2015 UT App 60

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### T H E 

### U TA H 

### C O U RT O F 

### A P P E A L S

J ARE D W I L L I AM F UL L M E R , Peti tioner and Appellant,

v. K E L L I A N N F UL L M E R

, Respondent and Appellee.

Opin i on No. 20130060-CA Filed March 19, 2015

Second Di stric t Co urt, F armi ngto n Department The Honorable Michael G. Allphin

No. 104701561

Mar y C. Co rpor on, Att or ney for Appellant J. Ed Chri sti ansen an d Nathan Whi ttak er,

Att or neys for Appellee

J UD G E M I C H E L E M. C H RI S T I AN S E N authore d thi s Opini on, i n whi ch J UD G E S J. F RE D E RI C V OR O S J R . and K AT E A. T OOM EY

concu rr ed.

CHRIS TIANSEN, Judge:

¶1 Jared Wi lli am Fullmer (Father ) appeals fr o m t he di stric t court’s award of prim ary cus tody of the parties’ two children to Kelli Ann Fullmer (Mother). Father arg ues that the case should be remanded for a new tr i al on the cus tody i ssu e becau se the di stric t court judge fai led to recuse hi mself sua spont e after the judge i ndi cated that the cus tody evaluato r was “a prominen t and ver y credible exper t.” Father also asserts that the di stric t court abus ed i ts di screti on by alter ing the parties’ pret rial cus tody arr angement and awarding primary cus tody to M other . We affi rm.Ful lmer v. F ullm er

BACKGRO UND

¶2 Father and Mot her were married in July 2003. Two chi ldren

were bo rn duri ng the marriage. In Sept ember 2010, Father fi led a petiti on for divor ce.

¶3 The part i es appeared before a domesti c-relati ons commi ssi on e r , who recommended that Father be awarded tempor ary prim ary cus tody of the two chi ldren. The di stric t court ad opted the commi ssi oner’ s recommendati ons and enter ed tempor ary or ders d e si gnating Father as the prim ary cus todial parent. Mot her was awarded parent-time c on s i s tin g of Wednesday

ov ernights, s hared holidays, an d a major i ty o f weekends.

¶4 Mot her and Father sti pula t e d to the appoi ntment of Dr. Natali e Malov ich a s the cus tody evaluato r in the case. The court then or dered Dr. Malov i ch to conduc t a chi ld-c ustody evaluation. After Dr. Malov i ch completed her evaluation, she partici pated in
a cu st o d y settlement conference wi th the parties. At that conference, Dr. Malov i ch recommended that the parties share jo int legal and physi cal cu st o dy but recommended that Mot her be the prim ary cus todial parent. Under Dr. Malov i ch’s recommendati on, Father would receive parent- tim e, consi sting of ever y other weekend and two weekni ght ov ernights on alter nati ng weeks. Dr. Malov i ch also recommended shared holi days and that Father be awarded any “non-holi day” days that the chi ldren had off from sch ool. The parties were unabl e to reach an agr eement and the case
was c ert i fi ed for t rial.

¶5 After the settlement conference, Mot her moved to have Dr. Malov i ch p r epare a wri tte n repo rt of her cus tody evaluation and recommendati on. In that repo rt, Dr. Malov i ch stated her beli ef that Father was taking hi gh quanti ties of pain medi cati on a n d e xp l a in e d her concern that thi s could lead to sub stance-ab use problems in the future. After receiving a copy of Dr. Ma l ov i ch ’s repo rt, Father hi red

a n exper t to rev i ew Dr. Malov i ch’s cus tody evaluation and exami ne her methodo logy

.

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¶6 Before tr i al, Father moved to exclude Dr. Malov i ch’s repo rt and to li mi t her testim ony. Father a r g ue d that Dr. Malov i ch’s repo rt was unreli able, that she should not be allowed to comment

on Fat he r’s prescri ption- drug use becaus e she had no speci ali zed tr ai ning in prescri ption drugs, that Father ’s prescri ption- drug use
was i rr elevant to the cus tody deter minati on, and that Dr. Malov i ch had acted unlaw fully i n obtaining information on Father ’s hi stor y of prescrip tion-d rug use.

¶7 In Sept ember 2012, the court held a bench tr i al to deter mine
cus tody of the chi ldren, the chi ldren’s prim ary resi dence, par enttim e, and chi ld supp or t. At the begi nning of the tr i al, the di stric t court judge addressed Father ’s motion in li mine. In denyi ng the motion, the di st r ict court judge stated that Father appeared to be “taking swi pes at a prominen t and ver y credible exper t.” The judge also cri tic i zed the arg uments rai sed in Father ’s motion, s tating, “I guess i t’s up to you to de t e r min e wh ether or not you thi nk I’m stupi d.” Father di d not object to these comments when they were made and di d not fi le a motion to di squali fy the di stric t court judge pursuant to r ule 63 of the Utah Rules of Ci vil P ro cedure.

¶8 The court deni ed Father ’s motion to exclude Dr. Malov i ch’s repo rt and testim ony, and tr i al proceeded. A ft e r t rial, the court

or ally announc ed i ts findings of fact and conclusio ns o f law. The court memoriali zed that ruli ng and enter ed a decree of di vo rce on December 20, 2012. In the decree, the court or dered that the parties shar e jo i nt legal and physi cal cus tody of their chi ldren and desi gnated Mot her as the prim ary cus todial parent. Father was awarded liberal parent -t ime si mi lar to that recommended by Dr. Malov i ch. Father appeals.

ISS UES AND STANDARDS O F REVIEW

¶9 Father contends that the di stric t cour t judge should have recused hi mself sua sponte after commenting on the quali fi cati ons of the cus tody evalu a t o r. “Determin ing whether a tr i al judge

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commi tte d err or by failing to recuse hi mself or herself under the U t a h Code of Judi ci al Conduct

. . . i s a questi on of law, a nd we
re vi e w s u ch questi ons for corr ectness.” State v. Alonzo, 973 P.2d 9 75 , 979 (Utah 1998).

¶10 Father also arg ues th a t the d i s tr i c t c ou rt ab used i ts di screti on i n alter i ng the exis ting tempor ary cus todial arr angement and awardi ng prim ary cus tody to Mot her. A di stric t co ur t i s given broad di screti on i n maki ng chi ld-c ustody awards, Myers v. Myers , 768 P.2d 979, 982 (Utah Ct. App. 1989), and i ts deci si on wi ll not be di sturbed absent a showing of an abus e of di screti on o r mani fest i njusti ce, Schi ndler v. Schi ndler, 776 P.2d 84, 87 (Utah Ct. App. 1989). “Fin dings of fact, whether based on or al or documentary evidenc e, shall not be set asi de unles s clearly err oneous, and due reg ard shall be given to the oppor tuni ty of the tr i al court to judge the credibi li ty of the wi tnesses.” Utah R. Ci v. P. 52(a).

ANALYS IS

I. The Di stric t Co urt Judge Di d Not Plai nly Err

i n Not Recusing Sua S ponte.

¶11 At or al arg ument before thi s court, Father sti pulated that he rais es t hi s ar gument for the fi r st t ime o n appeal. Havin g fai led to proper ly preser ve the i ssu e of judi ci al bi as for thi s court’s rev i ew, Father seeks rev i ew under the plain err or doctrine. To prev ai l in a plain err or rev i ew, an appell a nt mus t show that “‘(i ) [a]n err or exis ts; (i i ) the err or should have been obvious to the tr i al court; and (i i i ) the err or i s harmful.’” State v. Davis , 2013 UT App 228, ¶ 10, 311 P.3d 538 (quoting State v. Dun n , 850 P.2d 1201, 1208 (Utah 1 9 9 3 )). “If any one of these requirements i s not met, plain err o r i s not establi shed.” S tate v. Dean , 2004 UT 63, ¶ 15, 95 P.3d 276 (ci tation and int ernal quotat i on marks omi tte d). Father clai ms that the di stric t court judge err ed “by fai ling to recuse hi mself after giving

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a speech on the credibil i ty of the [cu stody] evaluato r before the wi tness took the stand.” 1

¶12 Utah’s Code of Judi ci al Conduct require a judge to di squali fy hi mself i n any proceeding where “ t he judge’ s i mpartiali ty mi ght rea sonably be questi oned.” Utah Code Jud. 2 C o nd uct R. 2.11. The questi on of a judge’ s i mpartiali ty is deter mined by view i ng the questi on thro ugh the eyes of “a reasonable person, knowi ng a l l the c i rcu m s tan c e s

. ” W e s t J o r d an City

v. Goo dman , 2006 UT 27, ¶ 22, 135 P.3d 874; see also Madsen v. Pruden tial Fed. Sav. & Loan Ass’n , 767 P.2d 538, 547 (U tah 1988) (conc luding that there was no evidenc e of di squali fyi ng bi as when the judge’ s remark was “[v]i ewed in i ts entirety and in the context

1. At or al argument befor e this court, F ather’ s counsel ar gued for the fi rst tim e that the di stric t court judge’ s statement that Father’ s exper t was “thi ck” was clearly a comment on F a t he r ’ s exper t’s mental abi li ties and supp or ts Father ’s main arg ument that the judge was unfai rly bi ased

. Ge nerally, thi s court wi ll not consi der arg uments rais ed for the fi rst tim e a t o r a l arg ument. See McCleve Props., LLC v. D. Ray Hult Family Ltd. P’ship , 2013 UT App 185, ¶ 11 n.2, 307 P.3d 650. In any event, view ed in context, the dist r ict court’s statement was a comment on the exper t’s accen t and not on hi s intellectual capab i li ty.

2. Utah’s Code of Judi ci al Conduct “contemplates di squali fi cati on where, for i nstan ce , a judge has prior knowledge of evidenti ary facts, i s re lated to a party or an atto rney, has a close soci al or professi onal relat i onshi p wi th a party or an atto rney, was involv ed i n the case at ha nd befo re becoming a judge, or has a financi al or proper ty i ntere st that could be affec ted by the outcome of the proceeding. In other words, the bi as or prej udi ce mus t usu a l l y s te m from an ext raj udi ci al source, not from occurrences in the p r o ce edi ngs before the judge.” State v. Mungui a, 2011 UT 5, ¶ 1 7, 253 P.3d 1082 (em phasi s omi tte d) (c i tation and internal quotat i on marks omitted).

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i n whi ch that statement wa s ma de”). “Each judge bri ngs to the bench the exper i ences of li fe, both personal and professi o nal. A li feti me of exper i ences that have ge ne r a t e d a numb er of gener al attitudes cannot be left in chambers when a judge take s the bench .” Madsen , 767 P.2d at 54 6

. “Mer e ‘expr essi ons of i mpati ence, di ssati sfac tion, annoyance, and even anger,’ are insu ffi ci ent to establi sh the exis tence of bi as or partiali ty.” C am p bel l, Maa ck & Sessi ons v. Debry, 2001 UT App 397, ¶ 25, 38 P.3d 984 (quoti ng Liteky v. United S tat es , 510 U.S. 540, 555–56 (1994)).

¶13 Accordi ng to Father , “the court below commented ext ensi vely ” on the “strengt h of the custody evaluato r” and, “[w] i th ou t kn ow in g wh a t e vi d e n ce would be presented, the [judge] made clear he already planned to give si gni fi cant wei ght to whatever [the cus tody evaluato r] sai d,” plac in g Fa the r “ a t a seri ous di sadvantage.” When Father made i t clear that he intended to use hi s own exper t to rebut Dr. Malov i ch’s recommendati on and repo rt, Father clai ms the court “offer e d d i sdain for [Father ’s] effo r ts” and stated that i t was “‘up to [Father ] to deter mine whether or not [he] thi nks [the court] i s stupi d.’”

¶14 But Father mi sch aracter i zes what he calls the di stric t court judge’ s “speech on the credibi li ty” of Dr. Malov i ch. In view ing the comments in context, a reasonable person would c onclude, as we do, that the judge’ s comments di d not evinc e any di sq ua l ify ing bi as. At the beginning of tr i al, the di stric t court judge addressed Father ’s motion in li mine to exclude Dr. M alovich ’s cus tody evaluation repo rt and to prev ent her from testif yin g

. Th e di stric t court j udge stated,

You fi led some i ntere sting motio n s lately sending me copi es of thi ngs that you don’t w ant m e to consi der, whi ch i s i ntere sti ng; arg uing about repo rt s that are not gener ally admi tte d into evidenc e anyway; taking swi pes at a prominen t and ver y credi ble e xper t; maki ng arg ument that assu mes that the Cour t i s

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ei ther too stupi d or lacks exper i ence in these types of matter s.

I’v e been on the bench 23 year s, hearin g these kin ds of cases

. I know what I’m doin g and I know what the most i mport ant thin gs are in these c ases. I guess i t’s up to you to deter mine whether or not you think I’m stupi d, but based on what I read in your memoranda, the drug i ssu e . . . that y ou’ve been so involv ed i n i s
an ext remely small part of Dr. Malov i ch’s factual basi s for her conclu si on and for her re c om m e n d a tion.

It look s li ke i t was just blown way out of propo rt i on and, now, what was a ver y small i ssue becomes a
ver y gr eat one. I don’t accept the petiti oner’ s premi se here that Dr. Malov i ch sh o uld be precluded from testif yin g to what she f ound. It’s legiti mate. . . .

[F ather] and hi s wi tnesses can tell me, all day l o ng , that reg ular contro lled sub stance use, pain kil l ers, do n’ t affec t the way a person approaches li fe,

r e l a t i o n s h i p s , p a r e n t i n g , j o b s , e t c

. I h a v e twenty-thr ee year s of exper i ence that tell me other wi se and, exactly how i t affec ts thi s particu lar

case and these particu lar ki ds, that’s s omethin g that I’m wi lling to li sten to and make a deter minati on, but I, c ert ainly, don’t accept the basi c premi se that drug

use of any kin d, whether i t’s legiti mat e p r escribed pain kill ers, [ doesn’t] have any effect on what w e’re doin g here becau se I thi nk they , probably, do. . . .

I want you both t o k no w that I don’t come to thi s
case wi th any preconcei ved i deas about what the outcome may be. I’v e learned, too many tim es, that what look s like, on the outsi de, once you g et into i t, you hear the evidenc e, the t e st i mony, i t becomes a tot ally di fferent scenari o.

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I alw ays have and I wi ll conti nue to do what I t hink i s [in] the best i ntere sts of the chi ldr e n. Th at’s the most i mport ant thin g here

. . . . Earlier, I i ndi cated tha t I respected Dr. Malov i ch’s credentials and her exper tis e in t hi s ar ea

. Ho wever, she has testifi ed in my Court before and I have found those credentials and her exper tis e to be ver y go od. Do I always agr ee wi th her? Absolutely not. Do I always follow her recommendati ons, absolutely not. I beli eve she work s hard a t prov i ding honest i nformation that wi ll assi st t he C o ur t and, as I sai d, someti mes, i t’s i nformation that I find ver y he lpful and, other tim es, I h ave a di fferent opini on than she does after I ’ve hear d all the evidenc e.

¶15 The judge’ s comment, “I guess i t’s up to you to deter mine whether or not you thi nk I’m stupi d,” was in response to Father ’s motion i n li mine i n whi ch he arg ued th a t Dr

. Malov i ch’s opin ing
a bo ut hi s drug use should be excluded. The comment was not di rected at Father obtaining hi s own e x p e r t to challen ge the methodolo gy o f Dr

. Malov i ch’s cus tody evaluation but was in response to F ather’ s argument that hisprescri ption- drug use was i rr elevant to a cu st ody deter minati on. The di stric t court judge explain ed, “[I] certainly, don’t accept the basi c premi se that drug

use of any kin d, whether i t’s legiti mate prescribed pain kill ers, [doesn’t] have any effect on what we’re doin g here becau se I thi nk t he y, probably, do.” We agr ee wi th Father to thi s ext ent: a judg e should not act i n a way to suggest that he or she has take n personal offense at a motion based on legal gr ounds. N e v e rt heless, we conclu de that the judge’ s comments here do not demonstrate bi as.

¶16 Turning to the j udge’s comment about Dr. Malov i ch b ei ng
a “credible exper t,” the di stric t court judge clari fi ed hi s statement: “[S]he has testifi ed in my Court before and I have found those creden t ia ls and her exper tis e to be ver y goo d. Do I always agr ee
w i t h h e r ? A b s o l u t e l y n o t

. D o I a l w a y s f o l l o w h e r

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recommendati ons, absolutely not.” Vi ewed in context, the di stric t

co ur t judge’ s comments addressed F ather’ s mot i on in limine and explain ed the court ’s ruling that Dr. Malov i ch c ould testif y to the findings in her cus tody evaluation becau se of her “credentials and her exper tis e i n thi s area.” The judge also explain ed that he di d not have any “preconcei ved i deas” about Dr

. Malov i ch’s cus tody

recomm e n dation or her repo rt

. None of these comments rev eal any favo r it ism towar d Mot her or any i ll wi ll towar d Father

. Accordi ngly, the judg e ’ s comments on Dr. Malov i ch’s credibi li ty do not ris e to the level of unac ceptable bi as or prej udi ce and do not demonstrate any err or commi tte d by the di stric t co ur t j ud ge. See Debry, 2001 UT App 397, ¶¶ 25–27.

¶17 Mor eov er, Father has fai led to show how hi s clai med err or should have been o bvi ous t o th e di stric t court. Father di d not fi le

a motion to di squali fy the di stric t court judge, nor di d Father bri ng hi s clai ms of unfai r bi as to t he a t t e nti on of the judge. Father has also fai led to ci te s ett led appellate law suffi ci ent to put the di stric t court judge on notic e of any obli gation to sua sponte recuse hi mself based on the court’s comments di scu ssed ab ov e.

¶18 Becaus e the di stric t court judge had no d ut y t o recuse and Father has fa ile d to establi sh that any obvious err or occurred, Father ’s plain err or clai m fai ls. See S tat e v. Dean , 2004 UT 63, ¶ 15, 95 P.3d 276.

II. The Di stric t Co urt Di d Not Abuse Its Di screti on in Awardi ng

Pri mary Custody of the Chil dren to Mot her.

¶19 Father arg ues that the di stric t court abus ed i ts di screti on by alter i ng the tempor ary cus tody arr angement and awarding prim ary cus tody to Mot her. Mot her requests that we rej ect Fa the r’s arg ument becau se Father has fail e d to marshal the evidenc e that

wa s p r e sent ed at tr i al. However, in li ght of our supreme court’s explanation of marshaling in State v. Nielse n , 2014 UT 10, 326 P.3d 645, we decline Mot her’s r equest to sum mari ly rej ect Father ’s arg ument. Instead, “we address the merits of [Father ’s] arg uments

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and consi der any mar sh aling defi ci enci es as part of our ov erall evaluation of whether [Father ] has met hi s burden of persuasi on on appeal.” Tobler v. To bler, 2014 UT App 239, ¶ 15, 337 P.3d 296.

¶20 Father arg ues that due to the di stric t court judge’ s bi as, the

co ur t abus ed i ts di screti on by awardi ng the cus tody “exactly a s propo sed by Malov i ch” and gr anti ng prim ary cus tody to Mot her. Father i denti fi es two err or s he percei ves in the court’s deci si on: fi rst, that the “court’s bi as in favor of Malov i ch” l e d the court to adopt uns upporte d findings of fact and “bi zarr e conclu si ons” and, second, that the court abu sed i ts di screti on in alter ing the exis tin g tempor ary cus tody arr angement by rely ing on Dr. Malov i ch’s testim ony ins tead of F ather’ s expert ’s opi ni on.

¶21 We di sagree wi th Father ’s clai m that the di stric t court judge awarded cus tody “exactly as propo sed” by Dr. Malov i ch. Father testifi ed at tr i al that he beli eved Dr. Malov i ch’s propo sed cus tody sch edule was too di srupti ve and that the chi ldren needed a sens e of stabi li ty. In fact, the cour t a g r e e d wi th Father and rej ected Dr. Malov i ch’s recommendati on that Father have cus tody on di fferent ni ghts on alter nati ng weeks. Instead, the cour t o rder ed that the parties atte mpt to agr ee to one we e k d a y per week where Father would have the chi ldren for the ni ght and unt il the following mornin g, and i f they could not agr ee on a day, the court would desi gnate F ather’ s mi dweek ov ernight day.

¶22 In i ts findings, the di stric t court found that both Mot her and Father had sui table resi dences ; that at the tim e of tr i al, both parents

were acti vely i nvolv ed in their chi ldren’s li ves and di splayed stro ng mo t ivation to parent the chi ldren; that the chi ldren would benefi t from an ongo i ng posi tive relat i onship wi th both Mot her and Father ; a nd that the chi ldren appeared to have “an equal strengt h bond to both of their parents.” However , the co ur t also found that Mot her maintai ned stead y full- tim e employment, whi le the c ou rt h a d “ s e ri ou s concerns” about Father ’s conti nued att e m p ts to devel o p hi s own bus iness ; that Father had exper i enced emotional di ffi culti es duri ng t he parties’ separation and had

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“ unn e c e s s a ri l y invo l ve d the chi ldren in hi s emotional di stress”; a n d that though the chi ldren were “doin g well” in t he cus todial

arr angement under the tempor ary or der, the “curr e nt amount of contact that the parties’ youngest daughter has wi th [Mot h e r] i s not adequate for [t he chi ld’s] n eeds.”

¶23 First, Father has no t demonstrate d that the di stric t court’s findings were uns upporte d by the evidenc e. Fat her clai ms that

some of the court’s fi ndings were “out of date” and based on past conduc t, but Fathe r ha s fai led to show why the court could not consi der findings that were based on previous event s. Utah Code secti on 30-3-10 states that “the court shall consi der the b e s t in terests of the chi ld and, among other factors the court finds re l e v a nt , . . . the past conduc t

. . . of each of the parties.” Utah Code A nn. § 30-3-10( 1)(a) (Lexi sNexi s 2010); Utah R. Jud. Admin. 4-903(5)

. The court’s ruli ng i s replet e wi th compari sons of competi ng evidenc e and demonstrate s the di str ict co urt’s due consi derat i on of the factors li sted in Utah C o d e se ct i on 30-3-10 and rule 4-903 of the Utah Rules of Judi ci al Admini str a t ion, inclu ding the preex i sti ng tempor ary cus tody arr angement. 3

3. Father cla ims that the conti nuati on of a func tioning cus tody

arr angement i s “a si gni fi cant factor” in a cus tody d e t e rmi nati on. Whi le i t i s o ne factor that mus t be consi dered, our supreme court has stated that a di stric t c ourt i s entitled “to accord no more or no less si gni fi canc e to the exis tin g custody arr angement than i t deem[s] appropr i ate.” Tucker v. Tucker, 910 P.2d 1209, 1216 (Utah 1996); cf. id. at 1215–16 (“A t emporar y cus tody or der i s only that, tempor ary

. It i s effecti ve only unti l a fully informed cus tody deter minati on can be made

. . . . If a tempor ary or der of cus tody

were to be g iv en permanent status

. . . no party would ever sti pulate to a tempor ary a r r a ng ement.”). Here, the di stric t court consi dered the exis tin g arr angem e n t b u t, b a s e d on i ts c on s i derat i on of a l l r e l evant factors, conclu ded that changing the prim ary
cus todial parent from Father to Mot her was in the best intere sts of the chi ldren.

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¶24 Second, Father clai ms that the court’s finding that he too k “hi gh quanti ties ” of contro lled sub stances was uns upporte d by the evidenc e. However, i t does not appea r that the court consi dered thi s fin d i ng as wei ghi ng again st Father , as the court ulti mately conclu ded that there was not “suffi ci ent evidenc e to conclu de that [Father ’s] use of prescri ption medi cati ons in the l a s t two year s since the parties’ separation has i mpai red hi s parenting, endangered the parties’ chi ldren, or prog ressed to the poin t of addi cti on or moving

on to harder drugs.” In i ts or al ruli ng, the di stric t court had further explain ed, “Whi le i t i s a gener al concern t hat people who u se t he quanti ty of drugs that [Father ] was using can be imp a ired, there

was no evidenc e brought before the Court that t he r e was i mpai rment on hi s part that would endanger the chi ldren or caus e hi m to not care for them in a manner that they n eeded to be cared for

. . . .” Accordi ngly, even i f t he di stric t court err ed in ma k ing a finding about the degr e e o f F ather’ s drug use, that err or was harmless becau se the di strict court deci ded the ulti mate i ssu e reg ardin g drug use in Father ’s favor

.
¶25 Fin ally, i t was not an abus e of di screti on for the di stric t court t o give more wei ght to Dr. Malov i ch’s testim ony than to t he testim ony of other wi tnesses, inclu ding the parties’ so n’ s scout leader, a t e a cher, a nei ghbor of Father ’s, and Father ’s exper t. “[D] eter minati ons reg ardin g the wei ght to be giv e n to the testim ony of wi tnesses, inclu ding exper t w i tnesses, are wi thi n the prov i nce of t he finder of fact, [and] we wi ll not second guess a court’s deci si ons about evidenti ary wei ght and credib i li ty if there i s a reasonable basi s i n the recor d to supp or t them.” Barrani v. Barrani, 2014 UT App 204, ¶ 6, 334 P.3d 994. Asi de from hi s clai m of judi ci al bi as, whi ch we have already r ej e ct ed, Father has not shown that the di stric t court gav e inappropr i ate we i ght to Dr. Malov i ch’s testim ony. Thus, we declin e to di sturb the court’s credibi li ty det ermin ations

.
¶26 We there fore conclu de that Father has fai le d to show that the court’s findings and deci si on to a w a rd Mo ther prim ary cus tody

20130060-CA 12 2015 UT App 60Ful lmer v. F ullm er

of the chi ldren were un su pport ed by the evidenc e or an abus e of di screti on.

III . We Decline to A ward Att or ney Fee s to Mo ther.

¶27 Mot her clai ms that she should be award ed atto rney fees and costs becau se Father ’s bri ef fai led to comply wi th rule 24(k) of the Utah Rules of Ap p e l late Procedure. “The deci si on to asses s atto rney fees under rule 24(k) is a matter of di scr e t io n. ” Wilson v. IHC Hosps., Inc. , 2012 UT 43, ¶ 4 n.1, 289 P.3d 369. Despi te Father ’s fai lure to demonstrate err or in the di stric t court ’s deci si on, we do not agr ee wi th Mot her that there i s an “ut t e r l a ck of merit to Father ’s gr ounds for appeal.” Nor are any techni cal defi ci enci es in Father ’s bri efing so egr egious as to merit sanc tions under rule 24(k). Acco r d ing l y, we decline Mot her’s request for an award of her appellate at tor ney fees.

CONCLUS ION

¶28 We conclu de that the di stric t court judge di d not plainly err by not recusing sua sponte and proper ly exer ci sed i ts di screti on in alter i ng the tempor ary cus tody a g r e e ment by awardi ng Mot her

cus tody of the chi ldren. We ther efore affi rm.

20130060-CA 13 2015 UT App 60