Hinds v. Hinds-Holm , 2022 UT App 13 ( 2022 )

2022 UT App 13THE UTAH COURT OF APPEALS
BRADLEY HINDS,
Appellee,
v.
RACHEL HINDS-HOLM,
Appellant.
Opinion
No. 20200586-CA
Filed January 27, 2022
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 174905091
Theodore R. Weckel, Attorney for Appellant
Jonathan G. Winn, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
MORTENSEN, Judge:
¶1 Bradley Hinds (Father) and Rachel Hinds-Holm (Mother)
married and had a son (Child). After the parties divorced, the
district court awarded custody of Child to Father. Mother
challenges the court’s discretion in weighing the statutory
custody factors and the court’s denial of her motion to continue
the trial. We affirm.
Hinds v. Hinds-Holm
BACKGROUND1
¶2 Father and Mother married in May 2015. Within a few
weeks of the wedding, they experienced marital difficulties, and
Mother left the family home. But after discovering Mother was
pregnant, the parties reconciled, and Child was born in February
2016.
¶3 Father, who was in the military, was transferred to New
Mexico, where Mother and Child joined him. For a period of
about fifteen months, Mother and Father shared the parental
duties of raising Child. However, Father contended that Mother
interfered in his relationship with Child by not including him in
medical decisions, not supporting his family’s relationship with
Child, and giving contact with her mother (Grandmother)
priority over his involvement with Child.
¶4 In June 2017, Father reported an incident of domestic
violence. Father alleged “that he was physically assaulted by
[Mother] and [Grandmother] resulting in a bruise on his arm,
that he called the police, that base personnel intervened, and that
the incident was investigated as domestic violence perpetrated
by [Mother].” Mother claimed that “she was yelled at and
verbally abused by [Father] during that episode.” While the
report from the military labeled Mother as the perpetrator, it
determined that the incident “did not meet the criteria for
physical maltreatment and entry into” the military’s database.
(Cleaned up.)
1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the district court’s findings, and therefore
recite the facts consistent with that standard.” Nebeker v. Orton,
2019 UT App 23, n.1, 438 P.3d 1053 (cleaned up).
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¶5 Mother then left New Mexico with Child to live with
Grandmother in Utah. Thereafter, Father had difficulty reaching
Mother and was unable to have contact with Child until
September 2017, shortly after he filed for divorce in Salt Lake
City, Utah. Under a temporary custody agreement reached by
the parties and approved by the court, Mother was awarded sole
physical custody, and the parties shared joint legal custody.
Pursuant to this arrangement, “[t]he parties were ordered to
cooperate with each other in terms of making decisions about
the minor child, his health care, his education, and other
decisions relating to the parties’ joint exercise of legal custody.”
¶6 However, on at least two occasions, Mother “declined to
follow either something she and [Father] agreed to or something
she was ordered to do by” the court commissioner. In December
2017, Father filed for an order to show cause in which he raised
multiple issues regarding payment of certain expenses and
Mother’s failure to follow court orders about joint custody
arrangements.
¶7 In early April 2018, the parties attended mediation but
were unable to reach an agreement. About a week later,
Mother’s first attorney withdrew “as a result of [Mother’s]
conduct that appear[ed] to be in bad faith.”
¶8 Mother hired a second attorney, and the parties attended
a hearing on Father’s first motion for an order to show cause in
May 2018. The court commissioner ruled in Father’s favor,
ordering Mother to, among other things, involve Father in
daycare and medical decisions regarding Child and to follow
parent-time orders.
¶9 In September 2018, the commissioner ruled in Father’s
favor on a second motion for an order to show cause, which also
concerned matters of parent-time and shared expenses. In that
order, the commissioner warned Mother about the consequences
of future violations: “The Court admonishes [Mother] that if a
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third Order to Show Cause is raised before the Court for her
inability to facilitate [Father’s] ordered parent-time, the Court
will sentence [Mother] to five days of jail for every count of
contempt for parent-time which is missed.” The commissioner
also ordered Mother to respond to all discovery requests.
¶10 In September 2018, Mother’s second attorney withdrew as
counsel. That attorney stated that she was “incredibly
frustrated” with Mother and Mother was “acting in bad faith.”
¶11 Later that month, the court ordered that a custody
evaluation be conducted by a licensed clinical social worker
(Evaluator). The court ordered the parties to “cooperate as
reasonably requested by” Evaluator, including participating in
appointments and “[s]ubmission of any documents, names of
collateral contacts, and other pertinent material for review
during the first month of the evaluation process.” Mother did
not comply with the evaluation order. Specifically, she (1) did
not timely return the completed evaluation agreement; (2) did
not timely provide the initial parenting questionnaire; (3) did not
fully complete the parenting questionnaire when she did return
it; (4) was dismissive concerning the information requested by
Evaluator; (5) provided no helpful information by merely
answering “yes” or “no” to Evaluator’s questions or by telling
Evaluator, “Ask [Father], this is [Father’s] responsibility not
mine”; (6) was slow in providing information; and (7) failed to
provide Evaluator all the information requested.
¶12 In December 2018, Mother hired a third attorney for the
limited purpose of “settling and preparing the final documents.”
¶13 In May 2019, as relevant here, the commissioner certified
for trial the determination of physical custody, legal custody,
and parent-time. The commissioner also heard Mother’s request
to reopen discovery to appoint a rebuttal expert to Evaluator, but
the commissioner “declined to rule on it and reserved the issue
to be raised by [Mother] before” the judge. Moreover, the
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commissioner ordered Mother to “complete the outstanding
discovery requests,” as the commissioner had ordered in
September 2018, and “provide her responses” to Father within
twenty-one days. Subsequently, the parties agreed to proceed by
informal trial, see Utah R. Jud. Admin. 4-904, and the matter was
referred back to the commissioner. A trial was scheduled for
September 4, 2019.
¶14 In August 2019, Father filed a third motion for an order to
show cause, alleging that Mother was not observing ordered
parent-time and had failed to include Father in medical
decisions. On August 28, Mother requested that the trial be
continued, which the commissioner granted, resulting in a new
trial date of November 5. In early September, Mother informed
the commissioner that she no longer agreed to the informal trial,
and the commissioner recommended that the parties contact the
district court for a trial date. Mother’s third attorney withdrew in
January 2020.
¶15 After the court scheduled a trial for March 9, Mother
hired a fourth attorney on February 11. But he moved for
permission to withdraw just fifteen days later, stating, “This
withdrawal is done at the request of [Mother], her having
knowledge of pending trial date on March 9, 2020. There has
been a complete breakdown of attorney-client relationship
which makes it impossible for counsel to be provided. [Mother]
has indicated that she is planning to represent herself Pro Se at
trial.” On February 27, the court entered an order granting the
motion, stating that the pending trial of March 9 would not be
continued.
¶16 On the morning of trial, Mother, proceeding pro se,
informed the court that she had filed a motion to continue on
February 26 but that the court clerks informed her that the
motion had never been received. She then made an oral motion
to continue so that she could retain counsel. The judge noted that
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Mother’s fourth attorney “represented . . . that [Mother] wanted
him to withdraw, that it was at [Mother’s] request that he was
withdrawing, . . . that [Mother] understood that the trial would
not be continued, and that [Mother] understood that [she] would
be representing [herself] at the trial.” Mother responded that
when she asked him to withdraw, she thought she would still
“be able to have [someone] that would be able to advocate and
be there for” her. The court denied the motion.
¶17 At trial, as a threshold matter, the parties agreed that a
joint custody arrangement “was not feasible” or in Child’s best
interest. Thus, Mother and Father differed only as to which of
them should receive sole legal and physical custody. Because the
parties lived more than 1,000 miles apart and had an
acrimonious relationship, the court determined that joint
custody was, indeed, not feasible.
¶18 The court heard testimony from Father, Mother, and
Evaluator. Evaluator provided extensive testimony concerning
the best interest of Child in light of the statutory factors.
Evaluator opined it was in Child’s best interest for Father to be
awarded sole legal and physical custody of Child, with Mother
receiving parent-time.
¶19 The court was “persuaded” (1) that Evaluator “did a
thorough and careful evaluation that included an appropriate
analysis of all the pertinent factors” and (2) “by a preponderance
of the evidence that [Evaluator’s] expert opinions [were] in the
best interests of the minor child in this case.”
¶20 In reaching the conclusion that it was in Child’s best
interest that Father be awarded sole legal and physical custody,
the court noted that it had not “delegate[d] decision-making
responsibility” to Evaluator but had conducted “an independent
analysis on the custody factors” set forth in Utah Code section
30-3-10(2) and applied “the evidence presented at trial” to arrive
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at a determination of Child’s best interest. The court then
proceeded to address the custody factors.
¶21 The court found the following factors weighed in favor of
Father:
• Domestic violence, see Utah Code Ann. § 30-3-10(2)(a)
(LexisNexis 2019): Despite the evidence being in dispute,
the court determined that this factor weighed in favor of
Father based on Father’s resulting injury, military
documents listing Mother as the perpetrator, and
Evaluator’s investigation into the incident.
• Developmental needs of Child, see id. § 30-3-10(2)(b): Even
though both parties unquestionably loved Child, the court
reasoned that this factor weighed in favor of Father
because evidence was presented that Mother was “not
interested in [Child] having an emotional father-son
attachment to [Father], and to [the] contrary [had] taken
steps to prevent or interfere with such an attachment.”
The court noted that there was no evidence that Father
“would interfere” with Child’s relationship with Mother.
The court concluded that it was “manifestly in [Child’s]
best interests to have an emotional bond and supportive
parent-child relationship with both parents” and that goal
was more likely to be achieved if custody was awarded to
Father than if it was awarded to Mother.
• Parent’s capacity and willingness to function as a parent,
see id. § 30-3-10(2)(c): Overall, this factor weighed “very
strongly” in favor of Father. The court agreed with
Evaluator that if Father “were awarded sole custody, he
would cooperate better in terms of facilitating parent-time
with [Mother] than she would in facilitating parent-time
with him.” The court also found that there had “been a
frustrating pattern throughout the pendency of this action
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of [Mother] agreeing to do things, or being ordered to do
things, and then almost immediately refusing to follow
through with agreements she made or Court orders she
was given.”
• Wishes and concerns of Child, see id. § 30-3-10(2)(p):
While Mother tried to portray in her testimony that Child
did not like Father, the court expressed concern that any
dislike Child had toward Father was “the product of
[Mother] instilling negative feelings in the mind of [Child]
against [Father].” And given the court’s impression that
Mother was attempting to manipulate Child, it found that
this factor militated in favor of Father.
• Any other relevant factor, see id. § 30-3-10(2)(r): This factor
tilted to Father, the court concluded, because if Father was
“awarded sole legal and physical custody, he [would]
likely cooperate to the extent necessary to ensure that
[Mother had a] bond and relationship with [Child].” “But
based on [Mother’s] pattern of behavior throughout this
action,” the court found it was “more likely than not that
if sole legal and physical custody were to be awarded to
[Mother], she would not cooperate to support the parent-
child relationship and bond between [Father] and
[Child].” And because it was “in [Child’s] best interest to
have a bond with both parents, and since joint custody
[was] not feasible,” the court found that the best way to
ensure Child’s best interests were protected was “by
awarding [Father] sole legal and physical custody with
[Mother] to enjoy parent-time.”
¶22 The court found the following factors weighed in favor of
Mother:
• Child’s interaction and relationship with extended family,
see id. § 30-3-10(2)(l): This factor weighed in favor of
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Mother because Child had a “strong relationship” with
Grandmother.
• Parent who has been the primary caretaker, see id. § 30-3-
10(2)(m): This factor weighed in favor of Mother because
she had primary custody during temporary orders.
• Child’s bond with parent, see id. § 30-3-10(2)(q): “This
factor [did] not strongly militate for or against either
parent” but “[t]o the extent that [Mother had] been the
primary caretaker under the temporary orders, this factor
would likely militate in her favor.”
¶23 The court concluded these factors favored neither party:
• Past conduct and moral character of the parent, see id.
§ 30-3-10(2)(d): The court noted that while evidence of
Mother’s prior criminal convictions was presented, those
convictions had, according to Mother, been expunged,
and Father had presented no evidence to the contrary.
Stating that it would not consider expunged charges, the
court determined this factor weighed in neither party’s
favor.
• Relinquishment of custody or parent-time, see id. § 30-3-
10(2)(h).
• Duration and depth of desire for custody or parent-time,
see id. § 30-3-10(2)(i).
• Religious compatibility with Child, see id. § 30-3-10(2)(j).
• Parent’s financial responsibility, see id. § 30-3-10(2)(k).
• Happiness of Child in previous parenting arrangements,
see id. § 30-3-10(2)(n).
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¶24 After weighing these factors, the court entered the divorce
decree, awarding Father sole legal and physical custody and
Mother parent-time as set forth by Utah Code section 30-3-37(6).
¶25 Two days after the trial, Mother’s fifth attorney entered a
limited appearance to assist Mother with filing a rule 52 motion2
to amend the findings of fact and conclusions of law and a rule
59 motion3 for a new trial. The court denied both motions, ruling
Mother raised nothing in them “that she could not have raised
earlier” and that they were “impermissible motions to
reconsider” lacking “substantive merit.” Mother appeals.
ISSUES AND STANDARDS OF REVIEW
¶26 Mother asserts that the district court erred in applying the
statutory custody factors and Utah case law when it found that it
was in the best interest of Child to award Father full custody.
“We review custody determinations under an abuse of
discretion standard, giving the district court broad discretion to
make custody awards.” Nebeker v. Orton, 2019 UT App 23, ¶ 15,
438 P.3d 1053 (cleaned up). And “we will not disturb the district
court’s judgment unless we determine the district court has
2. “Upon motion of a party filed no later than 28 days after entry
of judgment the court may amend its findings or make
additional findings and may amend the judgment accordingly.”
Utah R. Civ. P. 52(b).
3. Mother did not identify the particular subsection of rule 59(a)
on which she rested her motion but argued that the court denied
her due process rights as a pro se litigant in various ways. Thus,
it appears she argued for a new trial because of an “irregularity
in the proceedings of the court . . . or opposing party, or any
order of the court, or abuse of discretion by which a party was
prevented from having a fair trial.” See Utah R. Civ. P. 59(a)(1).
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exceeded the scope of permitted discretion or has acted contrary
to law.” Id. (cleaned up).
¶27 Mother also alleges that she was denied the right to a fair
trial when the district court denied her motion to continue the
trial. “We review a trial court’s decision on a motion to continue
for an abuse of discretion.” Vaughan v. Romander, 2015 UT App
244, ¶ 6, 360 P.3d 761. “Indeed, courts have substantial discretion
in deciding whether to grant continuances, and their decisions
will not be overturned unless that discretion has been clearly
abused. Stated differently, a district court’s denial of a motion to
continue is an abuse of its discretion only if its decision is clearly
unreasonable and arbitrary.” Clarke v. Clarke, 2012 UT App 328,
¶ 19, 292 P.3d 76 (cleaned up).
ANALYSIS
I. Custody Determination
¶28 Mother first challenges the award of full custody to
Father, arguing that the district court misapplied Utah common
law in weighing the factors.4 We disagree with Mother.
4. While the specific contours of her argument on appeal are
difficult to follow, Mother also appears to assert that there was
insufficient evidence to support the court’s factual findings with
regard to the statutory factors because she presented contrary
evidence. “The factual findings of the district court will not be
disturbed unless they are clearly erroneous by being in conflict
with the clear weight of the evidence. But the existence of
conflicting evidence is not sufficient to set aside a district court’s
finding.” Nebeker, 2019 UT App 23, ¶ 16 (cleaned up). “The pill
that is hard for many appellants to swallow is that if there is
evidence supporting a finding, absent a legal problem—a fatal
(continued…)
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¶29 In the context of determining custody, the court analyzes
the child’s best interest through the factors found in Utah Code
section 30-3-10(2) in light of the evidence. “Generally, it is within
the trial court’s discretion to determine, based on the facts before
it and within the confines set by the appellate courts, where a
particular factor falls within the spectrum of relative importance
and to accord each factor its appropriate weight.” Hudema v.
Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. The “court’s
discretion stems from the reality that in some cases the court
must choose one custodian from two excellent parents, and its
proximity to the evidence places it in a more advantaged
position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209,
(…continued)
flaw—with that evidence, the finding will stand, even though
there is ample record evidence that would have supported
contrary findings.” Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5,
217 P.3d 733 (cleaned up). The district court’s “mission” is “to
consider and weigh all the conflicting evidence and find the
facts.” Id. Thus, even though “contrary facts might have been
found from all the evidence,” we defer to the “court’s pre-
eminent role as fact-finder,” and we “take the findings of fact as
our starting point, unless particular findings have been shown
. . . to lack legally adequate evidentiary support.” Id. In this case,
Mother brings no direct challenge to any specific finding.
Indeed, in her brief, Mother argued that the “most egregious
fatal flaws” were not in the court’s findings of fact but in the
court’s “improperly weigh[ing]” the statutory factors. And
Mother confirmed at oral argument that it was “correct” that she
was not challenging the findings of fact made by the district
court. Nevertheless, both in her briefs and at oral argument,
Mother highlighted facts contrary to the district court’s findings.
So to be clear, without a direct challenge to any specific finding,
we consider the district court’s findings as established and view
the contrary evidence as essentially immaterial.
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1214 (Utah 1996). Thus, a custody determination “may
frequently and of necessity require a choice between good and
better.” Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982).
¶30 While the district court is accorded discretion in weighing
these factors, “it must be guided at all times by the best interests
of the child,” see Tucker, 910 P.2d at 1214, and it “must set forth
written findings of fact and conclusions of law which specify the
reasons for its custody decision,” see id. at 1215. And
“[w]henever custody is contested, the district court must provide
the necessary supporting factual findings that link the evidence
presented at trial to the child’s best interest and the ability of
each parent to meet the child’s needs.” K.P.S. v. E.J.P., 2018 UT
App 5, ¶ 27, 414 P.3d 933.
¶31 Here, the district court clearly operated within the above
framework in reaching its custody decision. The court found the
evidence supported the conclusion that Father was better able to
meet the developmental needs of Child. See Utah Code Ann.
§ 30-3-10(2)(b) (LexisNexis 2019). Specifically, the court focused
its attention on each parent’s relative ability to co-parent Child.
It determined that persuasive evidence was presented to show
that Mother was “not interested in [Child] having an emotional
father-son attachment to [Father], and to [the] contrary [had]
taken steps to prevent or interfere with such an attachment.” As
evidence of this tendency, the court pointed to Mother’s
testimony and closing arguments:
[Mother] went out of her way several times to tell
the Court that [Child] did not like to be around
[Father], and that [Child] would act up when it was
time to transition to [Father]. It was clear from
[Mother’s] testimony that she believed it was an
appropriate response to such perceptions to
interfere with [Father’s] access to [Child], including
interfering with his parent time, and that she . . .
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believed such interference was appropriate even in
the face of court orders if her perception as
[Child’s] mother was that . . . she should keep him
from [Father].
¶32 The court also noted that Mother regularly referred to
Father by his first name when speaking about him to Child
rather than referring to him as Child’s father. The court
concluded that “[i]t was evident” that Mother’s testimony “was
an effort to suggest that this four-year-old child had a preference
for her over [Father].” In addition, the court noted that there was
“ample evidence” that Mother had “interfered significantly” in
Child’s relationship with Father by “a pattern of misbehavior,
violating the orders of the court, and not cooperating with the
custody evaluation.” In contrast, the court found “there was no
evidence” that Father “would interfere” with Child’s
relationship with Mother.
¶33 The court observed that if Mother was truly “looking out
for the emotional needs” of Child, she “would make efforts to
ensure [Child had] a strong emotional bond and parent-child
relationship with both parents.” Based on this evidence, the
court concluded,
[T]here is a strong reason to believe [Child] can
have an appropriate parent-child relationship with
[Mother] if custody of [Child] is awarded to
[Father]. But there is an equally strong reason to
believe that [Mother] will prevent [Child] from
having any such relationship with [Father] if
custody is awarded to [Mother]. This is apparent
from the pattern of intransigence and
noncompliance with Court orders, particularly
regarding parent time, that [Mother] has
demonstrated during the pendency of this action. It
is manifestly in [Child’s] best interests to have an
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emotional bond and supportive parent-child
relationship with both parents, and that goal is
more likely to be achieved if custody is awarded to
[Father] than if custody is awarded to [Mother].
¶34 With regard to each parent’s capacity and willingness to
function as a parent, see id. § 30-3-10(2)(c), the court concluded
that this factor overall weighed “very strongly” in favor of
Father. As evidence, the court cited the “frustrating pattern
throughout the pendency of this action of [Mother] agreeing to
do things, or being ordered to do things, and then almost
immediately refusing to follow through with agreements she
made or Court orders she was given.” This pattern led the court
to not being “persuaded that [Mother] would cooperate with
[Father] having a parent-child relationship with [Child].” Thus,
the court concluded that it was in Child’s best interest for Father
to have sole custody because “he would cooperate better in
terms of facilitating parent-time with [Mother] than she would in
facilitating parent-time with him.”
¶35 One overarching concern of the court in weighing the
factors was that it was in the best interest of Child “to live in a
situation that maximizes the probability that he will maintain a
strong bond and a productive and healthy relationship with both
parents.” And “[b]ased on the evidence that was presented at
trial,” the court found that if Father was awarded sole legal and
physical custody, he would “likely cooperate to the extent
necessary to ensure” Mother would have a bond and
relationship with Child. But the same could not be said if Mother
was awarded sole custody. On the contrary, based on her pattern
of behavior, the court found it “more likely than not” that she
would not cooperate in fostering a parent-child relationship and
bond between Father and Child.
¶36 The court in this case “had to choose between two good
parents,” but one of those parents—Mother—had consistently
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manifested behavior that suggested she would not support or
nurture Child’s relationship with Father. See Hudema v.
Carpenter, 1999 UT App 290, ¶ 38, 989 P.2d 491; see also Tucker v.
Tucker, 910 P.2d 1209, 1215 (Utah 1996) (“Often, when there are
two equally suitable parents, the trial judge may be compelled to
base a custody award upon observations of the parents in court,
the reactions of the child to each parent, or other factors. A trial
court need not find one parent inadequate before awarding
custody to the other.”). So even though certain factors weighed
slightly in Mother’s favor, see supra ¶ 22, “we must defer to the
trial court’s broad discretion and affirm its conclusion that
[Child’s] interests would best be served by awarding [Father]
primary physical custody,” see Hudema, 1999 UT App 290, ¶ 38.
In other words, the court did not abuse its discretion in
concluding that it was in Child’s best interest to live with the
parent who would most likely ensure that he would have a
strong bond and healthy relationship with both parents and that
this goal would best be achieved by awarding Father sole legal
and physical custody.
II. Motion to Continue
¶37 Mother next argues that she was denied the right to a fair
trial when the district court denied her motion to continue the
trial.
¶38 “Courts have substantial discretion in deciding whether
to grant continuances, and their decisions will not be overturned
unless that discretion has been clearly abused.” Clarke v. Clarke,
2012 UT App 328, ¶ 19, 292 P.3d 76 (cleaned up). Stated another
way, “we will conclude that a trial court has abused that
discretion only if the decision to grant or deny a continuance is
clearly unreasonable and arbitrary.” Vaughan v. Romander, 2015
UT App 244, ¶ 10, 360 P.3d 761 (cleaned up).
¶39 Mother has not shown that the district court abused its
discretion in denying her motion to continue. In no way did the
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court act unreasonably or arbitrarily in coming to its decision. In
Layton City v. Longcrier, 943 P.2d 655 (Utah Ct. App. 1997), this
court adopted a five-prong test to determine whether a district
court acted reasonably in denying a motion to continue: (1)
“whether other continuances have been requested and granted”;
(2) “the balanced convenience or inconvenience to the litigants,
witnesses, counsel, and the court”; (3) “whether the requested
delay is for legitimate reasons, or whether it is dilatory,
purposeful, or contrived”; (4) “whether the [requesting party]
contributed to the circumstance which gives rise to the request
for a continuance”; and (5) “whether denying the continuance
will result in identifiable prejudice to [the requesting party’s]
case, and if so, whether this prejudice is of a material or
substantial nature.” Id. at 659. We address each factor in turn.
¶40 First, Mother had already received one continuance and
one extended period of time following her revocation of consent
to an informal trial. While the transitory time between the
second scheduled informal trial in November and the March
trial date did not result from an express continuance, as a
functional matter, granting this motion would have effectually
resulted in a third continuance; so the first factor supports a
determination that the court acted reasonably in denying the
motion.
¶41 Second, granting the motion, which was made on the
morning of the trial, would have resulted in significant
inconvenience. Father had taken time off work and traveled
from New Mexico to be present at trial. Evaluator was also
present, and Father had paid her for her time. Mother had also
been notified of the trial date and was present in court. So apart
from her lack of counsel, she faced no inconvenience in
proceeding—other than her desire not to.
¶42 Third, Mother had displayed a pattern of dilatory
behavior throughout the proceedings, and the court could have
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reasonably concluded that her request for a continuance was yet
another manifestation of this tendency.
¶43 Fourth, Mother’s action of firing her fourth attorney
constituted the very circumstance that gave rise to the putative
reason (namely, to hire another attorney) for requesting the third
continuance.
¶44 Fifth, and most importantly, Mother was not prejudiced
by the denial of the motion. Indeed, the court noted that Mother
was well prepared and represented herself quite
effectively at trial, despite not ultimately
convincing the court to rule in her favor. She had
done research into relevant legal and factual issues.
She represented herself tenaciously while still
following the procedural rules set forth by the
court. She cross-examined witnesses, testified, and
presented arguments effectively. . . . Overall, the
court’s impression of [Mother’s] performance at
trial was that she had successfully deployed
evidence and argument to present her strongest
possible case to the court, albeit not a case that
ultimately prevailed. In light of this, and
considering that [Mother’s] inability to present an
expert witness at trial was due to decisions by [her]
prior counsel not to designate an expert and not
due to the court’s refusal to grant a continuance,
the court [was] hard-pressed to conclude that
counsel could have secured a better result for
[Mother] at trial than she secured for herself.
Thus, this final factor also supports the conclusion that the
district court acted reasonably in denying the motion. See State v.
Wallace, 2002 UT App 295, ¶ 37, 55 P.3d 1147 (“Unless a
defendant shows that denial of the continuance had a material
[e]ffect on the outcome of the trial, thereby demonstrating
20200586-CA 18 2022 UT App 13Hinds v. Hinds-Holm
prejudice, the trial court’s decision would not constitute an
abuse of discretion.”).
¶45 Mother had already effectively received two
continuances, and granting a third would have
disproportionately inconvenienced Father. Moreover, Mother
had a pattern of delaying the custody proceedings and had
occasioned the need for a third continuance by her own actions.
Finally, there is no evidence that Mother would have received a
more favorable outcome had the continuance been granted.
Under these circumstances, we conclude that the district court
did not abuse its discretion in denying Mother’s motion on the
morning of the trial.
III. Attorney Fees on Appeal
¶46 Father requests attorney fees incurred pursuant to this
appeal. “Generally, when the trial court awards fees in a
domestic action to the party who then substantially prevails on
appeal, fees will also be awarded to that party on appeal.”
Wollsieffer v. Wollsieffer, 2019 UT App 99, ¶ 11, 446 P.3d 84(cleaned up). But that is not the case here. The court awarded
attorney fees below relative to the two orders to show cause,
which are not the subject of this appeal. Because Father prevails
on separate issues on appeal (namely, the award of custody and
the denial of Mother’s motion to continue), he is not entitled to
fees incurred on appeal.
CONCLUSION
¶47 We see no abuse of discretion in the district court’s
weighing of the statutory factors in reaching its decision to
award custody to Father. We also conclude that the court did not
abuse its discretion in denying Mother’s motion to continue.
And we decline to award Father attorney fees incurred on
appeal. Affirmed.
20200586-CA 19 2022 UT App 13