Huynh v. Witte

2026 UT App 150
THE UTAH C OURT OF APPEALS
JAYDEN H A HUYNH ,
Appellee and Cross-appellant,
v.
DANIEL E. WITTE,
Appellant and Cross-appellee.
Opinion
No. 20220160-CA
Filed October 8, 2026
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 134903429
Daniel E. Witte, Appellant and Cross-appellee Pro Se
Julie J. Nelson and Albert N. Pranno,
Attorneys for Appellee and Cross-appellant
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES R YAN M. HARRIS and R YAN D. TENNEY concurred.
ORME, Judge:
¶1 	Shortly 	after 	Daniel 	E. 	Witte 	and 	Jayden Ha 	Huynh
divorced pursuant to a stipulated divorce decree (the Decree),
Witte initiated what would become a highly contentious, nearly
decade-long post-divorce dispute in which custody of their
shared son (Son) was one of the central issues. Witte, a licensed
attorney 	representing 	himself, 	caused 	the 	focus 	of 	the
proceedings to be repeatedly derailed by his excessive and
unprofessional filings. This conduct ultimately compelled the
district court to sanction Witte pursuant to rule 11 of the Utah
Rules of Civil Procedure, requiring Witte to hire counsel rather
than continue representing himself. Later, following a bench trial,
the court awarded Huynh sole legal custody of Son and awarded
attorney fees to each party for prevailing on different issues. But

Huynh v. Witte
20220160-CA 	2 	2026 UT App 150
after neither party submitted an affidavit of fees for over two
years, the court rescinded the fee awards.
¶2 	On appeal, we address Witte’s challenges to the district
court’s rule 11 sanction and the court’s modification of legal
custody. On cross-appeal, Huynh assails the court’s decision to
rescind her award of attorney fees. We affirm on all fronts.
BACKGROUND1
The Decree and Petition to Modify
¶3 	Witte and Huynh were married in 2005. Son was born in
early 2013, and Huynh initiated divorce proceedings five months
later. In April 2014, pursuant to the parties’ stipulation, the district
court entered the Decree, which awarded the parties joint legal
custody of Son and awarded Huynh sole physical custody. Witte,
who lived in California at the time, was granted parent time
pursuant 	to 	Utah’s 	relocation 	statute. 	See 	Utah 	Code 	Ann.
§ 81-9-209 (LexisNexis Supp. 2025).2 Under the Decree, Huynh
had the express “right to relocate with [Son] so long as notice has
been provided pursuant to” the relocation statute.
1. On appeal from a bench trial, “we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite the
facts 	consistent 	with 	that 	standard. 	However, 	we 	present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” Mintz v. Mintz, 2023 UT App 17, n.3, 525 P.3d
534 (quotation simplified), cert. denied, 531 P.3d 730 (Utah 2023).
2. Renumbering aside, because the applicable provisions of the
Utah Code in effect at the relevant time do not substantively differ
from those currently in effect in any way material to this appeal,
we 	cite 	the 	most 	recent 	printed 	version 	of 	the 	code 	for
convenience.

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¶4 	Within a year of the entry of the Decree, the parties
switched states, with Witte relocating to Utah and Huynh, after
giving proper notice, moving with Son to California. Witte filed a
pro se petition to modify the Decree in September 2014, and in
April 2015, he filed an amended petition to modify and an
objection 	to 	Son’s 	relocation 	to 	California. 	In 	his 	amended
petition, Witte sought sole physical custody of Son but did not
request a change to the shared legal custody arrangement. In his
supporting memorandum, Witte requested “relief and an order
against . . . Huynh as set forth above and for other and such relief
as the Court may deem proper.”
¶5 	Huynh filed a counterpetition to modify the Decree, but
she eventually withdrew that petition. She did not seek a change
to legal custody in the withdrawn petition.
Rule 11 Sanction
¶6 	The litigation soon became, in the words of the district
court, “highly contentious.” Huynh first moved to designate
Witte as a vexatious litigant in April 2015. See Utah R. Civ. P. 83.
She complained that Witte had “filed numerous pleadings in this
matter 	that 	were 	excessive 	in 	length” 	and 	“contain[ed] 	an
exorbitant amount of pages of arguments and exhibits in light of
the issues.” She noted that in the preceding seven months, Witte
had filed approximately 79 different documents totaling a little
over 1,700 pages. Accordingly, Huynh requested that the district
court strike all of Witte’s prior filings, enter a default judgment
against him, enter an award of attorney fees in her favor, and
require Witte to obtain prior judicial approval before submitting
any future filings.
¶7 	Following a hearing in May 2015, a court commissioner
denied Huynh’s motion to designate Witte as a vexatious litigant
on the ground that the commissioner could not “make a finding
that there is no reasonable probability that [Witte] will prevail on
his 	Petition 	to 	Modify.” 	Nevertheless, 	the 	commissioner
acknowledged 	that 	Witte’s 	filings 	included 	“inappropriate”

Huynh v. Witte
20220160-CA 	4 	2026 UT App 150
claims against Huynh’s counsel, “scandalous” “name-calling,”
and language that rose “to the level of harassing” and violated the
Utah 	Standards 	of 	Professionalism 	and 	Civility. 	The
commissioner further found that the “volume and language in
[Witte’s 	filings] 	go 	beyond 	clarifying 	the 	issue.” 	The
commissioner admonished Witte “to take notice that he is close to
rising to the level of a vexatious litigant in the volume of [filings],
and 	the 	inappropriate 	contents 	of 	his 	[filings].” 	And 	the
commissioner instructed Witte to “follow the [Utah Standards] of
Professionalism and Civility.” The commissioner also invited
Huynh to file a motion for an order to show cause if Witte violated
those standards going forward.
¶8 	Witte’s 	filings 	did 	not 	improve 	following 	the
commissioner’s admonition. Six months later, in November 2015,
Huynh filed a motion for sanctions pursuant to rule 11 of the Utah
Rules of Civil Procedure and for an order to show cause.
Following a January 2016 hearing before the district court, the
court issued an order holding that Witte had violated rule 11 on a
“repeated and consistent” basis. More specifically, the court ruled
that between September 2014 and January 2016, Witte violated
rule 11 on 27 separate occasions by “submitting pleadings for an
improper purpose, such as to harass or to cause unnecessary
delay 	or 	needless 	increase 	in 	cost 	of 	litigation, 	as 	well 	as
submitting allegations that do not have evidentiary support.”3 On
the last point, the court found that no evidence supported Witte’s
assertions that Huynh’s counsel had lied in the filings, threatened
or retaliated against Witte, “attempted to sabotage the mediation
process,” or had ideas that were “examples of reverse racism,
anti-religious 	bigotry, 	Marxist 	feminist 	deconstructionalism,
extreme leftism, and other related socially-radical nonsense.” The
court also found that a 76-page affidavit Witte submitted in
response to Huynh’s motion for rule 11 sanctions “was an attempt
3. The district court further concluded that Witte had “gone above
and beyond in violating Rule 3 of the Utah [Standards] of
Professionalism and Civility through a pattern of accusations
against opposing counsel.”

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20220160-CA 	5 	2026 UT App 150
to circumvent the page length requirements by placing argument
in a document called an affidavit.”
¶9 	The court thus ordered that (1) page limits for motions and
memoranda 	would 	be 	enforced; 	(2) 	Witte 	must 	seek 	court
permission to submit overlength pleadings and memoranda;
(3) any references to Huynh’s counsel’s “nefarious intent, lying,
collaboration, 	or 	other 	unprofessional 	conduct” 	would 	“be
stricken from the record but the [filings] themselves will not be
stricken”; and (4) going forward, any violation of rule 11 would
“follow the procedure outlined in rule 11, which include[s]
sending 	notice 	to 	opposing 	counsel 	and 	giving 	them 	an
opportunity to cure the violation before filing a motion with the
Court.” The court declined to award Huynh attorney fees at that
time but indicated that any future rule 11 violations would result
in an attorney fees award.
¶10 	Once more, the court’s ruling did little to improve the
volume and content of Witte’s filings. In April 2017, Huynh filed
another motion for rule 11 sanctions. Huynh attached to the
motion an 18-page summary of all Witte’s alleged violations of
rule 11 since the court’s January 2016 order. This time, Huynh
requested that (1) the court strike all “objectionable” filings,
(2) Witte be required to obtain counsel, (3) Witte “be subject to a
pre-filing order requiring [him] to get authorization from the
Court before . . . any” filings, (4) she be awarded attorney fees,
and 	(5) 	the 	court 	impose 	any 	other 	sanctions 	it 	deemed
appropriate.
¶11 	In January 2018, following a hearing on the matter, the
court entered an order. The court first noted that “this is a highly
contentious matter by any standards” and stated that Witte’s
response to Huynh’s apparent failure to timely disclose to him her
new 	addresses 	and 	remarriage 	had 	“been 	extraordinarily
intemperate.” The court further found that, as previously noted
by the court commissioner in a minute entry, “the parties’ conflict
ha[d] expanded into a conflict between” Witte and Huynh’s
counsel, which “development appear[ed] to be the direct result of

Huynh v. Witte
20220160-CA 	6 	2026 UT App 150
the tone, content and volume of [Witte’s] communications with
counsel and the Court.”
¶12 	As an example, the court pointed to Witte’s response to
Huynh’s “unnecessar[y] but innocent[]” filing of a Request to
Submit for Decision Rule 11 Sanctions. Witte filed an Objection to
Request to Submit for Decision Rule 11 Sanctions in which he
made additional substantive arguments and disregarded the
court commissioner’s “prior admonition not to use single-spacing
for any purpose other than quotation.” Huynh’s counsel next felt
compelled to file a motion to strike Witte’s objection. The court
stated, “This sequence of events represents a perfect illustration
of [Witte’s] insistence on continuing to engage in a prolonged
conflict” 	because 	although 	Witte’s 	objection 	was 	itself 	not
inappropriate, it “clearly . . . constituted an improper effort to
make further substantive argument on the merits of [Huynh’s]
original motion after the matter had been fully briefed and
argued.”
¶13 	The court next expressed its view that because Witte “is a
practicing 	attorney 	and 	apparently 	his 	area 	of 	practice 	is
litigation,” it was “puzzling that he would display such a lack of
understanding about proper court procedure as well as either an
unfamiliarity, or simply a refusal to comply, with the Standards
of Professionalism and Civility.” The court found that some of
Witte’s 	direct 	communications 	with 	Huynh’s 	counsel 	were
“clearly offensive and abusive,” and while not directly subject to
rule 11 sanctions, those communications were relevant to Witte’s
“state of mind.” The court further found that Witte had
filed numerous papers with the Court which have
no support in the rules or the law. [Witte] has also
repeatedly attempted to circumvent the Court’s
page limits, despite warnings in the past, by filing
papers with lengthy footnotes for no good reason
other than to squeeze more words into a smaller
space. [Witte’s] papers are replete with comments
disparaging [Huynh] and her current husband, as

Huynh v. Witte
20220160-CA 	7 	2026 UT App 150
well 	as 	[Huynh’s] 	counsel. 	[Witte’s]
characterizations of the Court in his filings are at
best combative and highly disrespectful.
And the court noted that Huynh’s “detailed Motion for Rule 11
Sanctions itemizes multiple instances of each of these categories
of conduct.”
¶14 	The court went on to explain that “the sheer volume and
tone of [Witte’s] inappropriate communications to the Court and
to counsel, even in the face of efforts by the Court to correct his
behavior, demonstrate that [Witte] is acting out of malice and an
intent to use the legal process for punitive purposes.” The court
also found that as an attorney, Witte had violated at least
standards 1, 2, and 3 of the Utah Standards of Professionalism and
Civility and that his “pattern of conduct constitutes an ongoing
violation of Rule 11” of the Utah Rules of Civil Procedure, thereby
subjecting him to sanctions.
¶15 	Accordingly, after finding that Witte was able to afford an
attorney and that his time and efforts would be better spent
representing his own clients, the court entered an order requiring
Witte to obtain counsel. The court determined that this measure
was “entirely justified” given Witte’s “history in this matter.” The
court further stated that the sanction would spare the court,
Huynh, and her counsel “the necessity of contending directly
with [Witte’s] personal animosity” and that Witte “would benefit
by having experienced, objective counsel represent and advise
him in resolving the issues raised in the current proceedings.” The
court also prohibited Witte from communicating directly with
Huynh’s counsel. Lastly, the court entered a written order for an
award of attorney fees to reimburse Huynh for fees “incurred
specifically in responding to [Witte’s] improper filings, in an
amount 	to be 	established 	by 	affidavit 	of counsel, 	with 	the
remainder of any fees she has incurred as a result of [his] conduct
in the matter to be addressed at trial.”

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20220160-CA 	8 	2026 UT App 150
¶16 	Years later, in 2022, Witte challenged the court’s sanctions
order in a motion for a new trial, arguing that the requirement
that he obtain counsel had deprived him of his right to a fair trial.4
The court rejected his argument, stating that although Witte had
a right to self-representation, “this matter has some unusual
circumstances.” The court then recounted how “throughout the
proceedings,” 	Witte 	had 	accused 	Huynh 	“of 	various 	bad
behaviors with limited or no justification” and his “verbal attacks
have gone past inappropriate and are themselves abusive.” The
court stated that Witte’s misbehavior also targeted Huynh’s
counsel 	and 	that 	Witte 	had 	refused 	to 	comply 	with 	the
commissioner’s or the court’s directions. The court noted that the
commissioner 	had 	also 	“articulated 	his 	frustrations 	and
difficulties trying to get [Witte] to follow the rules, procedures
and directions” and that the commissioner had recommended
that Witte be required to obtain counsel as “the only solution to
the 	difficult 	issues 	presented 	by 	[his] 	behavior.” 	The 	court
accordingly denied the motion for a new trial.
Legal Custody of Son
¶17 	In October 2020, Huynh submitted a proposed order
certifying various issues for trial, including, as relevant here, the
legal custody of Son. Now represented by counsel, Witte objected
to Huynh’s proposed order, arguing that the certified issues
should be limited to those raised in his own pleadings or those
that were certified at a motion hearing because Huynh had no
pending counterpetition before the court. Nevertheless, among
the issues Witte listed as appropriate for trial certification was
“Legal Custody—[Witte’s] request for sole legal custody or final
decision making ability to protect against interference, and/or
other protective measures.” A few days later, the commissioner
4. In 2018, Witte also petitioned this court for leave to file an
interlocutory appeal challenging the order requiring him to obtain
counsel. This court denied that petition, and our Supreme Court
denied Witte’s petition for certiorari seeking review of our denial.

Huynh v. Witte
20220160-CA 	9 	2026 UT App 150
entered an order certifying the issue of legal custody, among other
issues, for trial.
¶18 	Witte objected to the commissioner’s certification order,
arguing that it was entered prematurely and asserting that the
purpose of the objection was “to preserve [his] right to complete
any open-ended motions or other pending unresolved issues, and
confirm [his] rights, pleadings, claims, causes of action, and
remedies, are all certified.” Witte sought “reassurance that the . . .
core issues being addressed,” including legal custody, “are all for
the goal of trying to stop the interference and make modifications
to better preserve and grow the father-son relationship.”
¶19 	What was initially intended to be a three-day bench trial
was held in July 2021. At the outset of trial, Witte’s attorney
objected to Huynh’s proposed findings of fact, which included a
modification to joint legal custody. Asserting that this was “a new
claim,” she pointed out that Huynh had not filed a counterpetition
requesting a modification to legal custody. She asserted that the
issue was “not fairly pled,” there had been “no discovery on it,”
and this was “essentially a trial by ambush.” The court took the
matter under advisement, stating that, in the meantime, “[W]e’re
going to go forward under the general guise that legal custody is
at issue.”
¶20 	During Witte’s trial testimony, when Witte’s attorney
asked him how he wished to deal with legal custody, Witte
responded that he was not seeking a change to legal custody.
Huynh, conversely, testified that shared legal custody was “very
hard” because Witte did not “agree on anything that [she]
believe[d was] best . . . for [Son], even like swimming or karate.”
¶21 	On the third day of trial, the district court stated, “Legal
custody here is a difficult issue, and, frankly, is really the core of
the problem between these two.” But the court stated that because
a request to modify the joint legal custody arrangement typically
needed to be pleaded in a petition to modify, the court would
consider legal custody only if it was “in play.” Accordingly, the

Huynh v. Witte
20220160-CA 	10 	2026 UT App 150
court 	ordered 	written 	argument 	on 	the 	matter. 	In 	his
memorandum, Witte objected to Huynh’s “attempts to modify
legal custody,” arguing that legal custody was not at issue
because it did not appear in his petition to modify or even
Huynh’s withdrawn petition to modify.
¶22 	Ultimately, after considering the parties’ memoranda, the
court held that the issue of legal custody had been “tried by
consent of the parties” and that it would thus “be treated as
having been raised in the petition.” See Utah R. Civ. P. 15(b). The
court stated that “the question . . . is how much attack on
[Huynh’s] . . . parenting decisions, abilities, [and] choices suffice
until legal custody is an issue, even though . . . Witte denies and
says that he has not consented to the issue.” The court then
proceeded to read several of the complaints Witte had made
against Huynh in both his petitions to modify and another
document referenced by the amended petition. This included
allegations that Huynh had “demonstrated poor judgment, erratic
behavior, and an unstable lifestyle”; had “become involved with
a circle of radical, militant activists sympathetic to homosexual
and bisexual views who are hostile to natural fathers”; had
“dressed 	up 	[Son] 	in 	homosexual 	cross-dressing 	attire[,
including] make-up, drag, female clothing, eyeliner, lipstick, nail
polish, etc. in the manner of a Southeast Asian lady boy”; and had
broken out in a “sudden and violent outburst of infantile, profane
rage.”
¶23 	The court also pointed to the court commissioner’s order
certifying the issue of legal custody for trial and to the fact that
Witte had been the first to broach the subject at trial during his
own testimony. The court concluded that “the essence of all that
is that the issue of legal custody was brought up both in the
petitions, in the certified order by the commissioner, and then
tried by consent of the parties,” and thus, the court concluded that
consideration of issues surrounding legal custody was proper.
¶24 	Later, in its written Findings of Fact and Conclusions of
Law, entered in January 2022, the court reiterated,

Huynh v. Witte
20220160-CA 	11 	2026 UT App 150
By repeatedly attacking [Huynh’s] decisions and
choices as a parent in his Petition to Modify and
Amended Petition to Modify, . . . Witte has raised
the issue of legal custody of [Son] in his pleadings.
By first presenting evidence about what he wanted
as far as legal custody, and by presenting evidence
accusing 	[Huynh] 	of 	dressing 	[Son] 	up 	as 	a
prostitute, 	and 	by 	[Huynh] 	responding 	to 	and
presenting evidence on these issues, the parties
have, by consent, tried the issue of legal custody.
¶25 	After concluding that the issue of legal custody was
properly before it, the court continued the trial, setting a fourth
trial day for October 2021, at which the best interest of Son would
be 	addressed. 	Following 	this 	fourth 	trial 	day, 	the 	court
determined that “the complete breakdown” of the parties’ ability
to co-parent constituted “a material change in circumstances
relating to legal custody.” And after a lengthy recitation of facts
supporting its decision, the court determined that it was “in the
best interest of [Son] that one parent have sole legal custody rather
than continue with the constant disputes now present with both
parties” and that it was in Son’s best interest that Huynh have sole
legal custody of Son. Relatedly, except for a few “[m]inor changes
to the parent time schedule,” the court also declined to disturb the
sole physical custody granted to Huynh under the Decree.
¶26 	The district court again addressed the issue of whether
modification of legal custody was properly before the court in its
ruling on Witte’s motion for a new trial.5 See supra ¶ 16. In that
order, the court reaffirmed its conclusion that the issue had been
fully adjudicated with the consent of the parties, stating, “This
court ultimately found that the issues referred to were brought up
and tried by consent, had been raised in the pleadings or were
certified 	for 	trial. 	This 	court 	noted 	that 	[Witte’s] 	frequent
5. In the interim, Witte sought Judge Parker’s disqualification.
Associate Presiding Judge Laura S. Scott denied this request in
March 2022. See infra note 12.

Huynh v. Witte
20220160-CA 	12 	2026 UT App 150
accusations concerning [Huynh’s] ability to parent placed all the
evidence considered at trial in issue.”
Attorney Fees
¶27 	At the conclusion of the fourth day of trial, on October 27,
2021, the district court awarded attorney fees “over the joint and
legal custody issue” to Huynh from the bench. The court asked
Huynh’s counsel to prepare an affidavit of fees within 60 days and
indicated that Witte would then have 30 days to respond. No such
affidavit was submitted within that timeframe.
¶28 	In its written Findings of Fact and Conclusions of Law,
entered 75 days later, on January 10, 2022, the court held that
Huynh had prevailed on four issues, including “[l]egal and
physical custody,” and awarded her attorney fees on those issues.
The court also awarded Witte attorney fees associated with two
issues it found he had prevailed on at trial, namely “[m]inor
changes 	to 	the 	modification 	of 	parent 	time” 	and 	“[h]ealth
insurance premiums reimbursement.” The court ordered each
party 	to 	“submit 	affidavits 	on 	attorney 	fees 	taking 	into
consideration fees already awarded on some of these issues.” But
the court’s written order did not set a deadline for submitting
those affidavits.
¶29 	Witte subsequently filed his motion for a new trial on
January 20, 2022, see supra ¶¶ 16, 26, and he filed a notice of appeal
on February 7, 2022. In April 2022, because the motion for a new
trial was still pending and because the attorney fees award
remained outstanding, this court issued an order stating that
“jurisdiction in this court has not yet been perfected” and staying
the appeal “pending the entry of a final, appealable order and the
resolution of postjudgment motions that toll the time to appeal.”
See Utah R. App. P. 4(b).
¶30 	The district court denied Witte’s motion for a new trial in
December 2022, and Witte subsequently filed with this court a
Motion, 	Notice, 	and 	Memorandum 	on 	Appeal 	to 	Begin

Huynh v. Witte
20220160-CA 	13 	2026 UT App 150
Progression of Appeal After “Final” Order and Judgment.6 In
January 2023, this court issued another order indicating that the
appeal “remain[ed] stayed pursuant to rule 4(b) [of the Utah Rules
of Appellate Procedure] pending the entry of a final, appealable
order, including the contemplated award of attorney fees.” And
in November 2023, after no further progress was made in the
district court on the matter of attorney fees, this court issued
another order directing the parties to “file fee affidavits in the
district court within 28 days” and stating that failure to do so by
either party would result in dismissal of the appeal without
prejudice. Both parties then filed their attorney fees affidavits
before the 28-day deadline.
¶31 	In conjunction with his fee affidavit, Witte moved for the
district court to rescind its prior attorney fees awards and enter
final judgment. In April 2024, following a hearing, the district
court granted the motion. The court ruled that “the deadlines and
requirements for submitting the affidavit of attorney fees were not
met pursuant to the Court’s deadlines ordered from the bench on
October 27, 2021,” and that, in any event, the affidavits would be
untimely under rule 73 of the Utah Rules of Civil Procedure. The
court stated that “[y]ears went by without either party filing any
attorney fee affidavit or motions” since October 2021 when it,
from the bench, “gave sixty days to submit any fee affidavits with
thirty more days for any opposition.” The court also indicated that
it 	was 	“not 	pleased 	with 	either 	party’s 	recent 	affidavit
submissions, which make disproportionate requests for minor
issues.” For those reasons, the court declined to award attorney
fees in the matter and entered final judgment.
¶32 	Thereafter, the stay of the current appeal was lifted, and
the appeal proceeded to briefing.
6. On appeal, Witte has resumed representing himself. But in the
district court, he continued to be represented by counsel.

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20220160-CA 	14 	2026 UT App 150
ISSUES AND STANDARDS OF REVIEW
¶33 	Although Witte’s briefing is largely unfocused, see infra
Part I, we parse two main issues that he raises on appeal. First, he
challenges the district court’s requirement that he obtain counsel
as a sanction entered pursuant to rule 11 of the Utah Rules of Civil
Procedure. In reviewing the imposition of rule 11 sanctions, we
employ “a three-tiered approach: (1) findings of fact are reviewed
under the clearly erroneous standard; (2) legal conclusions are
reviewed under the correction of error standard; and (3) the type
and amount of sanctions to be imposed are reviewed under an
abuse of discretion standard.” Ward v. McGarry, 2024 UT App 169,
¶ 27, 561 P.3d 200 (quotation simplified), cert. denied, 564 P.3d 957
(Utah 2025).
¶34 	Second, Witte assails the court’s modification of legal
custody. Specifically, he challenges the court’s determination that
the issue of legal custody was tried by the consent of the parties
under rule 15(b) of the Utah Rules of Civil Procedure. “We review
the trial court’s application of rule 15(b) for correctness.” In re A.
Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 66, 536
P.3d 38 (quotation simplified). 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.” Pilot v. Hill, 2019 UT 10, ¶ 9, 437 P.3d
362 (quotation simplified). In sum, whether the issue of legal
custody was tried by consent “is a fact-intensive mixed question
of law and fact entitling the trial court’s decision to broad
deference.” Id.
¶35 	Huynh cross-appeals the district court’s rescission of its
initial attorney fees award. “We review a district court’s decision
[whether] to award attorney fees for an abuse of discretion, but
review its underlying legal conclusions for correctness.” Miner v.
Miner, 2025 UT App 64, ¶ 13, 571 P.3d 788, cert. denied, 574 P.3d
526 (Utah 2025). We also “review a district court’s decision to
reconsider an earlier decision for an abuse of discretion.” Jordan

Huynh v. Witte
20220160-CA 	15 	2026 UT App 150
Constr., Inc. v. Federal Nat’l Mortgage Ass’n, 2017 UT 28, ¶ 22, 408
P.3d 296.
ANALYSIS
I. Witte’s Briefing
¶36 	Before reaching the merits of the parties’ arguments, we are
compelled to first address the quality and content of Witte’s
briefing. On appeal, Witte has resumed representing himself and,
regrettably, has continued many of the same briefing practices—
both in form and substance—that characterized his disruptive
conduct in the district court. Rather than assisting this court in
navigating 	a 	complicated, 	nearly 	decade-long 	post-divorce
dispute, his sprawling and largely disorganized brief has served
as more of a hindrance than a help. Put differently, Witte has
fallen well short of his “responsibility to assist the judiciary in
advancing jurisprudence through diligent advocacy, adherence to
our rules, and competent representation.” Lamb v. Lamb, 2024 UT
App 16, ¶ 20, 545 P.3d 273.
¶37 	Witte’s principal brief does not come close to following the
format mandated in rule 24 of the Utah Rules of Appellate
Procedure. See Utah R. App. P. 24(a) (requiring principal briefs to
contain specific sections appearing in a prescribed order). In
Witte’s brief, the “Statement of the Case” section curiously
appears after what is effectively his argument section, toward the
end 	of 	the 	brief. 	And 	rather 	than 	providing 	an 	objective,
non-argumentative recitation of the facts of record, Witte uses his
factual background section as a platform to restate his subjective
trial-level assertions, some of which contradict the district court’s
findings of fact. See, e.g., infra ¶ 39 & nn. 8–10. Moreover, most of
the facts relevant to the issues raised on appeal do not appear in
that section of Witte’s brief at all but have instead been woven,
frequently alongside extensive editorializing and absent larger
context, directly into the argument section. This has proved

Huynh v. Witte
20220160-CA 	16 	2026 UT App 150
particularly burdensome to untangle in a case where the district
court record exceeds 17,300 pages.
¶38 	Next, what is effectively the principal brief’s argument
section features an extensive and inappropriate overuse of bold
text 	and 	underlining 	that 	has proved 	distracting. 	Although
“[i]talics or boldface may be used for emphasis,” id. R. 27(a)(2),
their “unrestrained and unnecessary use” constitutes “a written
form of shouting” that is “simply inappropriate in an appellate
brief,” B.A.M. Dev., LLC v. Salt Lake County, 2004 UT App 34, ¶ 71
n.30, 87 P.3d 710 (Orme, J., dissenting). Further, despite the
district court’s admonitions, Witte has continued his practice of,
in the words of the court, “filing papers with lengthy footnotes for
no good reason other than to squeeze more words into a smaller
space.” See Utah R. App. P. 27(a)(1) (“The text must be double
spaced, 	except 	for 	matter 	customarily 	single 	spaced 	and
indented.”). 	To 	make 	matters worse, 	Witte’s principal 	brief
contains no fewer than 95 footnotes, several of which are nearly a
full page in length and contain substantive arguments scattered
throughout. Witte’s burying substantive legal contentions in a
cascade of footnotes, combined with the generally unfocused
nature of his presentation, has forced this court to expend an
inordinate amount of time simply trying to decipher the actual
issues presented. 	But 	navigating through the 	smoke 	of the
principal brief as best we can, we have identified two cognizable
issues presented for our review: (1) the rule 11 sanction requiring
Witte to retain counsel and (2) the modification of legal custody
of Son.7
7. To the extent Witte intended to advance additional issues on
appeal, those issues are inadequately briefed, and we do not reach
their merits. See Lamb v. Lamb, 2024 UT App 16, ¶ 17, 545 P.3d 273
(“A party may not simply point toward a pile of sand and expect
the court to build a castle. In both district and appellate courts, the
development of an argument is a party’s responsibility, not a
judicial duty.”) (quotation simplified).

Huynh v. Witte
20220160-CA 	17 	2026 UT App 150
¶39 	Lastly, we address another of Witte’s unfortunate practices
that he has carried over from the district court: the personal
attacks directed toward Huynh, her legal counsel, and the district
court. For example, Witte asserts that Huynh’s marriage to her
current 	husband 	began 	as 	“a 	secret 	concealed 	adulterous
relationship” and unnecessarily accuses her of “[a]dultery and
gold-digging.”8 He also characterizes her move to California as a
“straw 	relocation 	move-away 	scheme” 	and 	claims 	that 	she
“fabricated evolving debunked fictitious narratives about why
[she] 	relocated, 	including 	unpled, 	spontaneous, 	new 	false
smearing allegations during trial.”9 Witte has also directed vitriol
at Huynh’s legal team, claiming that one of her trial attorneys
(who, to be clear, is not named in the caption or body of this
opinion) was a “radical left-wing . . . activist” who suffered from
“severe alcohol, drug, mental health, and gender confusion
problems”; “stank of drugs and alcohol”; and “exhibited signs of
mental, psychological, and emotional instability.” He digresses to
unnecessarily accuse another of Huynh’s attorneys of various
misconduct, such as not disclosing Huynh’s “adultery” for many
years, “tampering with a lease” to conceal the identity of Huynh’s
husband, 	and 	“filing 	a 	fabricated 	story 	about 	a 	private
investigator accosting and frightening” Son. Finally, Witte targets
the district court, accusing it of being “apoplectic” that he had
washed makeup off Son10 and of acting “maliciously, repeatedly,
8. The district court found that although Huynh met her current
husband in 2012, they did not begin a romantic relationship until
after she filed for divorce from Witte in 2013.
9. The district court found that Huynh moved to California
“because the warmer climate was better for her parents’ health
and to take advantage of a job opportunity that provided training
and a route to advance into a better job, specifically, a financial
advisor.”
10. Neither party has indicated that Son’s gender identity does not
align with his biological sex or that he otherwise identifies with
(continued…)

Huynh v. Witte
20220160-CA 	18 	2026 UT App 150
and in knowing defiance of governing legal authorities.” Witte
also asserts that the court’s order that he retain counsel was
motivated by “retaliatory animus” toward his moral and religious
beliefs. See infra note 12.
¶40 	Such 	personal 	attacks 	are 	inappropriate 	in 	judicial
proceedings. 	As 	a 	licensed 	attorney, 	Witte 	remains 	fully
responsible 	for 	understanding 	and 	adhering 	to 	the 	Utah
Standards of Professionalism and Civility, and he appears to have
violated, at the very least, the first and third of those standards.
Standard 1 directs that “lawyers shall treat all other counsel,
parties, 	judges, 	witnesses, 	and 	other 	participants 	in 	all
proceedings in a courteous and dignified manner.” And standard
3 mandates that lawyers “shall not, without an adequate factual
basis, attribute to other counsel or the court improper motives,
purpose, or conduct” and must “avoid hostile, demeaning, or
humiliating words.” Standard 3 further cautions that filings
should never “disparage the integrity, intelligence, morals, ethics,
or personal behavior of an adversary unless such matters are
the LGBTQ+ community. Rather, Witte asserted at trial that
Huynh dressed Son “up as a prostitute.” The district court noted
that in support of this claim, Witte testified to one instance in
which Son arrived for parent time wearing makeup. But the court
observed that Witte had provided “poor quality” photographs in
which Son’s clothing, in the court’s assessment, was “not unusual
for a child [Son’s] age and the only makeup that can be seen is
fingernail polish on one or two fingers and the thumb.” The court
declined “to find that there’s anything improper about [Son]
having makeup or being dressed” in the manner shown in the
photographs. The court further stated that although “the way
both parties dealt with [that situation was] troubling,” the court
was “more disturbed” by Witte’s reaction to seeing Son in
makeup, which was “to wash this poor child off with a garden
hose rather than to deal with that in another manner.” In its
Findings of Fact and Conclusions of Law, the court did not side
with either parent on this issue, nor did the court reference the
issue in its best-interest analysis.

Huynh v. Witte
20220160-CA 	19 	2026 UT App 150
directly relevant under controlling substantive law.” Far from
presenting 	reasoned 	legal 	advocacy, 	Witte’s 	continued
disparagement of Huynh, her counsel, and the district court is a
breach 	of 	professional 	decorum 	that 	degrades 	the 	judicial
process.11
II. Rule 11 Sanction
¶41 	Witte 	challenges 	the 	district 	court’s 	sanction 	entered
pursuant to rule 11 of the Utah Rules of Civil Procedure requiring
him 	to 	obtain 	counsel. 	Witte 	characterizes the 	order 	as an
unconstitutional denial of his right to self-representation under
the Open Courts Clause of the Utah Constitution.12 He asserts that
11. We also note that the space used for unnecessary and
inappropriate personal attacks would have been better spent
developing actual legal arguments, particularly given this court’s
denials of Witte’s repeated requests to file overlength briefs.
12. Witte also asserts that the district court acted out of animus
toward his sincere religious beliefs and in an effort to curtail his
“petitional speech concerning transgender and LGBT matters”
when it ordered him to retain counsel and later modified legal
custody. Judge Scott addressed this claim when ruling on Witte’s
motion 	to 	disqualify 	Judge 	Parker. 	See 	supra 	note 	5. 	After
acknowledging Witte’s “deeply held beliefs about what is in the
best interest of” Son, she concluded that Witte had “not shown
any factual basis for his allegation that Judge Parker is biased or
prejudiced against him.” Rather, Judge Scott stated that Witte’s
accusations were based on the speculation “that Judge Parker
must be biased or prejudiced because he has ruled against him,”
and, quoting Boddell Construction Co. v. Robbins, 2009 UT 52, ¶ 35,
215 P.3d 933, she concluded that “bias or prejudice cannot be
inferred 	simply 	because 	Judge 	Parker 	exercised 	his 	broad
discretion in determining ‘the most fair and efficient manner to
conduct court business’ given the status of this highly contentious
case and his knowledge of the ‘attitudes, motives, and credibility
(continued…)

Huynh v. Witte
20220160-CA 	20 	2026 UT App 150
these violations resulted in “a profound, systematic, irreparable
taint and prejudice of a kind requiring all portions of proceedings
and 	adverse 	results 	challenged 	by 	[him] 	to 	be 	vacated.”
Alternatively, he argues that the court’s rule 11 analysis was
deficient and that the court’s imposition of a sanction amounted
to an abuse of discretion. We address each argument in turn.
A. 	Constitutional Rights
¶42 	As an initial matter, Witte is correct that civil litigants
generally have a right to self-representation. See Utah Const. art.
I, § 11 (“All courts shall be open, and every person, for an injury
done to the person in his or her person, property, or reputation,
shall 	have 	remedy 	by 	due 	course 	of 	law, 	which 	shall 	be
administered without denial or unnecessary delay; and no person
shall be barred from prosecuting or defending before any tribunal
in this State, with or without counsel, any civil cause to which the
person is a party.”) (emphasis added); Lundahl v. Quinn, 2003 UT
11, ¶ 4, 67 P.3d 1000 (per curiam) (“Individuals have a right to
represent 	themselves 	without 	being 	compelled 	to 	seek
professional assistance.”). But without any supporting authority,
Witte asserts that this right is “inviolate.” This is incorrect.
¶43 	The right of self-representation is not absolute; it, like most
constitutional rights, has its limitations. Even in the criminal
context, where the right of self-representation enjoys its most
robust constitutional protections,13 “the trial judge may terminate
of the parties.’” Because Witte has not appealed Judge Scott’s
ruling, we have no occasion to further address these conclusions.
13. The right to self-representation in the criminal context is
addressed in a separate provision of the Utah Constitution, see
Utah Const. art. I, § 12, and guaranteed by statute, see Utah Code
Ann. 	§ 	77-1-6(1)(a) 	(LexisNexis 	Supp. 	2025) 	(“In 	criminal
prosecutions the defendant is entitled to . . . appear in person and
defend in person or by counsel[.]”). In the federal context, the
(continued…)

Huynh v. Witte
20220160-CA 	21 	2026 UT App 150
self-representation by a defendant who deliberately engages in
serious and obstructionist misconduct.” Faretta v. California, 422
U.S. 	806, 	834 	n.46 	(1975). 	This 	is 	because 	“[t]he 	right 	of
self-representation is not a license to abuse the dignity of the
courtroom,” nor “is it a license not to comply with relevant rules
of procedural and substantive law.” Id. See United States v. Akers,
215 F.3d 1089, 1097 (10th Cir. 2000) (“When faced with a situation
of 	potential 	abuse, 	the 	district 	court 	may 	properly 	impose
restraints on the right to reject counsel to prevent the right from
being manipulated so as to obstruct the orderly procedure of the
courts.”) (quotation simplified); State v. Bridgewaters, 2025 UT App
184, ¶¶ 42–43, 585 P.3d 73 (holding that a criminal defendant may
forfeit the right to self-representation by “engag[ing] in extremely
dilatory conduct or abusive behavior” or may impliedly waive
that right for less egregious conduct so long as the defendant was
“warned that continuation of the unacceptable conduct will result
in a waiver of the right”) (quotation simplified), cert. granted, 591
P.3d 746 (Utah 2026).
¶44 	And in the civil context, our Supreme Court has recognized
that “[t]he courts of this state possess the powers necessary to
maintain the orderly disposition of matters brought before them,
including the power to levy sanctions and, in appropriate cases,
to hold in contempt the parties who appear before them,” Lundahl,
2003 UT 11, ¶ 15, and that an individual’s “privilege to access to
the courts will be preserved in direct proportion to her willingness
to accept the responsibilities accompanying that privilege,” id.
¶ 16. Cf. Griffith v. Griffith, 1999 UT 78, ¶ 13, 985 P.2d 255 (“The
summary jurisdiction which the court has over its attorneys as
officers of the court is inherent, continuing, and plenary and
ought to be assumed and exercised not only to maintain and
protect the integrity and dignity of the court, to secure obedience
to its rules and process, and to rebuke interference with the
right to self-representation in criminal cases is enshrined in the
Sixth Amendment to the United States Constitution; it has no civil
constitutional counterpart. See U.S. Const. amend. VI; Faretta v.
California, 422 U.S. 806, 822–35 (1975).

Huynh v. Witte
20220160-CA 	22 	2026 UT App 150
conduct of its business, but also to control and protect its officers,
including attorneys.”) (quotation simplified); Utah Code Ann.
§ 78A-2-201(3) (LexisNexis 2022) (“Every court has authority to
. . . provide for the orderly conduct of proceedings before it or its
officers[.]”). To that end, rule 83 of the Utah Rules of Civil
Procedure, for example, expressly authorizes courts to impose
restrictive orders on vexatious pro se litigants for the purpose of
curbing inappropriate conduct, including orders requiring such
litigants to obtain legal counsel before proceeding.14 See Utah R.
Civ. P. 83(b)(2) (“The court may, on its own motion or on the
motion of any party, after notice and an opportunity to be heard,
enter an order requiring a vexatious litigant to . . . obtain legal
counsel before proceeding in a pending action[.]”).
¶45 	Because 	Witte’s 	argument 	is 	premised 	on 	the 	faulty
assumption that the right to self-representation is “inviolate,” and
because he does not address limitations on that right, he has not
carried his burden of persuasion on appeal, and our analysis ends
here. See Erda Comm. Assoc. v. Baugh, 2025 UT 56, ¶ 41, 582 P.3d
810 (“A conclusory argument is not the type of reasoned analysis
that allows us to rule in a party’s favor. An appellant that fails to
devote adequate attention to an issue is almost certainly going to
fail to meet its burden of persuasion.”) (quotation simplified);
Utah 	R. 	App. 	P. 	24(a)(8). 	For 	now, 	we 	leave 	for 	future
determination any questions about the interplay between a civil
litigant’s 	right 	of 	self-representation 	and 	a 	court’s 	inherent
14. We note, however, that it appears that the tension between
rule 83 and a civil litigant’s right under the Utah Constitution to
proceed pro se is yet to be directly addressed by Utah’s appellate
courts. We also note that rule 83 does not apply to the current case
because it requires, among other things, a finding that “there is no
reasonable probability that the vexatious litigant will prevail on
the 	claim.” 	Utah 	R. 	Civ. 	P. 	83(c)(1)(B). 	Here, 	the 	court
commissioner 	could 	not 	“make 	a 	finding 	that 	there 	is 	no
reasonable probability that [Witte] will prevail on his Petition to
Modify.” And the district court ultimately determined that Witte
prevailed on two of the issues raised in the petition to modify.

Huynh v. Witte
20220160-CA 	23 	2026 UT App 150
authority 	to 	protect 	the 	judicial 	process 	from 	persistently
disruptive conduct by requiring retention of counsel.15
B. 	Rule 11 Analysis
¶46 	Rule 11 of the Utah Rules of Civil Procedure establishes
that 	by 	filing 	any 	paper 	with 	the 	court, 	an 	attorney 	or
unrepresented 	party 	certifies 	that 	the 	filing 	“is 	not 	being
presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation”;
that 	“the 	claims, 	defenses, 	and 	other 	legal 	contentions 	are
warranted by existing law or by a nonfrivolous argument for the
extension, 	modification, 	or 	reversal 	of 	existing 	law 	or 	the
establishment of new law”; that “the allegations and other factual
contentions 	have 	evidentiary 	support 	or, 	if 	specifically 	so
identified, 	are 	likely 	to 	have 	evidentiary 	support 	after 	a
reasonable opportunity for further investigation or discovery”;
and that “the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on
a lack of information or belief.” Utah R. Civ. P. 11(b). Rule 11
further provides that a district court may, upon the satisfaction of
certain conditions, “impose an appropriate sanction upon the
15. Witte also suggests that the district court’s rule 11 sanction was
a pretextual attempt to censor what the court perceived as
offensive opinions on LGBTQ+ issues, in violation of his First
Amendment right to free speech. But, as discussed above, Witte
does not challenge Judge Scott’s ruling on Witte’s motion to
disqualify Judge Parker, in which Judge Scott held that Witte had
“not shown any factual basis for his allegation that Judge Parker is
biased or prejudiced against him.” See supra note 12. Further, as
discussed below, the court’s detailing of the conduct prompting
the sanction did not include Witte’s personal opinions or religious
views. It is clear that the basis for the court’s sanctions was Witte’s
persistently disruptive conduct, which by itself was sufficient to
justify the court’s sanction.

Huynh v. Witte
20220160-CA 	24 	2026 UT App 150
attorneys, 	law 	firms, 	or 	parties” 	for 	violation 	of 	these
requirements. Id. R. 11(c).
¶47 	Witte contends that the district court’s sanction order fell
short of satisfying rule 11’s requirement to “describe the conduct
determined to constitute a violation of [rule 11] and explain the
basis for the sanction imposed.” Id. R. 11(c)(3). He characterizes
the 	court’s 	analysis 	as 	containing 	“only 	vague, 	general,
conclusory, ethereal aspersions,” and he asserts that the court did
not identify any “specific offending conduct that would justify
any 	finding 	of 	a 	rule 	11 	sanction.” 	We 	disagree 	with 	this
characterization.
¶48 	As explained by the district court, its decision to sanction
Witte under rule 11 was prompted by a multi-year pattern of
highly contentious and procedurally improper conduct. The court
found that Witte had “filed numerous papers with the Court
which have no support in the rules or the law”; had “repeatedly
attempted 	to 	circumvent 	the 	Court’s 	page 	limits, 	despite
warnings in the past, by filing papers with lengthy footnotes for
no good reason other than to squeeze more words into a smaller
space”; had filed “papers . . . replete with comments disparaging
[Huynh] and her current husband, as well as [Huynh’s] counsel”;
and had made “characterizations of the Court in his filings [that]
are at best combative and highly disrespectful.” The court further
found that “the sheer volume and tone of [Witte’s] inappropriate
communications to the Court and to counsel, even in the face of
efforts by the Court to correct his behavior, demonstrate that
[Witte] is acting out of malice and an intent to use the legal process
for punitive purposes.”
¶49 	As for specific examples of such conduct, the court’s order
incorporated by reference Huynh’s 18-page summary of all
Witte’s alleged violations of rule 11 since the court’s earlier
January 2016 admonishment of his conduct. See Golden Meadows
Props., LC v. Strand, 2011 UT App 76, ¶ 17, 249 P.3d 596 (holding
that the district court judge’s “incorporation of the facts set forth
in [the appellee’s] motion for sanctions into his order, combined

Huynh v. Witte
20220160-CA 	25 	2026 UT App 150
with his oral explanation of his decision, complied with the
requirements of rule 11 of the Utah Rules of Civil Procedure”),
cert. denied, 263 P.3d 390 (Utah 2011). The court also gave the
specific example of Witte’s Objection to Request to Submit for
Decision Rule 11 Sanctions, which the court found “clearly . . .
constituted 	an 	improper 	effort 	to 	make 	further 	substantive
argument on the merits of [Huynh’s] original motion after the
matter had been fully briefed and argued” and that disregarded a
“prior admonition not to use single-spacing for any purpose other
than quotation.”
¶50 	Witte’s argument fails to engage with this analysis. And
because he does not explain with any particularity how the court’s
analysis fell short of rule 11’s requirement, he has not carried his
burden of persuasion on this issue. See Big Game Forever v.
Peterson, 2024 UT App 78, ¶ 19, 551 P.3d 411 (“An appellant who
does not meaningfully engage with the district court’s reasoning
falls short of demonstrating any error on the part of the district
court.”) (quotation simplified).
¶51 	Witte 	next 	contends 	that 	the 	district 	court’s 	chosen
sanction of requiring him to hire counsel was “disproportionate”
and not authorized by rule 11. We again disagree.
¶52 	“Rule 11 gives trial courts great leeway to tailor the
sanction to fit the requirements of the particular case.” Golden
Meadows Props., 2011 UT App 76, ¶ 16 (quotation simplified). Rule
11 expressly authorizes “directives of a nonmonetary nature” so
long as the sanction is “limited to what is sufficient to deter
repetition of such conduct or comparable conduct by others
similarly situated.” Utah R. Civ. P. 11(c)(2). And district courts are
afforded “considerable discretion to determine what sanction will
be most effective to deter undesirable conduct.” Golden Meadows
Props., 2011 UT App 76, ¶ 16 (quotation simplified). See Archuleta
v. Galetka, 2008 UT 76, ¶ 7, 197 P.3d 650 (“Decisions regarding rule
11 sanctions are best left in the hands of the trial court.”).

Huynh v. Witte
20220160-CA 	26 	2026 UT App 150
¶53 	As a threshold matter, requiring a pro se litigant to hire
counsel to curb inappropriate and disruptive conduct in judicial
proceedings is not without precedent in the Utah Rules of Civil
Procedure. That remedy is expressly authorized in rule 83, which
governs vexatious litigants. See Utah R. Civ. P. 83(b)(2)–(3)
(stating that “[t]he court may, on its own motion or on the motion
of any party, after notice and an opportunity to be heard, enter an
order requiring a vexatious litigant to,” among other things,
“obtain legal counsel before proceeding in a pending action” or
“obtain legal counsel before filing any future claim for relief”).
Although rule 83’s requirements were not fully satisfied in this
case, see supra note 14, both rules 11 and 83 address inappropriate
and disruptive conduct. And as discussed above, district courts
have “considerable discretion” to fashion an appropriate sanction
for violations of rule 11, Golden Meadows Props., 2011 UT App 76,
¶ 16 (quotation simplified), including issuing “directives of a
nonmonetary 	nature,” 	Utah 	R. 	Civ. 	P. 	11(c)(2). 	Given 	this
framework, we reject Witte’s contention that the district court’s
sanction exceeded rule 11’s limits.
¶54 	Turning next to the specific facts of this case, it was not
until 	the 	court 	was 	asked 	to 	address Witte’s inappropriate
conduct for a third time that it determined that requiring Witte to
hire counsel was an appropriate sanction. The first instance was
in May 2015, when the court commissioner ruled on Huynh’s
motion to designate Witte as a vexatious litigant. Although the
commissioner did not designate Witte as such, the commissioner
warned Witte “to take notice that he is close to rising to the level
of a vexatious litigant in the volume of pleadings, and the
inappropriate contents of his pleadings” and instructed him to
“follow the [Utah Standards] of Professionalism and Civility.” But
this admonishment did nothing to curb Witte’s conduct.
¶55 	Next, in January 2016, in response to Huynh’s first motion
for rule 11 sanctions, the court held that Witte had violated rule
11 on 27 separate occasions since September 2014 by “submitting
pleadings for an improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation, as

Huynh v. Witte
20220160-CA 	27 	2026 UT App 150
well as submitting allegations that do not have evidentiary
support.” Although Huynh requested that Witte no longer be
allowed to proceed pro se, the court did not impose that sanction
at that time. Instead, the court ordered, among other things, that
the page limits for motions and memoranda be enforced, that
Witte seek court approval before submitting overlength filings,
and that any references to “nefarious intent, lying, collaboration,
or other unprofessional conduct” by Huynh’s counsel should “be
stricken from the record but the pleadings themselves will not be
stricken.” But this too did little to change Witte’s behavior. The
list and summary of Witte’s subsequent rule 11 violations over the
next two years filled 18 pages.
¶56 	Finally, after being asked to address Witte’s misconduct for
a third time, the district court determined that an order requiring
Witte to hire counsel was “entirely justified” given his “history in
this matter.” The court noted that the commissioner had also
“articulated his frustrations and difficulties trying to get [Witte]
to 	follow 	the 	rules, 	procedures 	and 	directions” 	and 	had
recommended that Witte be required to obtain counsel under rule
11 as “the only solution to the difficult issues presented by [his]
behavior.” The court also specifically found that Witte could
afford counsel, that his time would be better spent representing
his 	own 	clients, 	and 	that 	he 	“would 	benefit 	by 	having
experienced, 	objective 	counsel 	represent 	and 	advise 	him 	in
resolving the issues raised in the current proceedings.” The court
further stated that the sanction would benefit the court, Huynh,
and 	Huynh’s 	counsel 	because 	they 	would 	be 	spared 	“the
necessity 	of 	contending 	directly 	with 	[Witte’s] 	personal
animosity.”
¶57 	In sum, given this extensive history of Witte’s failure to
abide by the court’s warnings and prior orders, it was entirely
reasonable for the court to resort to the drastic measure of no
longer permitting Witte to represent himself. The court thus acted
within its “considerable discretion” when it ordered Witte to hire
counsel as a rule 11 sanction. See Golden Meadows Props., 2011 UT
App 76, ¶ 16 (quotation simplified).

Huynh v. Witte
20220160-CA 	28 	2026 UT App 150
III. Legal Custody
¶58 	Next, 	Witte 	argues 	that 	the 	district 	court 	erred 	by
modifying the Decree’s award of joint legal custody of Son when
the issue was never formally raised in the pleadings. Although
Witte’s original and amended petitions to modify did seek
modification of physical custody, he never expressly sought a
change to the joint legal custody he and Huynh had stipulated to
in the Decree. And Huynh had withdrawn her own petition to
modify, which in any event did not seek modification of legal
custody, long before trial. Notably, Witte does not—at least not
meaningfully—challenge the court’s underlying analysis that
there 	was 	a 	material 	change 	in 	circumstances 	warranting
reconsideration of legal custody and that modification was in
Son’s best interest.16 Rather, his challenge is procedural, arguing
that the court misapplied rule 15(b) of the Utah Rules of Civil
16. Witte does suggest that the district court’s modification of
legal custody improperly violated the stipulated terms of the
Decree. He also asserts that the court “lacked sufficient evidence,
facts, law, connecting rationale, [and an] Evaluator report . . . to
properly justify changing joint legal custody to sole legal custody
for Huynh.” But Witte’s arguments on these points are limited to
conclusory statements that do not provide, much less analyze, the
relevant law or meaningfully engage with the district court’s
reasoning. See Utah R. App. P. 24(a)(8) (“The argument must
explain, with reasoned analysis supported by citations to legal
authority and the record, why the party should prevail on
appeal.”); State v. Nelson, 2015 UT 62, ¶ 40, 355 P.3d 1031 (“Bald
assertions and platitudes are not enough to satisfy an appellant’s
burden to provide an adequate argument on appeal.”); Allen v.
Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (“An appellate court is not a
depository in which a party may dump the burden of argument
and research. A petitioner must plead his claims with sufficient
specificity for this court to make a ruling on the merits.”)
(quotation simplified). Accordingly, we have no occasion to
address these arguments further.

Huynh v. Witte
20220160-CA 	29 	2026 UT App 150
Procedure when it determined that the issue of legal custody had
been tried by consent.
¶59 	Rule 15(b) states, in relevant part,
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.
Utah R. Civ. P. 15(b)(1). Thus, under rule 15(b), “implied consent
to try an unpleaded 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 appears that the parties
understood the evidence is to be aimed at the unpleaded issue.”
In re A. Dean Harding Marital & Family Trust, 2023 UT App 81,
¶ 108, 	536 	P.3d 	38 	(quotation 	simplified). 	“The 	test 	for
determining whether pleadings should be deemed amended
under [rule] 15(b) is whether the opposing party had a fair
opportunity to defend and whether it could offer additional
evidence if the case were retried on a different theory.” Hill v.
Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929 (quotation
simplified). 	In 	other 	words, 	“in 	determining 	whether 	an
unpleaded issue has been tried by implied consent, the court must
consider whether the opposing party had adequate notice of the
issue and an opportunity to meet it.” Win-Win Invs. LLC v. Dutson,
2021 UT App 18, ¶ 20, 483 P.3d 64 (quotation simplified).
¶60 	In determining that the issue of legal custody had been
tried by consent, the district court stated that “[b]y repeatedly
attacking [Huynh’s] decisions and choices as a parent in his
Petition to Modify and Amended Petition to Modify, . . . Witte has
raised the issue of legal custody of [Son] in his pleadings.” To

Huynh v. Witte
20220160-CA 	30 	2026 UT App 150
provide a few examples, the court listed Witte’s allegations that
Huynh had “demonstrated poor judgment, erratic behavior, and
an unstable lifestyle”; had “become involved with a circle of
radical, militant activists sympathetic to homosexual and bisexual
views who are hostile to natural fathers”; had “dressed up [Son]
in homosexual cross-dressing attire[, including] makeup, drag,
female clothing, eyeliner, lipstick, nail polish, etc. in the manner
of a Southeast Asian ladyboy”; and had broken out in a “sudden
and violent outburst of infantile, profane rage.” The court also
pointed out that the commissioner had certified the issue of legal
custody for trial, that Witte had not objected to that issue being
certified, and that Witte was the first to present evidence at trial
on that issue in the form of his own testimony. The court
concluded that “the essence of all that is that the issue of legal
custody was brought up both in the petitions, in the certification
order by the commissioner, and then tried by consent of the
parties.”
¶61 	Witte asserts that the district court “knowingly defied
governing precedents cited to it and [his] express nonconsent” to
the issue of legal custody being tried. But apart from making these
bald assertions, Witte does not meaningfully engage with the
court’s rationale behind its finding that the issue was tried by
consent, and thus he has not overcome the “broad deference” to
which the court’s decision is entitled. Pilot v. Hill, 2019 UT 10, ¶ 9,
437 P.3d 362. See Big Game Forever v. Peterson, 2024 UT App 78,
¶ 19, 551 P.3d 411 (“An appellant who does not meaningfully
engage 	with 	the 	district 	court’s 	reasoning 	falls 	short 	of
demonstrating any error on the part of the district court.”)
(quotation simplified). In a lengthy footnote, Witte cites a string
of statutes and caselaw that he claims the court “knowingly
defied.” But apart from one-sentence parentheticals summarizing
each citation, Witte has entirely failed to analyze how each cited
case or statute applies to the case at hand. See Wilson v. Educators
Mutual Ins. Ass’n, 2018 UT App 155, ¶ 12, 436 P.3d 144 (“An
appellant must cite the legal authority on which its argument is
based and then provide reasoned analysis of how that authority
should apply in the particular case, including citations to the

Huynh v. Witte
20220160-CA 	31 	2026 UT App 150
record where appropriate.”) (quotation simplified). Apart from
pointing to his objection on the first day of trial to the issue being
tried 	(again, 	absent 	reasoned 	analysis), 	Witte 	also 	has 	not
addressed 	the 	rationale 	that 	the 	court 	gave 	supporting 	its
determination that the issue of legal custody had been tried by the
consent of the parties despite Witte’s assertion to the court “that
he ha[d] not consented to the issue.”
¶62 	Witte also has not demonstrated that he lacked “adequate
notice of the issue” of legal custody or “an opportunity to meet
it.” Win-Win Invs., 2021 UT App 18, ¶ 20 (quotation simplified).
Although he asserts that Huynh failed to make disclosures
relating to legal custody under rule 26 of the Utah Rules of Civil
Procedure, he does not explain how his preparation for trial was
thereby compromised other than asserting, without relevant
citations to the record or further explanation, that the court
“expressly disallowed any supplementary discovery or use of
new witnesses, evaluators, or experts for rebuttal or Huynh’s . . .
belated trial quest for sole legal custody.” That omission is fatal to
his argument, especially given that physical custody was already
squarely at issue at trial and there is substantial overlap between
the two inquiries. For instance, district courts consider the same
factors when deciding whether modification of either physical or
legal custody is in the best interest of the child. See Utah Code
Ann. § 81-9-208(4)(a) (LexisNexis Supp. 2025) (“In determining
whether the best interest of a child will be served by either
modifying or terminating the joint legal custody or joint physical
custody order, the court shall, in addition to other factors the court
considers relevant, consider the factors described in Sections
81-9-204 and 81-9-205.”) (emphasis added). And as noted by the
district court, Witte was already prepared to discuss tensions in
the existing co-parenting arrangement regarding Son’s clothing
and alleged wearing of makeup. In light of all this, Witte also has
not carried his burden of persuasion on this point.

Huynh v. Witte
20220160-CA 	32 	2026 UT App 150
IV. Attorney Fees
¶63 	On the last day of the bench trial, October 27, 2021, the
court awarded Huynh attorney fees “over the joint and legal
custody issue” and asked her counsel to submit an affidavit of fees
within 60 days. Huynh did not submit the affidavit within that
timeframe. 75 days later, on January 10, 2022, the court entered its
written Findings of Fact and Conclusions of Law in which it
awarded Huynh and Witte attorney fees on the issues the court
determined they had each prevailed on at trial. The court ordered
the parties to “submit affidavits on attorney fees taking into
consideration fees already awarded on some of these issues.”
Notably, in its written order, the court did not give a deadline for
the parties to do so. But neither party filed their fee affidavits for
nearly two years until this court, in an effort to perfect appellate
jurisdiction, ordered the parties to file the affidavits within 28
days. The parties complied with this deadline, and at an April
2024 hearing, the district court rescinded its earlier attorney fees
awards, stating that “[y]ears went by without either party filing
any attorney fee affidavit or motions” since it, from the bench,
“gave sixty days to submit any fee affidavits” and since it entered
its 	written 	Findings of 	Fact 	and 	Conclusions 	of 	Law. 	This
rescission of the attorney fees award is the subject of Huynh’s
cross-appeal. We hold that the district court did not exceed its
discretion here.
¶64 	Under rule 54(b) of the Utah Rules of Civil Procedure, “any
[non-final] order or other decision . . . may be changed at any time
before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.” In other words, “while a
case remains pending before the district court prior to any appeal,
the court is free to reconsider an earlier decision, even one entered
by a prior judge, either sua sponte or at the suggestion of one of
the parties.” Fleming v. Dullanty, 2025 UT App 128, ¶ 47, 579 P.3d
365 (quotation simplified). A district court also “has broad
discretion” under the law of the case doctrine “to revisit earlier
rulings before a case has proceeded to a final judgment.” Jordan

Huynh v. Witte
20220160-CA 	33 	2026 UT App 150
Constr., Inc. v. Federal Nat’l Mortgage Ass’n, 2017 UT 28, ¶ 29, 408
P.3d 296.
¶65 	Huynh attempts to skirt this principle, arguing that this
court’s 	order 	directing 	the 	parties 	to 	submit 	attorney 	fees
affidavits within 28 days implicated the mandate rule and thus
“established the ‘law of the case’ when it set new deadlines for the
parties’ affidavits.” She asserts that the district court thus “lacked
the authority to vacate or override those deadlines.” Under the
mandate rule, “the decisions of an appellate court become the law
of the case and cannot be reconsidered on remand.” Blocker v.
Blocker, 2019 UT App 82, ¶ 9, 444 P.3d 541 (quotation simplified).
But under the unique procedural posture of this case, because this
court had not yet acquired jurisdiction over the appeal when it
issued the order containing the 28-day deadline in an effort to
perfect the appeal, the mandate rule does not apply to prevent
modification of the district court’s earlier attorney fees award.
¶66 	Subject to a few narrow exceptions that do not apply here,
appellate courts do not have jurisdiction to consider an appeal
unless it is taken from a final judgment or order. See Loffredo v.
Holt, 2001 UT 97, ¶¶ 10, 15, 37 P.3d 1070. Indeed, an earlier order
from this court expressly explained that “jurisdiction in this court
has not yet been perfected” and that the appeal was thus “stayed
pending the entry of a final, appealable order and the resolution
of postjudgment motions that toll time to appeal.” And after the
district court resolved Witte’s motion for a new trial, this court, in
response to a filing by Witte, reiterated in an order dated January
2023 that the appeal “remain[ed] stayed . . . pending the entry of
a final, appealable order, including the contemplated award of
attorney fees.” Finally, after nearly a year had passed without any
progress being made in the district court toward entry of the
attorney fees awards, this court issued the order directing the
parties to “file fee affidavits in the district court within 28 days”
and indicating that failure to do so would result in dismissal of
the appeal without prejudice. The purpose of this order was
merely to advance the cause of perfecting appellate jurisdiction.
And because this court had not yet acquired jurisdiction over the

Huynh v. Witte
20220160-CA 	34 	2026 UT App 150
merits of the appeal, our administrative directive could not
constitute a binding mandate. With no final judgment yet in place,
the district court was thus free to revisit its earlier grant of
attorney fees.
¶67 	Huynh 	alternatively contends that 	the 	district 	court’s
decision to rescind the attorney fees award was an abuse of
discretion because any delay on her part in submitting the
affidavits was “entirely excusable.”17 She points to the court’s
written Findings of Fact and Conclusions of Law, which the court
entered after the 60-day timeframe the court originally imposed
from the bench had expired, and which she asserts “represented
itself as awarding fees as of that date, and imposed no deadline to
filing the affidavit.” She further contends that her delay in
submitting 	the 	affidavits 	was 	excusable 	because 	her 	efforts
throughout the year 2022 were focused on opposing Witte’s
motion for a new trial and his motion to disqualify Judge Parker.
Huynh’s 	arguments 	fall 	short 	of 	establishing 	an 	abuse 	of
discretion by the district court.
¶68 	By the time the district court reversed its attorney fees
award, approximately two and a half years had passed since it
first directed Huynh to submit fee affidavits within 60 days and
about two years and three months had passed since the court’s
written order directing the parties to submit fee affidavits—albeit
without 	an 	express 	deadline. 	Even 	accepting 	Huynh’s
explanation that her counsel was otherwise occupied in 2022 with
defending the court’s rulings against Witte’s post-trial motions, a
two-year delay is extraordinary—especially given the court’s
verbal 60-day deadline. Further, the post-trial motions were all
resolved in 2022 but Huynh still did not submit the requested
17. Huynh also argues that the district court misinterpreted rule
73 of the Utah Rules of Civil Procedure. But because the court’s
timeliness ruling under rule 73 was an alternative basis for its
decision, and because we ultimately hold that the court did not
abuse its discretion in rescinding its fee award, we need not reach
this argument.

Huynh v. Witte
20220160-CA 	35 	2026 UT App 150
affidavits until November 2023. Indeed, in January 2023, this
court notified the parties that the outstanding attorney fees had to
be resolved in the district court before we could obtain appellate
jurisdiction. But again, for nearly another year, neither party
submitted the requested fees affidavits until this court ordered
them to do so within 28 days. In light of all this, we cannot say the
district court exceeded its “broad discretion” in revisiting the
issue of attorney fees after finally receiving the affidavits and
upon consideration of Witte’s motion to reconsider. See Jordan
Constr., 2017 UT 28, ¶ 29.
CONCLUSION
¶69 	The 	district 	court 	neither 	violated 	Witte’s 	right 	to
self-representation under the Utah Constitution nor abused its
discretion under rule 11 of the Utah Rules of Civil Procedure
when it ordered Witte to retain counsel. And because Witte has
not meaningfully challenged the court’s reasoning in determining
that modification of legal custody had been tried by the consent
of the parties, he has not carried his burden of persuasion on this
issue. Lastly, the court did not exceed its discretion when it
rescinded its prior award of attorney fees.
¶70 	Affirmed.