Pope v. Pope

• Decision Date: 09 February 2017
• Docket Number: No. 20150869-CA,20150869-CA
• Parties: Greg J. POPE, Appellant, v. Carmen R. POPE, Appellee.
• Court: Utah Court of Appeals

392 P.3d 886

Greg J. POPE, Appellant,

v.Carmen R. POPE, Appellee.

No. 20150869-CA

Court of Appeals of Utah.

Filed February 9, 2017

Marshall Thompson and Emily Adams, Salt Lake City, 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.

Memorandum Decision

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.

¶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) ).

¶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] 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." 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 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...