McPherson v. Copp

556 P.3d 78

2024 UT App 107

Sean MCPHERSON, Appellee,

v.Lynn COPP, Appellant.

No. 20220404-CA

Court of Appeals of Utah.

Filed August 1, 2024

Third District Court, Silver Summit Department, The Honorable Richard E. Mrazik, No. 194500029

Laja K. Thompson, Park City, Attorney for Appellant

Brody N. Miles, Attorney for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 This appeal involves a dispute between Sean McPherson and Lynn Copp over the recognition of their purported unsolemnized marriage. The trial court concluded that Copp failed to present sufficient evidence at an evidentiary hearing to establish a valid marriage between her and McPherson. The court found the two had maintained only a partial, rather than a uniform and general, reputation as a married couple in their communities, which is a required element of an unsolemnized marriage. We affirm the court’s dismissal of Copp’s counterclaim.

BACKGROUND¹

¶2 McPherson and Copp met in Breckenridge, Colorado, in March 2010 and began living together in September of that same year. In January 2012, Copp gave birth to the parties’ son (Son). At the time of Son’s birth, McPherson and Copp "made a commitment to one another" that Son would take McPherson’s last name, that "McPherson would stay involved in [Son’s] life," and that "McPherson would financially support [Copp] and [Son]." In March 2012, McPherson, Copp, and Son moved to Denver, Colorado, for McPherson’s new job.

¶3 Two years later, the parties’ relationship deteriorated, and Copp told "McPherson [that] she was moving with [Son] to Chicago." In response, McPherson sought legal advice concerning custody of Son. Copp did not move to Chicago and instead followed McPherson in March 2015 to Utah, where McPherson had again relocated for work. McPherson, Copp, and Son lived together in a home they rented in Sandy, Utah. While there, Son began attending preschool at the Waldorf School, where Copp volunteered on the preschool board and met Son’s teacher (Teacher). It was during this time that McPherson and Copp also met a neighbor (Sandy Neighbor). Son later attended Wasatch Woodland School, where Copp met a fellow kindergarten parent (WWS Parent).

¶4 In July 2017, McPherson and Copp moved to Mexico with Son briefly before returning to the United States. Upon their return, the parties began renting an apartment together in Holladay, Utah, and McPherson continued to financially support Copp. Later, the parties moved to Park City, Utah, and rented a home together there. However, despite living in the same household, the parties did not share a bedroom and had not engaged in sexual relations since before the summer of 2017.

¶5 The parties formally separated in February 2019 when Copp sought a protective order against McPherson. After that filing, McPherson moved out of the Park City home and began living in Salt Lake City, Utah.

¶6 McPherson petitioned for custody of Son in 2019. Shortly thereafter, Copp filed a counterclaim to have the parties’ relationship recognized as an unsolemnized marriage and for divorce. Copp asserted that the effective date of the parties’ unsolemnized marriage was April 2012.

¶7 The trial court bifurcated the issue of the unsolemnized marriage from the other issues. The court ordered fact discovery to run from April 17, 2019, to November 11, 2019. Copp provided her initial disclosures on June 4, 2019, wherein she disclosed two witnesses—herself and McPherson. McPherson disclosed thirty-four witnesses, including family members, friends, and coworkers, in addition to himself.

¶8 On January 12, 2021, the trial court ordered a sixty-day extension for discovery related to the unsolemnized marriage issue in response to a stipulation filed by the parties. As part of the stipulation, the parties "agreed not to object to the use of previously disclosed witnesses." On March 16—the last day of the reopened discovery period—Copp provided a new list of thirty-two additional witnesses, but the pretrial disclosures did not list any contact information for most of the new witnesses. McPherson filed a motion seeking to exclude twenty-three of Copp’s new witnesses, arguing that identifying these witnesses on the last day of discovery was untimely. The court agreed that Copp’s witness disclosures were untimely and excluded twenty-three of the listed witnesses from testifying at the evidentiary hearing.

¶9 A three-day evidentiary hearing on Copp’s counterclaim seeking to establish an unsolemnized marriage was held in June 2021, during which various witnesses testified. Following the hearing, the trial court issued its findings of fact, conclusions of law, and order. Based on the evidence presented, the court found that "[s]everal witnesses testified credibly, and certain evidence corroborated, that the parties sometimes held themselves out as being married, and acquired at least a partial reputation as being married." Those witnesses included Copp’s brother, Copp’s mother, the parties’ Park City landlord, Sandy Neighbor, WWS Parent, and others. However, the court also found that "numerous other witnesses testified credibly that they understood that the parties were not married, and the greater weight of the evidence shows the parties had acquired a reputation among [McPherson’s] family, friends, and professional colleagues as not married." (Emphasis omitted.) The court found "no credible evidence" that McPherson "ever wore a wedding ring" or that Copp "ever used [McPherson’s] last name as her own."

¶10 Based on the foregoing factual findings, the trial court concluded Copp had ‘"failed to meet her burden of proving, by a preponderance of the evidence, that the parties ‘hold themselves out as and have acquired a uniform and general reputation as husband and wife.’ " (Quoting Utah Code § 30-1-4.5(1)(e).) The court continued that "the greater weight of the evidence shows the parties have acquired only a partial reputation as husband and wife, and have inconsistently held themselves out as husband and wife," and that "[t]his divided reputation precludes a finding that the parties ‘have acquired a uniform and general reputation as husband and wife.’ " As such, the court dismissed Copp’s counterclaim based upon her failure to carry her burden of proving the "uniform and general reputation" element of an unsolemnized marriage.²

ISSUES AND STANDARDS OF REVIEW

[1] ¶11 Copp now appeals the trial court’s order, presenting two main issues for our review. First, she asserts that the court erred in finding that the parties had acquired only a partial reputation as husband and wife. "We do not reverse a trial court’s findings of fact unless they are clearly erroneous." Kelley v. Kelley, 2000 UT App 236, ¶ 18, 9 P.3d 171 (quotation simplified).

[2, 3] ¶12 Second, Copp asserts that the trial court abused its discretion in excluding twenty-three of her witnesses from testifying at the evidentiary hearing. "A district court has broad discretion in selecting and imposing sanctions for discovery violations under rule 26 [of the Utah Rules of Civil Procedure]. Appellate courts may not interfere with such discretion unless there is either an erroneous conclusion of law or no evidentiary basis for the district court’s ruling." Wallace v. Niels Fugal Sons Co., 2022 UT App 111, ¶ 26, 518 P.3d 184 (quotation simplified), cert. denied, 525 P.3d 1267 (Utah 2023); see also Utah R. Civ. P. 26(d)(4) ("If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.").

ANALYSIS

I. Unsolemnized Marriage

[4] ¶13 A party seeking recognition of a marriage that is not solemnized must prove each of the five elements set forth in Utah Code section 30-1-4.5(1)(e) "by a preponderance of the evidence." See Hansen v. Hansen, 958 P.2d 931, 937 (Utah Ct. App. 1998); see also Volk v. Vecchi, 2020 UT App 77, ¶ 12, 467 P.3d 872 ("In proving the existence of a common law marriage, … each required [statutory] element must be established by sufficient evidence."). These elements include establishing the existence of "a contract between a man and a woman who … hold themselves out as and have acquired a uniform and general reputation as husband and wife." Utah Code § 30-1-4.5(1)(e).

[5] ¶14 Here, the trial court concluded that Copp had not carried her burden to establish an unsolemnized marriage because Copp failed to prove that she and McPherson "acquired a uniform and general reputation as husband and wife." In reaching this conclusion, the court found that the greater weight of the evidence showed the parties had acquired only a partial reputation as being married. Copp contends the court’s findings are clearly erroneous because of how the court "weigh[ed] the evidence." Specifically, Copp asserts the court gave "undue weight to the quantity of McPherson’s witnesses" rather than focusing on "the quality of" the witness testimony, and that the court improperly "discredit[ed]" her witnesses.

[6] ¶15 This court has indicated that "a partial or divided reputation of marriage is insufficient to establish that a couple has acquired a uniform and general reputation as husband and wife, as required by section 30-1-4.5(1)(e)." Volk, 2020 UT App 77, ¶ 15, 467 P.3d 872 (quotation simplified). "A partial or divided reputation of marriage may be shown when the parties’ closest friends do not consider the parties married and the parties are not consistent in holding themselves out as married to the rest of the world." Id. (quotation simplified). "Such circumstances negate the establishment of the statutory requirement that the couple acquire a uniform and general reputation as husband and wife." Rivet v. Hoppie, 2020 UT App 21, ¶ 11, 460 P.3d 1054 ...