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Chaparro v. Torero

Court of Appeals of Utah

September 20, 2018

Elda Chaparro, Appellant,
Enrique Torero, Appellee.

          Second District Court, Ogden Department The Honorable Ernest W. Jones No. 134901419

          Randall W. Richards, Attorney for Appellant

          Deborah L. Bulkeley, Attorney for Appellee.

          Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.


          HAGEN, JUDGE.

         ¶1 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.


         ¶2 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.

         ¶3 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.

         ¶4 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."

         ¶5 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.

         ¶6 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.

         ¶7 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 appropriate relief.

         ¶8 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.

         ¶9 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 and counterpetition.

         ¶10 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.

         ¶11 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.

         ¶12 The following month, the district court held a telephone conference with Father's attorney and Mother, appearing pro se.[1]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.

         ¶13 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.

         ¶14 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.

         ¶15 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 ...

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