
based on what he heard in the trial, we are not persuaded that

20150869-CA 11 2017 UT App 24
Pope v. Pope

the fiancé’s testimony resulted in unfair prejudice or that the
court exceeded its discretion in permitting the testimony.

¶20 We reject Father’s challenges to the district court’s
findings on the various custody factors. The district court’s
detailed findings of fact were not clearly erroneous and were
sufficient to support its determination that granting primary
custody to Mother and ordering the children to change schools
was in the children’s best interests. Further, because Father has
failed to show that he was unfairly prejudiced by the testimony
of Mother’s fiancé, the court did not exceed its discretion in
permitting the testimony.

¶21 Affirmed.

20150869-CA 12 2017 UT App 24