2017 UT App 24

THE UTAH COURT OF APPEALS

GREG J. POPE,

Appellant,

v.

CARMEN R. POPE,

Appellee.

Memorandum Decision

No. 20150869-CA

Filed February 9, 2017

Third District Court, Salt Lake Department

The Honorable Barry G. Lawrence

No. 134904171

Marshall Thompson and Emily Adams, Attorneys

for Appellant

Russell Yauney, Attorney for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in 

which JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY

concurred.

ROTH, Judge:

¶1 Greg J. Pope (Father) appeals from the district court’s 

memorandum decision and decree of divorce, particularly the 

court’s custody determination. We affirm.

¶2 Father and Carmen R. Pope (Mother) wed in 2009. In 2013 

they filed for divorce. The parties have two children and shared 

joint legal and physical custody of the children following their 

separation. In a three day bench trial, the parties contested, 

among other things, which parent should be the children’s 

primary custodian and which school the children should attend.
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¶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)).
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¶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+ 
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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.‛ 
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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
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incident. Thus, the district court’s conclusion that the moral 

character and emotional stability factors favored Mother was 

based on a well-reasoned and considered assessment of the 

credibility of the parties and the weight of the evidence 

presented on both sides, in which we find no error.

¶10 Father next challenges the district court’s finding that the 

parties were equally capable of providing personal rather than 

surrogate care. The court found that Father was working part

time on the night shift as a janitor and therefore ‚ha[d] his 

weekdays available to take care of the Minor Children.‛ 

However, the court was skeptical that Father could maintain 

such a work schedule long term because he was underemployed 

and ‚fore[went] child care while he [was] at work‛ to save 

money. The court likewise found Mother’s aspiration to be a 

stay-at-home mother to be economically unreasonable, even 

after her upcoming remarriage. While the district court 

recognized that Father was then in the best position to provide 

personal care because he was working part time at night, it 

concluded that, in the long term, ‚the most likely scenario is that 

both parties will need to be gainfully employed on a full-time 

basis to adequately provide for the needs of themselves and the 

Minor Children as they mature.‛

¶11 In challenging the court’s conclusion that the personal 

care factor was neutral, Father focuses primarily on the court’s 

expression of concern that ‚the young children [were] left 

unattended during the evening hours‛ while Father was at 

work. Father lived in a basement apartment in his mother’s 

(Grandmother’s) home. He put the children to bed before he left

for work. There was an external entrance to the apartment, but it 

was locked while Father was gone. Although the children slept

alone in the basement, there was an internal staircase from 

which they could access the main floor, and Grandmother 

testified that she could hear the children and attend to their 

needs if concerns arose. Thus, Father asserts that the district 
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court clearly erred in finding that the children were left 

unattended during the evening hours.

¶12 Although the court suggested that the children were left 

‚unattended‛ while Father was at work, it clearly recognized 

and considered the fact that Grandmother was present in the 

home. Nevertheless, the court was ‚not convinced that in the 

event of emergency the Minor Children would be timely and 

adequately protected and cared for.‛ We are not persuaded that 

such a finding was clearly erroneous in light of the evidence. 

While Father asserts that the court’s ruling essentially concludes 

that ‚anyone caring for minor children must sleep on the same 

level of the house as the children,‛ the fact that the basement 

was delineated as a separate living space, both physically and in 

the children’s minds, albeit with ready access via an internal 

staircase, makes this situation somewhat different from that of a 

typical dedicated caregiver sleeping on a separate level of a 

single-family home. As the court observed in its ruling on the 

post-trial motion, Father ‚made it a point during his testimony, 

that although he resided in the basement of his mother’s home, it 

was in a separate 1300 square foot, two-bedroom apartment, 

with a separate entrance.‛ Grandmother similarly testified that 

although the children were welcome in her part of the house, she 

and Father ‚encourage[d] the children to . . . own their space and 

use their door to the outside‛ and, further, that the children 

understood that ‚dad’s house‛ and ‚grandma’s house‛ were

separate.

¶13 Given these circumstances, the court’s skepticism about 

whether the children had adequate care during the night was not 

clearly erroneous. This is especially so as the court’s concern was 

expressed in the context of comparing Mother’s and Father’s 

households and their long-term financial conditions and did not 

amount to an affirmative finding that the children would be at 

serious risk with Father. Indeed, the court concluded that the 
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relative ability of the parties to provide personal versus 

surrogate care favored Father in the short term.

¶14 Further, the court’s determination that Father’s 

employment situation was unsustainable relied not only on his 

inability to afford adequate child care when he was at work, but 

also on the fact that Father had to live with Grandmother in 

order to ‚accommodate his part-time earnings.‛ Although 

Father maintains that he could continue working part time and 

living with Grandmother indefinitely, Grandmother herself 

testified that she did not anticipate Father and the children living

in her basement long term. She stated that although she had no 

deadline for Father and the children to move out of her home, 

she hoped that Father would become ‚self-sustaining at some 

point[,]‛ and she and Father had talked about Father getting ‚his 

own place‛ ‚somewhere in the near future.‛ Thus, even setting 

aside the question of whether the children were adequately 

cared for at night when Father was working, the court did not 

exceed its discretion in determining that Father’s part-time 

employment and living situation were unsustainable and that he 

would eventually need to seek full-time employment that would 

limit his ability to provide personal care for the children. 

Accordingly, we conclude that there was an adequate basis in 

the evidence to support the court’s determination that the 

surrogate care factor currently favored Father because of his 

availability due to part-time work but would be neutral in the 

long run because of the instability of his financial situation. See 

In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (‚When a foundation 

for the court’s decision exists in the evidence, an appellate court 

may not engage in a reweighing of the evidence.‛).

¶15 Father also challenges the basis for the district court’s 

related conclusion that the parties’ relative financial conditions 

favored Mother. Father argues that the district court 

inappropriately favored Mother’s ‚step-parent household‛ over 

Father’s ‚multigenerational household‛ by taking into account 
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the income of Mother’s fiancé when analyzing her financial 

circumstances but refusing to ‚also consider Grandmother’s 

income in Father’s favor.‛ While Grandmother was effectively 

subsidizing Father’s living expenses by letting him live in her 

basement for only $200 per month, she indicated that she 

expected Father to move out ‚in the near future.‛ As the district

court observed in its ruling on the post-trial motion, ‚neither 

[Father] nor [Grandmother] presented evidence that 

[Grandmother] contributed financially to the care/support of the 

Minor Children.‛ (Footnote omitted.) Thus, the court did not err 

in failing to consider Grandmother’s income in analyzing 

Father’s financial situation because there was no basis for the 

court to conclude that Grandmother planned to make long-term 

financial contributions to the children’s care as Mother’s fiancé 

planned to do.

¶16 Father next challenges the district court’s ruling that the 

children should change schools and attend school in Mother’s 

neighborhood. His argument rests on the assertion that the 

district court relied primarily on published school quality 

rankings to determine which school the children should attend

rather than considering the emotional impact a change in schools 

would have on the children. Evidence presented at trial 

indicated that the children were doing well at their current 

school, and Father testified that he wanted the children to 

‚continue*+ going to the school that they’ve been accustomed to 

and are doing wonderfully at‛ and that he thought it was 

important for them to attend a school that is ethnically diverse. 

But Father did not specifically argue at trial that the children 

would be emotionally harmed by changing schools. His 

arguments in the post-trial motion and on appeal rest on his 

statement that ‚*o+ne of the most traumatic things that can 

happen to a young child is to change schools.‛ Beyond this bare 

assertion, however, Father has never attempted to present even 

general evidence that the effects of changing schools are deep 

and permanent, let alone specific evidence that his children in 
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20150869-CA 10 2017 UT App 24

particular would suffer as a result of a move. Having been 

presented with no evidence on point, we are unpersuaded by 

Father’s assertion that the district court should have done more 

to consider the emotional impact that changing schools would 

have on the children. See State v. Guard, 2015 UT 96, ¶ 29, 371 

P.3d 1 (indicating that an issue ‚must be supported by evidence 

and relevant legal authority‛ (citation and internal quotation 

marks omitted)).

¶17 Further, while we acknowledge that a change in schools 

can be difficult for a child, the transitory distress from such a 

move does not as a matter of law necessarily outweigh other 

factors that might impact that child’s well-being. Here, the 

district court found that the school in Father’s neighborhood was 

ranked 525th out of 561 elementary schools in the state, while the 

school in Mother’s neighborhood was ranked 78th. The school in 

Father’s neighborhood had standardized test scores of 52.53 in 

language arts and 59.25 in math, whereas the school in Mother’s 

neighborhood scored 86.30 in language arts and 88.17 in math. 

Given the significant discrepancy between the academic 

performance of the two schools, it was within the court’s 

discretion to determine that, under the particular circumstances, 

the educational opportunities afforded by the school in Mother’s 

neighborhood outweighed the benefits of ethnic diversity at the 

school in Father’s neighborhood, as well as any concerns about 

how the children would adjust to a change in schools.1

¶18 Finally, Father argues that the court exceeded its 

discretion in permitting Mother’s fiancé to testify despite his 

having remained in the courtroom after the witness exclusion

 

1. This is especially true where the instability of Father’s living 

situation introduced some uncertainty about whether the 

children would be able to continue attending their current 

school.
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rule was invoked. Although the fiancé was on the original 

witness list, Mother’s counsel did not intend to call him as a 

witness, which is why he was not excluded from the courtroom 

when the rule was invoked. Rather, Mother’s fiancé testified at 

the district court’s own request. After hearing the evidence 

presented by the parties, some of which focused on the role of 

the fiancé in the children’s lives, both present and prospective, 

the judge stated, ‚I think I need to hear from him.‛

¶19 ‚[A] trial court retains considerable ‘discretion to decide 

whether a [party] will be prejudiced by permitting a witness to 

testify in the face of a violation of the *witness exclusion+ rule.’‛ 

State v. Gibson, 2016 UT App 15, ¶ 13, 366 P.3d 876 (first and 

second alterations in original) (quoting State v. Carlson, 635 P.2d 

72, 74 (Utah 1981)). ‚The purpose of the [witness exclusion] rule 

is to prevent witnesses from being influenced or tainted by the 

testimony of other witnesses, or other evidence adduced at 

trial.‛ State v. Curtis, 2013 UT App 287, ¶ 22, 317 P.3d 968 

(citations and internal quotation marks omitted). Thus, ‚to show 

that a trial court abused its discretion in allowing a witness to 

testify despite a violation of the exclusionary rule, the [objecting 

party] carries ‘the onus of showing’ prejudice,‛ Gibson, 2016 UT 

App 15, ¶ 13 (quoting Carlson, 635 P.2d at 74), ‚and, in 

particular, must demonstrate that the witness ‘changed *his or 

her+ testimony’ in some material way because of what [he or she]

heard,‛ id. (quoting State v. McGrath, 749 P.2d 631, 634 (Utah 

1988)). In addition, ‚rulings on evidence are looked upon with a 

greater degree of indulgence when the trial is to the court than 

when it is to the jury‛ ‚because it can be safely assumed that the 

trial court will be somewhat more discriminating in appraising 

both the competency and the rulings properly to be given 

evidence.‛ State v. Park, 404 P.2d 677, 679 (Utah 1965). Given the

deference we grant and the fact that Father has failed to present 

evidence suggesting that Mother’s fiancé altered his testimony 

based on what he heard in the trial, we are not persuaded that 
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the fiancé’s testimony resulted in unfair prejudice or that the 

court exceeded its discretion in permitting the testimony.

¶20 We reject Father’s challenges to the district court’s 

findings on the various custody factors. The district court’s 

detailed findings of fact were not clearly erroneous and were 

sufficient to support its determination that granting primary 

custody to Mother and ordering the children to change schools 

was in the children’s best interests. Further, because Father has 

failed to show that he was unfairly prejudiced by the testimony 

of Mother’s fiancé, the court did not exceed its discretion in 

permitting the testimony. 

¶21 Affirmed.