Lomsdal v. Cox

----ooOoo----

Wendy Lomsdal,
Appellee,

v.

Keith Cox,
Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000370-CA

F I L E D
May 24, 2001 2001 UT App 165 -----

First District, Logan Department
The Honorable Clint S. Judkins

Attorneys:
Keith Cox, Logan, Appellant Pro Se
Dennis R. Mathews, Logan, for Appellee

-----

Before Judges Bench, Billings, and Davis.

BILLINGS, Judge:

Keith Cox (Father) first argues the trial court was barred under the doctrine of res judicata from relitigating the issue of custody and visitation because a Missouri court entered a default judgment in a paternity suit, awarding Father and Wendy Lomsdal (Mother) joint legal custody, and Mother primary physical custody, but giving Father substantial visitation.(1)

Although Father does not differentiate between the claim and issue preclusion branches of res judicata, it is clear that we are dealing with issue preclusion as the issue of custody was decided in the original paternity action and is at issue in this divorce. We note that because this is a custody determination, the doctrine of res judicata is "subservient to the best interests of the child," and because the Missouri judgment was determined by default, the res judicata effect of that judgment "is at a particularly low ebb." Elmer v. Elmer, 776 P.2d 599, 603 (Utah 1989).

Since the time of the Missouri paternity default judgment, the facts and legal circumstances have changed considerably--the parties have both moved to, married in, then subsequently divorced in Utah. The general rule is that when the facts or controlling law have changed since the first judgment, "a party is [relieved] from the application of res judicata." Collins v. Sandy City Bd. of Adjustment, 2000 UT App 371,¶16, 16 P.3d 1251. Because of the change in the facts and legal circumstances of the parties since the time of the first judgment, and in light of the policy considerations governing application of res judicata in custody determinations, we conclude the doctrine of res judicata does not bar litigation of the issue of custody.

Father next argues that the trial court erred in its custody determination. "Trial courts are given broad discretion in child custody matters." Linam v. King, 804 P.2d 1235, 1237 (Utah Ct. App. 1991). "We will not upset a custody determination that is . . . supported by [sufficient] findings of fact and conclusions of law." Id. (citation omitted). Father asserts that the findings of fact are insufficient to support the award of custody. To determine whether a trial court made sufficient factual findings to support an award of custody, we look to the trial court's written findings of fact as well as its oral findings as set forth in the trial record. See Hansen v. Hansen, 736 P.2d 1055, 1058 (Utah Ct. App. 1987); see also Utah R. Civ. P. 52(a). In the instant case, the trial court, in its oral findings, expressly adopted the "recommendations as set forth by Dr. Price in page 15 of his report to the Court," as its own findings of fact.

"An appellate court's 'review is . . . limited to the evidence contained in the record on appeal.'" State v. Pliego, 1999 UT 8,¶7, 974 P.2d 279 (citation omitted) (alteration in original). The record on appeal does not contain Dr. Price's report and although the report is attached as an addendum to Father's brief, the record may not be supplemented "by simply including the omitted material in the party's addendum." Id. (citing Utah R. App. P. 11(h)). Thus, we presume the court's findings are sufficient to support the award of custody to Mother. See Sampson v. Richins, 770 P.2d 998, 1002 (Utah Ct. App. 1989).

Moreover, Father did not marshal the evidence to show that the custody determination was not in the best interests of the child. "To challenge the trial court's findings, [Father] must 'marshal the evidence in support of the findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be against the clear weight of the evidence[,]' thus making them clearly erroneous." A.K. & R. Whipple Plumbing & Heating v. Aspen Constr., 1999 UT App 87,¶26, 977 P.2d 518 (citation omitted) (second alteration in original). Because Father failed to meet the burden of marshaling the evidence, we assume the record supports the trial court's findings. Therefore, we conclude the trial court did not abuse its discretion in making the custody determination.

Father finally argues the trial court abused its discretion in ordering him to pay $1,000 of Mother's attorney fees. The trial court awarded Mother attorney fees on the grounds that Father, in the presentation of his own case, "caused an inordinate amount of time to be spent getting this matter to trial and in trial," and that, "[t]his could have been done a lot quicker than that."

The trial court has "inherent power" to award attorney fees to "'compensate for delay, inconvenience and the expense resulting from [a party's] behavior.'" Griffith v. Griffith, 1999 UT 78,¶14, 985 P.2d 255 (citation omitted); see also Barnard v. Wasserman, 855 P.2d 243, 249 (Utah 1993) (stating trial courts "possess certain inherent power to impose monetary sanctions on attorneys who by their conduct thwart the court's scheduling and movement of cases through the court."). In light of the trial court's finding that Father spent an inordinate amount of time presenting his case, we affirm the award of attorney fees as a proper exercise of the trial court's inherent power.(2)
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
James Z. Davis, Judge

1. Under the Missouri judgment, Father was granted visitation as follows: eight weeks in the summer; alternating holidays; one week in October and March of each year; and each party would pay one half of the costs associated with transporting the child to and from the visits with Father.

2. Father's argument that allowing Mother's attorney and the Guardian ad Litem to interview witnesses outside his presence is without merit and we therefore will not address the same. SeeState v. Carter, 776 P.2d 886, 888 (Utah 1989).