2015 UT App 60

_________________________________________________________

THE UTAH COURT OF APPEALS

JARED WILLIAM FULLMER,

Petitioner and Appellant,

v.

KELLI ANN FULLMER,

Respondent and Appellee.

Opinion

No. 20130060-CA

Filed March 19, 2015

Second District Court, Farmington Department

The Honorable Michael G. Allphin

No. 104701561

Mary C. Corporon, Attorney for Appellant

J. Ed Christiansen and Nathan Whittaker,

Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in

which JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY

concurred.

CHRISTIANSEN, Judge:

¶1 Jared William Fullmer (Father) appeals from the district

court’s award of primary custody of the parties’ two children to

Kelli Ann Fullmer (Mother). Father argues that the case should be

remanded for a new trial on the custody issue because the district

court judge failed to recuse himself sua sponte after the judge

indicated that the custody evaluator was “a prominent and very

credible expert.” Father also asserts that the district court abused

its discretion by altering the parties’ pretrial custody arrangement

and awarding primary custody to Mother. We affirm.
Fullmer v. Fullmer

BACKGROUND

¶2 Father and Mother were married in July 2003. Two children

were born during the marriage. In September 2010, Father filed a

petition for divorce.

¶3 The parties appeared before a domestic-relations

commissioner, who recommended that Father be awarded

temporary primary custody of the two children. The district court

adopted the commissioner’s recommendations and entered

temporary orders designating Father as the primary custodial

parent. Mother was awarded parent-time consisting of Wednesday

overnights, shared holidays, and a majority of weekends.

¶4 Mother and Father stipulated to the appointment of Dr.

Natalie Malovich as the custody evaluator in the case. The court

then ordered Dr. Malovich to conduct a child-custody evaluation.

After Dr. Malovich completed her evaluation, she participated in

a custody settlement conference with the parties. At that

conference, Dr. Malovich recommended that the parties share joint

legal and physical custody but recommended that Mother be the

primary custodial parent. Under Dr. Malovich’s recommendation,

Father would receive parent-time, consisting of every other

weekend and two weeknight overnights on alternating weeks. Dr.

Malovich also recommended shared holidays and that Father be

awarded any “non-holiday” days that the children had off from

school. The parties were unable to reach an agreement and the case

was certified for trial.

¶5 After the settlement conference, Mother moved to have Dr.

Malovich prepare a written report of her custody evaluation and

recommendation. In that report, Dr. Malovich stated her belief that

Father was taking high quantities of pain medication andexplained

her concern that this could lead to substance-abuse problems in the

future. Afterreceiving a copy of Dr.Malovich’s report, Father hired

an expert to review Dr. Malovich’s custody evaluation and

examine her methodology.

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¶6 Before trial, Father moved to exclude Dr. Malovich’s report

and to limit her testimony. Father argued that Dr. Malovich’s

report was unreliable, that she should not be allowed to comment

on Father’s prescription-drug use because she had no specialized

training in prescription drugs, that Father’s prescription-drug use

was irrelevant to the custody determination, and that Dr. Malovich

had acted unlawfully in obtaining information on Father’s history

of prescription-drug use.

¶7 In September 2012, the court held a bench trial to determine

custody of the children, the children’s primary residence, parenttime, and child support. At the beginning of the trial, the district

court judge addressed Father’s motion in limine. In denying the

motion, the district court judge stated that Father appeared to be

“taking swipes at a prominent and very credible expert.” The judge

also criticized the arguments raised in Father’s motion, stating, “I

guess it’s up to you to determine whether or not you think I’m

stupid.” Father did not object to these comments when they were

made and did not file a motion to disqualify the district court judge

pursuant to rule 63 of the Utah Rules of Civil Procedure.

¶8 The court denied Father’s motion to exclude Dr. Malovich’s

report and testimony, and trial proceeded. After trial, the court

orally announced its findings of fact and conclusions of law. The

court memorialized that ruling and entered a decree of divorce on

December 20, 2012. In the decree, the court ordered that the parties

share joint legal and physical custody of their children and

designated Mother as the primary custodial parent. Father was

awarded liberal parent-time similar to that recommended by Dr.

Malovich. Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Father contends that the district court judge should have

recused himself sua sponte after commenting on the qualifications

of the custody evaluator. “Determining whether a trial judge

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committed error by failing to recuse himself or herself under the

Utah Code of Judicial Conduct . . . is a question of law, and we

reviewsuch questions for correctness.” State v. Alonzo, 973 P.2d 975,

979 (Utah 1998).

¶10 Father also argues that thedistrict court abused its discretion

in altering the existing temporary custodial arrangement and

awarding primary custody to Mother. A district court is given

broad discretion in making child-custody awards, Myers v. Myers,

768 P.2d 979, 982 (Utah Ct. App. 1989), and its decision will not be

disturbed absent a showing of an abuse of discretion or manifest

injustice, Schindler v. Schindler, 776 P.2d 84, 87 (Utah Ct. App. 1989).

“Findings of fact, whether based on oral or documentary evidence,

shall not be set aside unless clearly erroneous, and due regard shall

be given to the opportunity of the trial court to judge the credibility

of the witnesses.” Utah R. Civ. P. 52(a).

ANALYSIS

I. The District Court Judge Did Not Plainly Err

in Not Recusing Sua Sponte.

¶11 At oral argument before this court, Father stipulated that he

raises this argument for the first time on appeal. Having failed to

properly preserve the issue of judicial bias for this court’s review,

Father seeks review under the plain error doctrine. To prevail in a

plain error review, an appellant must show that “‘(i) [a]n error

exists; (ii) the error should have been obvious to the trial court; and

(iii) the erroris harmful.’” State v. Davis, 2013 UT App 228, ¶ 10, 311

P.3d 538 (quoting State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993)).

“If any one of these requirements is not met, plain error is not

established.” State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276 (citation

and internal quotation marks omitted). Father claims that the

district court judge erred “by failing to recuse himself after giving

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a speech on the credibility of the [custody] evaluator before the

witness took the stand.”1

¶12 Utah’s Code of Judicial Conduct require a judge to

disqualify himself in any proceeding where “the judge’s

impartiality might reasonably be questioned.” Utah Code Jud. 2

Conduct R. 2.11. The question of a judge’s impartiality is

determined by viewing the question through the eyes of “a

reasonable person, knowing allthe circumstances.”WestJordan City

v. Goodman, 2006 UT 27, ¶ 22, 135 P.3d 874; see also Madsen v.

Prudential Fed. Sav. & Loan Ass’n, 767 P.2d 538, 547 (Utah 1988)

(concluding that there was no evidence of disqualifying bias when

the judge’s remark was “[v]iewed in its entirety and in the context

1. At oral argument before this court, Father’s counsel argued for

the first time that the district court judge’s statement that Father’s

expert was “thick” was clearly a comment on Father’s expert’s

mental abilities and supports Father’s main argument that the

judge was unfairly biased. Generally, this court will not consider

arguments raised for the first time at oral argument. 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, viewed in context, the district

court’s statement was a comment on the expert’s accent and not on

his intellectual capability.

2. Utah’s Code of Judicial Conduct “contemplates disqualification

where, for instance, a judge has prior knowledge of evidentiary

facts, is related to a party or an attorney, has a close social or

professional relationship with a party or an attorney, was involved

in the case at hand before becoming a judge, or has a financial or

property interest that could be affected by the outcome of the

proceeding. In other words, the bias or prejudice must usually stem

from an extrajudicial source, not from occurrences in the

proceedings before the judge.” State v. Munguia, 2011 UT 5, ¶ 17,

253 P.3d 1082 (emphasis omitted) (citation and internal quotation

marks omitted).

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in which that statement was made”). “Each judge brings to the

bench the experiences of life, both personal and professional. A

lifetime of experiences that have generated a number of general

attitudes cannot be left in chambers when a judge takes the bench.”

Madsen, 767 P.2d at 546. “Mere ‘expressions of impatience,

dissatisfaction, annoyance, and even anger,’ are insufficient to

establish the existence of bias or partiality.” Campbell, Maack &

Sessions v. Debry, 2001 UT App 397, ¶ 25, 38 P.3d 984 (quoting Liteky

v. United States, 510 U.S. 540, 555–56 (1994)).

¶13 According to Father, “the court below commented

extensively” on the “strength of the custody evaluator” and,

“[w]ithout knowing what evidence would be presented, the [judge]

made clear he already planned to give significant weight to

whatever[the custody evaluator] said,” placing Father “at a serious

disadvantage.” When Father made it clear that he intended to use

his own expert to rebut Dr. Malovich’s recommendation and

report, Father claims the court “offered disdain for [Father’s]

efforts” and stated that it was “‘up to [Father] to determine

whether or not [he] thinks [the court] is stupid.’”

¶14 But Father mischaracterizes what he calls the district court

judge’s “speech on the credibility” of Dr. Malovich. In viewing the

comments in context, a reasonable person would conclude, as we

do, that the judge’s comments did not evince any disqualifying

bias. At the beginning of trial, the district court judge addressed

Father’s motion in limine to exclude Dr. Malovich’s custody

evaluation report and to prevent her from testifying. The district

court judge stated,

You filed some interesting motions lately sending me

copies of things that you don’t want me to consider,

which is interesting; arguing about reports that are

not generally admitted into evidence anyway; taking

swipes at a prominent and very credible expert;

making argument that assumes that the Court is

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either too stupid or lacks experience in these types of

matters.

I’ve been on the bench 23 years, hearing these kinds

of cases. I know what I’m doing and I know what the

most important things are in these cases. I guess it’s

up to you to determine whether or not you think I’m

stupid, but based on what I read in your memoranda,

the drug issue . . . that you’ve been so involved in is

an extremely small part of Dr. Malovich’s factual

basis for her conclusion and for her recommendation.

It looks like it was just blown way out of proportion

and, now, what was a very small issue becomes a

very great one. I don’t accept the petitioner’s premise

here that Dr. Malovich should be precluded from

testifying to what she found. It’s legitimate. . . . 

[Father] and his witnesses can tell me, all day long,

that regular controlled substance use, pain killers,

don’t affect the way a person approaches life,

relationships, parenting, jobs, etc. I have

twenty-three years of experience that tell me

otherwise and, exactly how it affects this particular

case and these particular kids, that’s something that

I’m willing to listen to and make a determination, but

I, certainly, don’t accept the basic premise that drug

use of any kind, whether it’s legitimate prescribed

pain killers, [doesn’t] have any effect on what we’re

doing here because I think they, probably, do. . . . 

I want you both to know that I don’t come to this

case with any preconceived ideas about what the

outcome may be. I’ve learned, too many times, that

what looks like, on the outside, once you get into it,

you hear the evidence, the testimony, it becomes a

totally different scenario.

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I always have and I will continue to do what I think

is [in] the best interests of the children. That’s the

most important thing here. . . .

Earlier, I indicated that I respected Dr. Malovich’s

credentials and her expertise in this area. However,

she has testified in my Court before and I have found

those credentials and her expertise to be very good.

Do I always agree with her? Absolutely not. Do I

always follow her recommendations, absolutely not.

I believe she works hard at providing honest

information that will assist the Court and, as I said,

sometimes, it’s information that I find very helpful

and, other times, I have a different opinion than she

does after I’ve heard all the evidence.

¶15 The judge’s comment, “I guess it’s up to you to determine

whether or not you think I’m stupid,” was in response to Father’s

motion in limine in which he argued that Dr. Malovich’s opining

about his drug use should be excluded. The comment was not

directed at Father obtaining his own expert to challenge the

methodology of Dr. Malovich’s custody evaluation but was in

response to Father’s argument that his prescription-drug use was

irrelevant to a custody determination. The district court judge

explained, “[I] certainly, don’t accept the basic premise that drug

use of any kind, whether it’s legitimate prescribed pain killers,

[doesn’t] have any effect on what we’re doing here because I think

they, probably, do.” We agree with Father to this extent: a judge

should not act in a way to suggest that he or she has taken personal

offense at a motion based on legal grounds. Nevertheless, we

conclude that the judge’s comments here do not demonstrate bias.

¶16 Turning to the judge’s comment about Dr. Malovich being

a “credible expert,” the district court judge clarified his statement:

“[S]he has testified in my Court before and I have found those

credentials and her expertise to be very good. Do I always agree

with her? Absolutely not. Do I always follow her

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recommendations, absolutely not.” Viewed in context, the district

court judge’s comments addressed Father’s motion in limine and

explained the court’s ruling that Dr. Malovich could testify to the

findings in her custody evaluation because of her “credentials and

her expertise in this area.” The judge also explained that he did not

have any “preconceived ideas” about Dr. Malovich’s custody

recommendation or her report. None of these comments reveal any

favoritism toward Mother or any ill will toward Father.

Accordingly, the judge’s comments on Dr. Malovich’s credibility

do not rise to the level of unacceptable bias or prejudice and do not

demonstrate any error committed by the district court judge. See

Debry, 2001 UT App 397, ¶¶ 25–27. 

¶17 Moreover, Father has failed to show how his claimed error

should have been obvious to the district court. Father did not file

a motion to disqualify the district court judge, nor did Father bring

his claims of unfair bias to the attention of the judge. Father has

also failed to cite settled appellate law sufficient to put the district

court judge on notice of any obligation to sua sponte recuse himself

based on the court’s comments discussed above.

¶18 Because the district court judge had no duty to recuse and

Father has failed to establish that any obvious error occurred,

Father’s plain error claim fails. See State v. Dean, 2004 UT 63, ¶ 15,

95 P.3d 276.

II. The District Court Did Not Abuse Its Discretion in Awarding

Primary Custody of the Children to Mother.

¶19 Father argues that the district court abused its discretion by

altering the temporary custody arrangement and awarding

primary custody to Mother. Mother requests that we reject Father’s

argument because Father has failed to marshal the evidence that

was presented at trial. However, in light of our supreme court’s

explanation of marshaling in State v. Nielsen, 2014 UT 10, 326 P.3d

645, we decline Mother’s request to summarily reject Father’s

argument. Instead, “we address the merits of [Father’s] arguments

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and consider any marshaling deficiencies as part of our overall

evaluation of whether [Father] has met his burden of persuasion on

appeal.” Tobler v. Tobler, 2014 UT App 239, ¶ 15, 337 P.3d 296.

¶20 Father argues that due to the district court judge’s bias, the

court abused its discretion by awarding the custody “exactly as

proposed by Malovich” and granting primary custody to Mother.

Father identifies two errors he perceives in the court’s decision:

first, that the “court’s bias in favor of Malovich” led the court to

adopt unsupported findings of fact and “bizarre conclusions” and,

second, that the court abused its discretion in altering the existing

temporary custody arrangement by relying on Dr. Malovich’s

testimony instead of Father’s expert’s opinion.

¶21 We disagree with Father’s claim that the district court judge

awarded custody “exactly as proposed” by Dr. Malovich. Father

testified at trial that he believed Dr. Malovich’s proposed custody

schedule was too disruptive and that the children needed a sense

of stability. In fact, the court agreed with Father and rejected Dr.

Malovich’s recommendation that Father have custody on different

nights on alternating weeks. Instead, the court ordered that the

parties attempt to agree to one weekday per week where Father

would have the children for the night and until the following

morning, and if they could not agree on a day, the court would

designate Father’s midweek overnight day.

¶22 In its findings, the district court found that both Mother and

Father had suitable residences; that at the time of trial, both parents

were actively involved in their children’s lives and displayed

strong motivation to parent the children; that the children would

benefit from an ongoing positive relationship with both Mother

and Father; and that the children appeared to have “an equal

strength bond to both of their parents.” However, the court also

found that Mother maintained steady full-time employment, while

the courthad“serious concerns” about Father’s continued attempts

to develop his own business; that Father had experienced

emotional difficulties during the parties’ separation and had

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“unnecessarily involvedthe children in his emotional distress”; and

that though the children were “doing well” in the custodial

arrangement under the temporary order, the “current amount of

contact that the parties’ youngest daughter has with [Mother]isnot

adequate for [the child’s] needs.”

¶23 First, Father has not demonstrated that the district court’s

findings were unsupported by the evidence. Father claims that

some of the court’s findings were “out of date” and based on past

conduct, but Father has failed to show why the court could not

consider findings that were based on previous events. Utah Code

section 30-3-10 states that “the court shall consider the best interests

of the child and, among other factors the court finds relevant, . . . 

the past conduct . . . of each of the parties.” Utah Code Ann.

§ 30-3-10(1)(a)(LexisNexis 2010); Utah R. Jud. Admin. 4-903(5). The

court’s ruling is replete with comparisons of competing evidence

and demonstrates the district court’s due consideration of the

factors listed in Utah Code section 30-3-10 and rule 4-903 of the

Utah Rules of Judicial Administration, including the preexisting

temporary custody arrangement.3

3. Father claims that the continuation of a functioning custody

arrangement is “a significant factor” in a custody determination.

While it is one factor that must be considered, our supreme court

has stated that a district court is entitled “to accord no more or no

less significance to the existing custody arrangement than it

deem[s] appropriate.” Tucker v. Tucker, 910 P.2d 1209, 1216 (Utah

1996); cf. id. at 1215–16 (“A temporary custody order is only that,

temporary. It is effective only until a fully informed custody

determination can be made . . . . If a temporary order of custody

were to be given permanent status . . . no party would ever

stipulate to a temporary arrangement.”). Here, the district court

considered the existing arrangement but,basedonits consideration

of all relevant factors, concluded that changing the primary

custodial parent from Father to Mother was in the best interests of

the children.

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¶24 Second, Father claims that the court’s finding that he took

“high quantities” of controlled substances was unsupported by the

evidence. However, it does not appear that the court considered

this finding as weighing against Father, as the court ultimately

concluded that there was not “sufficient evidence to conclude that

[Father’s] use of prescription medications in the last two years since

the parties’ separation has impaired his parenting, endangered the

parties’ children, or progressed to the point of addiction or moving

on to harder drugs.” In its oral ruling, the district court had further

explained, “While it is a general concern that people who use the

quantity of drugs that [Father] was using can be impaired, there

was no evidence brought before the Court that there was

impairment on his part that would endanger the children or cause

him to not care for them in a manner that they needed to be cared

for . . . .” Accordingly, even if the district court erred in making a

finding about the degree of Father’s drug use, that error was

harmless because the district court decided the ultimate issue

regarding drug use in Father’s favor.

¶25 Finally, it was not an abuse of discretion for the district court

to give more weight to Dr. Malovich’s testimony than to the

testimony of other witnesses, including the parties’ son’s scout

leader, a teacher, a neighbor of Father’s, and Father’s expert.

“[D]eterminations regarding the weight to be given to the

testimony of witnesses, including expert witnesses, are within the

province of the finder of fact, [and] we will not second guess a

court’s decisions about evidentiary weight and credibility if there

is a reasonable basis in the record to support them.” Barrani v.

Barrani, 2014 UT App 204, ¶ 6, 334 P.3d 994. Aside from his claim

of judicial bias, which we have already rejected, Father has not

shown that the district court gave inappropriate weight to Dr.

Malovich’s testimony. Thus, we decline to disturb the court’s

credibility determinations.

¶26 We therefore conclude that Father has failed to show that

the court’s findings and decision to awardMother primary custody

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of the children were unsupported by the evidence or an abuse of

discretion.

III. We Decline to Award Attorney Fees to Mother.

¶27 Mother claims that she should be awarded attorney fees and

costs because Father’s brief failed to comply with rule 24(k) of the

Utah Rules of Appellate Procedure. “The decision to assess

attorney fees under rule 24(k) is a matter of discretion.” Wilson v.

IHC Hosps., Inc., 2012 UT 43, ¶ 4 n.1, 289 P.3d 369. Despite Father’s

failure to demonstrate error in the district court’s decision, we do

not agree with Mother that there is an “utter lack of merit to

Father’s grounds for appeal.” Nor are any technical deficiencies in

Father’s briefing so egregious as to merit sanctions under rule

24(k). Accordingly, we decline Mother’s request for an award of

her appellate attorney fees.

CONCLUSION

¶28 We conclude that the district court judge did not plainly err

by not recusing sua sponte and properly exercised its discretion in

altering the temporary custody agreement by awarding Mother

custody of the children. We therefore affirm.

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