2024 UT App 107

THE UTAH COURT OF APPEALS

SEAN MCPHERSON,

Appellee,

v.

LYNN COPP,

Appellant.

Opinion

No. 20220404-CA

Filed August 1, 2024

Third District Court, Silver Summit Department

The Honorable Richard E. Mrazik

No. 194500029

Laja K. Thompson, Attorney for Appellant

Brody N. Miles, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 This appeal involves a dispute between Sean McPherson 

and Lynn Copp over the recognition of their purported

unsolemnized marriage. The trial court concluded that Copp 

failed to present sufficient evidence at an evidentiary hearing to 

establish a valid marriage between her and McPherson. The 

court found the two had maintained only a partial, rather than 

a uniform and general, reputation as a married couple in 

their communities, which is a required element of an 

unsolemnized marriage. We affirm the court’s dismissal of 

Copp’s counterclaim.
McPherson v. Copp

20220404-CA 2 2024 UT App 107

BACKGROUND1

¶2 McPherson and Copp met in Breckenridge, Colorado, in 

March 2010 and began living together in September of that same 

year. In January 2012, Copp gave birth to the parties’ son (Son). 

At the time of Son’s birth, McPherson and Copp “made a 

commitment to one another” that Son would take McPherson’s 

last name, that “McPherson would stay involved in [Son’s] life,” 

and that “McPherson would financially support [Copp] and 

[Son].” In March 2012, McPherson, Copp, and Son moved to 

Denver, Colorado, for McPherson’s new job.

¶3 Two years later, the parties’ relationship deteriorated, and 

Copp told “McPherson [that] she was moving with [Son] to 

Chicago.” In response, McPherson sought legal advice concerning 

custody of Son. Copp did not move to Chicago and instead 

followed McPherson in March 2015 to Utah, where McPherson 

had again relocated for work. McPherson, Copp, and Son lived 

together in a home they rented in Sandy, Utah. While there, Son 

began attending preschool at the Waldorf School, where Copp 

volunteered on the preschool board and met Son’s teacher 

(Teacher). It was during this time that McPherson and Copp also 

met a neighbor (Sandy Neighbor). Son later attended Wasatch 

Woodland School, where Copp met a fellow kindergarten parent 

(WWS Parent).

¶4 In July 2017, McPherson and Copp moved to Mexico with 

Son briefly before returning to the United States. Upon their 

return, the parties began renting an apartment together in 

Holladay, Utah, and McPherson continued to financially support 

Copp. Later, the parties moved to Park City, Utah, and rented a 

home together there. However, despite living in the same 

household, the parties did not share a bedroom and had not 

engaged in sexual relations since before the summer of 2017.

1. The recitation of the facts is based on the trial court’s 

unchallenged factual findings.
McPherson v. Copp

20220404-CA 3 2024 UT App 107

¶5 The parties formally separated in February 2019 when 

Copp sought a protective order against McPherson. After that

filing, McPherson moved out of the Park City home and began 

living in Salt Lake City, Utah.

¶6 McPherson petitioned for custody of Son in 2019. Shortly 

thereafter, Copp filed a counterclaim to have the parties’

relationship recognized as an unsolemnized marriage and for 

divorce. Copp asserted that the effective date of the parties’

unsolemnized marriage was April 2012.

¶7 The trial court bifurcated the issue of the unsolemnized 

marriage from the other issues. The court ordered fact discovery

to run from April 17, 2019, to November 11, 2019. Copp provided 

her initial disclosures on June 4, 2019, wherein she disclosed two 

witnesses—herself and McPherson. McPherson disclosed thirtyfour witnesses, including family members, friends, and 

coworkers, in addition to himself.

¶8 On January 12, 2021, the trial court ordered a sixty-day

extension for discovery related to the unsolemnized marriage 

issue in response to a stipulation filed by the parties. As part of 

the stipulation, the parties “agreed not to object to the use of 

previously disclosed witnesses.” On March 16—the last day of the 

reopened discovery period—Copp provided a new list of thirtytwo additional witnesses, but the pretrial disclosures did not list 

any contact information for most of the new witnesses. 

McPherson filed a motion seeking to exclude twenty-three of 

Copp’s new witnesses, arguing that identifying these witnesses 

on the last day of discovery was untimely. The court agreed that 

Copp’s witness disclosures were untimely and excluded twentythree of the listed witnesses from testifying at the evidentiary 

hearing.

¶9 A three-day evidentiary hearing on Copp’s counterclaim 

seeking to establish an unsolemnized marriage was held in June 

2021, during which various witnesses testified. Following the 

hearing, the trial court issued its findings of fact, conclusions of 
McPherson v. Copp

20220404-CA 4 2024 UT App 107

law, and order. Based on the evidence presented, the court found 

that “[s]everal witnesses testified credibly, and certain evidence 

corroborated, that the parties sometimes held themselves out as 

being married, and acquired at least a partial reputation as being 

married.” Those witnesses included Copp’s brother, Copp’s 

mother, the parties’ Park City landlord, Sandy Neighbor, WWS 

Parent, and others. However, the court also found that “numerous 

other witnesses testified credibly that they understood that the 

parties were not married, and the greater weight of the evidence 

shows the parties had acquired a reputation among 

[McPherson’s] family, friends, and professional colleagues as not 

married.” (Emphasis omitted.) The court found “no credible 

evidence” that McPherson “ever wore a wedding ring” or that 

Copp “ever used [McPherson’s] last name as her own.”

¶10 Based on the foregoing factual findings, the trial court 

concluded Copp had “failed to meet her burden of proving, by a 

preponderance of the evidence, that the parties ‘hold themselves 

out as and have acquired a uniform and general reputation as 

husband and wife.’” (Quoting Utah Code § 30-1-4.5(1)(e).) The 

court continued that “the greater weight of the evidence shows 

the parties have acquired only a partial reputation as husband and 

wife, and have inconsistently held themselves out as husband and 

wife,” and that “[t]his divided reputation precludes a finding that 

the parties ‘have acquired a uniform and general reputation as 

husband and wife.’” As such, the court dismissed Copp’s 

counterclaim based upon her failure to carry her burden of 

proving the “uniform and general reputation” element of an 

unsolemnized marriage.

2

2. The trial court also concluded that Copp’s counterclaim should 

be dismissed because Copp had failed to meet her burden to 

prove that “McPherson consented to be married to [Copp].” 

Although Copp challenges the court’s conclusion on this point, 

we need not address this challenge in light of our resolution of the 

other issues raised on appeal. See Volk v. Vecchi, 2020 UT App 77, 

(continued...)
McPherson v. Copp

20220404-CA 5 2024 UT App 107

ISSUES AND STANDARDS OF REVIEW

¶11 Copp now appeals the trial court’s order, presenting two 

main issues for our review. First, she asserts that the court erred

in finding that the parties had acquired only a partial reputation 

as husband and wife. “We do not reverse a trial court’s findings 

of fact unless they are clearly erroneous.” Kelley v. Kelley, 2000 UT 

App 236, ¶ 18, 9 P.3d 171 (quotation simplified).

¶12 Second, Copp asserts that the trial court abused its 

discretion in excluding twenty-three of her witnesses from 

testifying at the evidentiary hearing. “A district court has broad 

discretion in selecting and imposing sanctions for discovery 

violations under rule 26 [of the Utah Rules of Civil Procedure]. 

Appellate courts may not interfere with such discretion unless 

there is either an erroneous conclusion of law or no evidentiary 

basis for the district court’s ruling.” Wallace v. Niels Fugal Sons Co., 

2022 UT App 111, ¶ 26, 518 P.3d 184 (quotation simplified), cert. 

denied, 525 P.3d 1267 (Utah 2023); see also Utah R. Civ. P. 26(d)(4) 

(“If a party fails to disclose or to supplement timely a disclosure 

or response to discovery, that party may not use the undisclosed 

witness, document, or material at any hearing or trial unless the 

failure is harmless or the party shows good cause for the failure.”).

ANALYSIS

I. Unsolemnized Marriage

¶13 A party seeking recognition of a marriage that is not 

solemnized must prove each of the five elements set forth in Utah 

Code section 30-1-4.5(1)(e) “by a preponderance of the evidence.” 

See Hansen v. Hansen, 958 P.2d 931, 937 (Utah Ct. App. 1998); see 

also Volk v. Vecchi, 2020 UT App 77, ¶ 12, 467 P.3d 872 (“In proving 

¶ 12, 467 P.3d 872 (explaining that a party attempting to prove the 

existence of an unsolemnized marriage must establish “each

required [statutory] element . . . by sufficient evidence”).
McPherson v. Copp

20220404-CA 6 2024 UT App 107

the existence of a common law marriage, . . . each required 

[statutory] element must be established by sufficient evidence.”).

These elements include establishing the existence of “a contract 

between a man and a woman who . . . hold themselves out as and 

have acquired a uniform and general reputation as husband and 

wife.” Utah Code § 30-1-4.5(1)(e).

¶14 Here, the trial court concluded that Copp had not carried 

her burden to establish an unsolemnized marriage because Copp 

failed to prove that she and McPherson “acquired a uniform and 

general reputation as husband and wife.” In reaching this 

conclusion, the court found that the greater weight of the evidence

showed the parties had acquired only a partial reputation as being 

married. Copp contends the court’s findings are clearly erroneous 

because of how the court “weigh[ed] the evidence.” Specifically, 

Copp asserts the court gave “undue weight to the quantity of 

McPherson’s witnesses” rather than focusing on “the quality of” 

the witness testimony, and that the court improperly 

“discredit[ed]” her witnesses.

¶15 This court has indicated that “a partial or divided 

reputation of marriage is insufficient to establish that a couple has 

acquired a uniform and general reputation as husband and wife, 

as required by section 30-1-4.5(1)(e).” Volk, 2020 UT App 77, ¶ 15

(quotation simplified). “A partial or divided reputation of 

marriage may be shown when the parties’ closest friends do not 

consider the parties married and the parties are not consistent in 

holding themselves out as married to the rest of the world.” Id.

(quotation simplified). “Such circumstances negate the 

establishment of the statutory requirement that the couple acquire

a uniform and general reputation as husband and wife.” Rivet v. 

Hoppie, 2020 UT App 21, ¶ 11, 460 P.3d 1054 (quotation 

simplified).

¶16 After considering all the evidence, including extensive 

witness testimony, the trial court found the parties had “a partial 

reputation as being married.” The court made several findings 

related to the witness testimony that had been provided, which 
McPherson v. Copp 

20220404-CA 7 2024 UT App 107

included findings concerning sixteen of McPherson’s witnesses. 

The court found that these witnesses had all testified credibly “to 

the same effect—they knew the parties lived together, but were 

not married; that neither party ever said they were married; and 

that neither party ever introduced the other, or referred to the 

other, as ‘spouse,’ ‘husband,’ or ‘wife.’” 

¶17 However, the trial court also recognized the existence of 

conflicting evidence, finding that “certain evidence 

corroborated[] that the parties sometimes held themselves out as 

being married.” The court found that several of Copp’s 

witnesses—including Copp’s brother, Copp’s mother, the parties’ 

Park City landlord, Sandy Neighbor, and WWS Parent—testified 

credibly as to this effect. But the court also found that many of 

Copp’s witnesses—including Teacher, Sandy Neighbor, WWS 

Parent, and even Copp’s mother—based their belief that the 

parties were married on a general assumption that people who 

live together and have a child together are married.

¶18 Copp contends these findings are clearly erroneous 

because McPherson’s witnesses “knew only McPherson” and had 

“met Copp once or not at all.” Thus, she argues that the trial court 

should have given “greater weight to the testimony of those 

witnesses who have first-hand knowledge of the couple’s 

interactions at [Son’s] school, in their neighborhood, and mutual 

friends.” (Emphasis omitted.) But Copp’s argument is unavailing 

in light of the applicable standard of review. It is well established 

that “a trial court’s factual determinations are clearly erroneous

only if they are in conflict with the clear weight of the evidence,

or if this court has a definite and firm conviction that a mistake

has been made.” Lamar v. Lamar, 2012 UT App 326, ¶ 2, 292 P.3d 

86 (quotation simplified). When reviewing a trial court’s factual 

findings, we “must give due regard to the trial court’s 

opportunity to judge the credibility of the witnesses.” Utah R. Civ. 

P. 52(a)(4). When making findings or credibility determinations, 

the trial court need not “detail[] its justification for finding 

particular evidence more credible or persuasive than other 

evidence supporting a different outcome.” Shuman v. Shuman, 
McPherson v. Copp

20220404-CA 8 2024 UT App 107

2017 UT App 192, ¶ 6, 406 P.3d 258, cert. denied, 412 P.3d 1257

(Utah 2018). And when determining if the court’s findings are 

“against the clear weight of the evidence and thus clearly 

erroneous, we view the facts in the light most favorable to the 

findings.” Kelley v. Kelley, 2000 UT App 236, ¶ 18, 9 P.3d 171.

¶19 Copp complains that the trial court improperly weighed 

witness testimony, and it is apparent that she “clearly views the 

evidence as compelling a different outcome.” Shuman, 2017 UT 

App 192, ¶ 9. “But it is not within our purview to engage in a 

reweighing of the evidence, and [Copp] has not demonstrated 

that the evidence underlying the trial court’s findings is 

insufficient.” Id. (quotation simplified). Indeed, the court’s 

findings were based on a series of credibility determinations, 

which are best left to the trial court. See Utah R. Civ. P. 52(a)(4).

¶20 Based on the foregoing, we conclude that Copp has not

demonstrated that the trial court clearly erred when making any 

of the challenged factual findings.

II. Exclusion of Witnesses

¶21 Next, Copp asserts the trial court abused its discretion by 

excluding twenty-three of her witnesses from testifying as a 

sanction under rule 26 of the Utah Rules of Civil Procedure. We 

disagree.

¶22 Under rule 26(a)(1), parties must timely file initial witness 

disclosures that provide both the contact information and the 

expected testimony of each witness. Utah R. Civ. P. 26(a)(1). A 

party must make these disclosures “based on the information then 

known or reasonably available” to them, id. R. 26(d)(1), and “[a] 

party is not excused from making disclosures . . . because [they 

have] not completed investigating the case,” id. R. 26(d)(3). If a 

party discovers that an initial disclosure is “incomplete,” the party 

must “timely” supplement the disclosure and the supplemental 

disclosure “must state why the additional . . . information was not 

previously provided.” Id. R. 26(d)(5). “When a party fails to 
McPherson v. Copp

20220404-CA 9 2024 UT App 107

comply with rule-based disclosure requirements, that party is 

presumptively barred from relying on that witness, document, or 

material at trial” “unless the party seeking relief from disclosure 

requirements can demonstrate that its noncompliance was 

harmless or excused by good cause.” Bailey v. Bailey, 2024 UT App 

51, ¶ 25, 548 P.3d 519 (quotation simplified); see also Utah R. Civ. 

P. 26(d)(4).

¶23 On June 4, 2019, Copp filed her initial disclosures, which 

listed only two witnesses: herself and McPherson. Then, on March 

16, 2021, the last day of the re-opened discovery (which was 491 

days after original fact discovery had closed), Copp submitted her 

pretrial disclosures. These disclosures listed an additional thirtytwo witnesses that Copp had not included in her initial 

disclosures. Copp did not explain why the additional witnesses 

were not disclosed prior to this date, and she did not include 

contact information for twenty-nine of these newly disclosed 

witnesses.

¶24 In its order addressing McPherson’s motion to exclude 

Copp’s newly disclosed witnesses, the trial court first concluded 

that Copp’s disclosure of the additional witnesses was untimely. 

The court rejected Copp’s argument that the disclosure was 

timely “because it came within the 60-day extension,” reasoning 

as follows:

[Copp] had a duty to disclose as many witnesses as 

she had knowledge of when making her initial 

disclosures, to timely supplement her initial 

disclosures as additional witnesses become known 

to her, and to provide an explanation as to why the 

additional witnesses were not previously disclosed. 

Rule 26 does not allow a party to wait until the last 

day of fact discovery to disclose 32 additional 

witnesses without an explanation of why the 

witnesses were not previously disclosed.

(Citations omitted.)
McPherson v. Copp

20220404-CA 10 2024 UT App 107

¶25 Under the circumstances, we perceive no abuse of 

discretion in the trial court’s timeliness determination. This court 

has recently reaffirmed that “[d]epending on the circumstances, a 

disclosure produced a few days before the close of fact discovery 

may still not be considered timely.” De La Cruz v. Ekstrom, 2024 

UT App 18, ¶ 14, 545 P.3d 285. That is because “timeliness is 

determined under the facts and circumstances of each particular 

case, and in the sound discretion of the court.” Id. ¶ 15 (quotation 

simplified). When making a timeliness determination, a court 

must assess a party’s disclosures “against the backdrop of the 

time, place[,] and manner requirements relating to discovery in 

the case.” Id. ¶ 18 (quotation simplified).

¶26 Here, the trial court did exactly that. Importantly, all thirtytwo of Copp’s undisclosed witnesses were family, friends, or 

general acquaintances that Copp had known for years. Indeed, 

the purpose of their testimony was to demonstrate that they had 

witnessed the parties over time and believed them to be married. 

Copp provided no explanation as to why she did not disclose 

these witnesses earlier, and as a key issue was whether the parties 

had acquired “a uniform and general reputation as husband and 

wife,” the importance of these witnesses from the outset of the 

case was apparent. Given that the witnesses were known at the 

time Copp filed her initial disclosures and the lack of proposed 

justification for their late disclosure by Copp, the court properly 

exercised its broad discretion to assess Copp’s disclosure as 

untimely.

¶27 After concluding that Copp’s disclosure was untimely, the 

trial court then turned to the question of whether the untimely 

disclosure was either harmless or excused by good cause. See Utah 

R. Civ. P. 26(d)(4). Regarding good cause, the court found Copp’s 

argument that she had been “represented by three different sets 

of counsel” and it was therefore “reasonable for certain details to 

be lost in the handoff between counsel” to be “unpersuasive.” The 

court noted that Copp’s current counsel had been representing 

her since December 2020, which was “more than three months 

before the close of the extended discovery period,” and that 
McPherson v. Copp

20220404-CA 11 2024 UT App 107

counsel therefore had “ample” time to discover that 

supplementation was necessary. Moreover, the court reasoned

that Copp’s prior counsel should have also been aware that 

supplementation was necessary given that prior counsel had filed 

and served declarations in 2019. We perceive no abuse of 

discretion in the court’s assessment. That Copp was represented 

by three sets of counsel does not explain why any individual 

counsel was unable to identify the additional witnesses until the 

last day of discovery. In essence, Copp is asking us to disregard 

“the intent of rule 26, which is to preclude parties from trying to 

gain an advantage by offering ‘surprise’ testimony at trial that has 

not been disclosed to, or evaluated by, the opposing party,” 

Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 24, 438 

P.3d 25, aff’d, 2020 UT 59, 472 P.3d 927, to make up for her 

counsel’s failure to follow disclosure rules. This we will not do. 

As such, we discern no abuse in the court’s good cause 

determination.

¶28 As to harm, the trial court analyzed the witnesses in two 

groups. For the first group of nine witnesses, the court concluded 

that Copp had previously submitted declarations and depositions 

for each witness and that the parties had stipulated “not to object 

to the use of previously disclosed witnesses.” Accordingly, the 

court found that McPherson was not harmed by the late 

disclosure of these nine witnesses. The court reached the opposite 

conclusion, however, with regard to the other twenty-three 

witnesses. For this group, the court concluded that Copp’s late 

disclosure harmed McPherson because it “deprived [him] of a 

reasonable opportunity” to evaluate those witnesses and to gain 

“knowledge he could have used in designing a discovery strategy 

and determining how to spend his litigation resources.” Given the 

close proximity between the date of disclosure and the date of the 

evidentiary hearing, we perceive no abuse in the court’s 

assessment that McPherson would have been harmed by allowing 

these witnesses to testify. Due to the late disclosure, McPherson 

was hamstrung in his ability to properly investigate and prepare 

to address these witnesses. Accordingly, we see no abuse of 

discretion in the court’s finding of harm.
McPherson v. Copp

20220404-CA 12 2024 UT App 107

¶29 In sum, on the facts of this case, the trial court did not abuse 

its discretion in concluding that Copp’s disclosure of the 

additional thirty-two witnesses was untimely. And the court 

likewise acted within its discretion in excluding twenty-three of 

those witnesses from testifying at the evidentiary hearing based 

on its determination that Copp did not show that her failure to 

timely disclose was harmless or excused by good cause.

CONCLUSION

¶30 Copp has failed to demonstrate that the trial court’s factual 

findings concerning the parties’ uniform and general reputation 

as husband and wife were clearly erroneous. Likewise, Copp has 

not demonstrated that the court abused its discretion in excluding 

many of her witnesses as a sanction for failing to timely disclose 

them. Accordingly, we affirm the dismissal of Copp’s 

counterclaim.