District Court, Ogden Department The Honorable Ernest W.
Jones No. 134901419
Randall W. Richards, Attorney for Appellant
Deborah L. Bulkeley, Attorney for Appellee.
Diana Hagen authored this Opinion, in which Judges Gregory K.
Orme and Jill M. Pohlman concurred.
Elda Chaparro (Mother) appeals the district court's entry
of judgment by default as a sanction for her failure to pay a
custody evaluator. The judgment awarded Enrique Torero
(Father) sole physical custody of their minor child, A.T.,
modifying the custody arrangement from their divorce decree.
The district court did not take any evidence to support a
finding that a substantial change of circumstances had
occurred or that a transfer in custody was in the child's
best interest. Because the district court did not make the
required findings before entering the judgment by default, it
exceeded its discretion in modifying the existing custody
order. We reverse and remand.
Upon their divorce in September 2014, Mother and Father were
granted joint physical and legal custody of their child, A.T.
Eight months later, Mother filed a petition to modify the
divorce decree based on changed circumstances. Mother sought
sole physical custody of A.T. because Father had moved out of
the area, making joint physical custody impractical. Father
filed an answer denying Mother's allegations and seeking
dismissal for failure to state a cause of action. Father also
filed a motion seeking a court determination of where the
child should go to school as well as a custody evaluation.
At a hearing on the motions, the parties stipulated that A.T.
would attend the school Father selected and agreed to a
custody evaluation regarding Mother's petition to modify.
The court then ordered a custody evaluation, splitting the
cost equally between the parties.
Pursuant to rule 4-903 of the Utah Rules of Judicial
Administration, the domestic relations commissioner held a
settlement conference in which the custody evaluator
participated. When the parties were unable to reach a
resolution, the commissioner certified the case for trial.
The commissioner's pre-trial order provided that either
party could request a written report from the evaluator and
that "both parties shall share the costs of the written
report equally, one-half (1/2) to each."
Father requested a written custody evaluation, and the
evaluator informed the parties that the cost of such a report
was $3, 500, which needed to be paid in full before the
report could be prepared. Father promptly paid the evaluator
for his half.
Roughly two months before trial, the evaluator notified the
court that she had not received payment from Mother and,
consequently, would be unable to submit the report before
trial. Father subsequently filed a motion to continue the
trial as well as a motion for sanctions and attorney fees.
In the motion for sanctions, Father alleged that the custody
evaluator had recommended, during the settlement conference,
that Father "should have physical and legal custody to
the parties' minor child and that [Mother's] parent
time should be substantially reduced." Father also
alleged that Mother had "no intention of complying with
the court's order and paying" the evaluator because
the evaluation was adverse to her. As a sanction for
Mother's failure to pay, Father sought an order awarding
him "the sole physical and legal custody of the
parties' minor child," attorney fees, and other
The district court held a telephone conference with the
parties' attorneys. Father's attorney asserted that
Mother was "flat-out refusing to pay" for the
custody evaluation because "it was readily apparent
[from the rule 4-903 hearing] that the report was very
negative towards [Mother]." Mother's attorney
conceded, "[Father's counsel] is correct, [the
evaluator's] discussion at the 4-903 hearing was not
favorable to [Mother]." Her attorney explained that
Mother did not intend to call the evaluator as a witness at
trial and believed that the evaluator's testimony was
unnecessary given that Father had not filed a counterpetition
seeking sole custody of A.T.
The district court suggested that, if Father was now asking
for sole custody, Father should amend his pleadings to
include that relief. Father's attorney agreed and
indicated that he would immediately file an amended answer
The district court granted the motion to continue but
deferred its ruling on sanctions. The court again ordered
that "both sides pay one-half the cost" of the
written report. The court warned that it might impose
sanctions if Mother persisted in her refusal to pay:
I think I can grant as a sanction custody to the father if
she doesn't pay, and that's kind of why I want her to
pay one half, is because if she continues to take this
position, I'm not going to pay, then to me, a logical
sanction is to say fine, the Court's going to award
custody to the father, but I don't think I can do that
until the pleadings are amended.
The district court issued an order requiring Mother to
immediately pay the evaluator and allowing Father to amend
his pleadings. Father filed an amended answer and
counterpetition to modify the divorce decree by granting him
sole physical and legal custody.
The following month, the district court held a telephone
conference with Father's attorney and Mother, appearing
pro se.Father's attorney explained that Mother
did not pay the evaluator as ordered and had instead offered
to pay $50 per month until the debt was satisfied. Based on
her failure to comply with the court's order, Father
asked the court to strike Mother's pleadings and enter a
default judgment granting sole custody to Father.
Mother objected, insisting she was willing but unable to pay.
Mother confirmed that she was able to "pay $50, . . .
until [she was] able to come up with the whole amount."
The court explained to Mother that "it just doesn't
work that way" because she had already been ordered to
pay one-half of the fee immediately.
Mother again objected, saying, "Your Honor, I don't
have money. I don't have money. I don't have money
right now. I will pay her immediately. I am trying to come up
with the funds." The court explained that taking a year
or two to pay in installments was unacceptable because the
case needed to move forward to trial. Mother objected again,
saying, "I just got done telling you that I don't
have all the funds right now." Mother insisted that she
had told her former attorney that she would pay the evaluator
"when she renders services," and that her former
attorney had misrepresented her position to the court. The
court asked again, "So you don't intend to pay your
half of the fee to [the evaluator]?" At that point,
Mother suggested that it might be easier for her to
communicate in Spanish and offered to respond to the court in
writing, but she reiterated, "I'm saying I will pay
her as soon as I come up with the full amount. I'm not
refusing to pay." Mother stated that she was trying to
"get money from [her] kids, or a loan for [her]
house" and would try to come up with the full amount
within four to six weeks.
The court asked Father's attorney how long the case had
been pending, but Mother continued speaking. Father's
counsel stated that "she always interrupts" and
"we've had problems with her complying with the
court orders," which counsel asserted had resulted in
delay. Mother continued to object, but the court stated,
"All right, [Father's attorney], I'll grant ...