State of Utah, in the interest of E.M., C.M., and M.M.

----ooOoo----

State of Utah, in the interest of E.M., C.M., and M.M.,
persons under eighteen years of age.
______________________________

J.M. and A.M.,
Appellants,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000918-CA

F I L E D
March 21, 2002 2002 UT App 80 -----

First District Juvenile, Logan Department
The Honorable Larry E. Jones

Attorneys:
David M. Perry, Logan, for Appellants
Mark L. Shurtleff and John Peterson, Salt Lake City, for Appellee
Martha Pierce and Dianne R. Balmain, Salt Lake City, Guardians Ad Litem

-----

Before Judges Bench, Orme, and Thorne.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

Appellants' Points III and V are best characterized as sufficiency of the evidence claims. The thrust of these arguments seems to be that despite the trial court's findings to the contrary, the children's many medical procedures were indeed necessary and there was insufficient evidence for the court to find that abuse had occurred. In challenging the court's findings, appellants fail to satisfy the heavy marshaling burden that those "challenging [a] trial court's findings of fact" must shoulder. Moon v. Moon, 1999 UT App 12,¶24, 973 P.2d 431, cert. denied, 982 P.2d 89 (Utah 1999). Appellants generally discussed some of the findings and briefly presented argument challenging the conclusions reached by the trial court. This is not sufficient. See id.; West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991). We therefore assume "'that the record supports the findings of the trial court.'" Wade v. Stangl, 869 P.2d 9, 12 (Utah Ct. App. 1994) (quoting Saunders v. Sharp, 806 P.2d 198, 199 (Utah 1991)).

Turning to appellants' next argument, the trial court did not preclude appellants' expert from testifying. Concerned about the potential consequences of failing to provide timely notice of their intent to rely on the testimony of an expert, appellants stipulated to submitting the testimony by proffer rather than by direct testimony.(1) Appellants are bound by their stipulation. See In re Marriage of Gonzales, 2000 UT App 28,¶54, 1 P.3d 1074.

Appellants also fail to demonstrate that the trial court abused its discretion in relying on the testimony of Dr. Britton. "A trial court, whether acting as the trier of fact or presiding at a jury trial, is granted considerable discretion in determining whether an expert is qualified to give an opinion on a particular matter." Wessel v. Erickson Landscaping Co., 711 P.2d 250, 253 (Utah 1985). That Dr. Britton's curriculum vitae does not indicate that she is an expert on Munchausen Syndrome by Proxy ("MSBP") does not automatically bar her from qualification as an expert in this case. We are confident that the trial court, mindful of Dr. Britton's credentials, took the extent of her expertise into account in evaluating her testimony.(2)

Nor was it necessary for Dr. Britton to have personally examined the children prior to providing the court with her testimony. "[O]nce the expert is qualified by the court, the witness may base his opinion on reports, writings or observations . . . which were made or compiled by others, so long as they are of a type reasonably relied upon by experts in that particular field." State v. Clayton, 646 P.2d 723, 726 (Utah 1982). See Utah R. Evid. 703.

Appellants' final argument is that the trial court erred in not granting their motion to present newly discovered evidence. Rule 59 of the Utah Rules of Civil Procedure provides that, in order to justify amended findings or a new trial, the newly discovered evidence must be of the kind that the party making the application could not, with reasonable diligence, have discovered and produced at trial. See Utah R. Civ. P. 59(a)(4). Further, the evidence "'must not be merely cumulative or incidental, but must be of sufficient substance that there is a reasonable likelihood that with it there would have been a different result.'" In re J.P., 921 P.2d 1012, 1017 (Utah Ct. App. 1996) (emphasis added) (quoting In re S.R., 735 P.2d 53, 58 (Utah 1987)), cert. denied, 931 P.2d 146 (Utah 1997). The proffered evidence concerning Propulsid is simply not of that caliber.

Affirmed.
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:

.

______________________________
Russell W. Bench, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. Appellants argue that the trial court's explanation of the potential consequences of failing to provide timely notice of an intent to rely on the testimony of an expert "forced" them to stipulate to providing a shortened version of the doctor's testimony via proffer. Our review of the record reveals no improper coercion.

2. Appellant's belated assertion that MSBP is without scientific basis is wholly without merit.