Huish v. Munro

2008 UT App 283, 191 P.3d 1242, 609 Utah Adv. Rep. 13, 2008 Utah App. LEXIS 277
CourtCourt of Appeals of Utah
DecidedJuly 25, 2008
Docket20050440-CA
StatusPublished
Cited by18 cases

This text of 2008 UT App 283 (Huish v. Munro) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Huish v. Munro, 2008 UT App 283, 191 P.3d 1242, 609 Utah Adv. Rep. 13, 2008 Utah App. LEXIS 277 (Utah Ct. App. 2008).

Opinion

OPINION

ORME, Judge:

¶ 1 Kathleen Lenay Huish appeals from the trial court’s modification decree granting sole legal custody of the parties’ minor child to Glen Frank Munro on Munro’s motion to modify the parties’ divorce decree to change what had been joint legal custody. On ap *1245 peal, Huish assigns fifteen errors, which for convenience we restate as four: (1) that her due process rights were violated; (2) that res judicata and issue preclusion bar the parties from relitigating custody; (3) that the trial court erred in allowing a witness to testily about the best interests of the child without first explicitly determining whether there existed a substantial change in circumstances warranting a potential change in custody; and (4) that the trial court’s findings of fact are unsupported by the evidence and its legal conclusions are erroneous. We affirm.

I. Due Process

¶2 Huish makes two due process arguments. First, she argues that the trial court incorrectly ruled that she had rested her case when she had not and that because of that ruling she was not permitted to question Dr. Monica Christy as a direct witness during her case-in-chief. This, she asserts, denied her due process. Second, Huish argues that the trial court erred in considering Dr. Valerie Hale’s testimony as a special master because Dr. Hale, while acting in that capacity, allegedly accepted money from, and engaged in ex parte communication with, Munro’s attorney and submitted documents to the court without providing proper notice to the parties. Huish asserts that given these facts, and because Dr. Hale’s testimony was adverse to Huish, she was denied due process. We address each argument in turn, noting that we review constitutional questions, including those regarding due process, for correctness. See Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.

A. Huish’s Case-in-Chief

¶ 3 “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (citation omitted). “In the context of parental rights, ‘[d]ue process requires that a parent be given a meaningful opportunity to be heard by submitting testimony herself and by witnesses.’ ” In re S.H., 2007 UT App 8, ¶ 21, 155 P.3d 109 (alteration in original) (citation omitted). Huish argues that the trial court incorrectly ruled that she had rested her case when she had not, and because of that ruling she was not permitted to question Dr. Christy as a direct witness during her case-in-chief, depriving her of her due process rights. While we agree that the trial court erred, we are not convinced the error amounts to a violation of Huish’s due process rights.

¶ 4 On the ninth day of trial, during Huish’s case-in-chief, the following exchange, with our emphasis, occurred between the trial court and the parties’ counsel:

MR. DRAKE [Huish’s attorney]: Your Honor, Ms. Bigelow [Munro’s attorney] and I had a conversation yesterday about the order and she has ... some rebuttal witnesses ... and ... we’ll accommodate her to allow her, with the court’s permission, to have these rebuttal witnesses come in at this point and then we’ll finish off with our case in chief.
THE COURT: What more do you have left on your case in chief?
MR DRAKE: Your Honor, we intend to call the respondent [Munro] and possibly Monica Christy as a direct witness and that would be it. And if we can take care of Dr. Christy with our rebuttal and just to save the Court time, I think that would be more [efficient.
THE COURT: I have no problem with that, but what will you be asking her in your ease [in] chief that you couldn’t cover on any cross or rebuttal?
MR. DRAKE: Well, your Honor I’m just looking at the scope of the rebuttal and me having to go to questions limited by that scope, if the Court would be willing I’d like to expand that scope just to do that. Then we can end it all at one time.
[[Image here]]
THE COURT: Well, my sense is as long as Dr. Christy’s here let’s get her on and *1246 off, and not have to take her back and forth. So with that I’m going to allow leeway on both sides as to completing her testimony, with the idea that you don’t abuse it and you don’t bring up new issues, but we get her out of the way.... As to Mr. Munro, is he going to be called in your rebuttal case?
MS. BIGELOW: Yes, your Honor.
THE COURT: Well then, why don’t we allow them to call him in their case in chief and you can have the same leeway as to rebuttal and your recross of their direct. And then you can cover whatever rebuttal you need to do after they’re done with their direct on him.
[[Image here]]
.... So let’s begin with your rebuttal witnesses.... What you are saying is when you’re finished with that you don’t necessarily want to bring Mr. Munro on as your rebuttal witness, you’ll allow them to bring on their case in chief to finish it out
[[Image here]]
MS. BIGELOW: Yes....

We take this exchange to mean that Munro was permitted, by agreement among the parties and the trial court, to present his rebuttal witnesses, including Dr. Christy, out of order and during Huish’s case-in-chief; that in cross-examining Dr. Christy on rebuttal, Huish would be permitted to exceed the scope of rebuttal in order to avoid having to call her as a direct witness yet again; that Huish would then call Munro as her direct witness to complete her case-in-chief, since Munro was undecided about whether to testify on rebuttal; and that Munro, if he so chose, would then testify on rebuttal.

¶ 5 On the tenth day of trial, during Huish’s cross-examination of Dr. Christy, another exchange occurred following an objection raised by Munro that Huish was exceeding the scope of rebuttal:

MR. DRAKE:_ When we were discussing this last Thursday, I said I’d like to combine, in the interest of judicial economy, rebuttal and having her as a direct witness. I believe the Court stated that that would be all right. If not, then I can do rebuttal with her and come back again and have her as direct.
THE COURT: No, I don’t want that to happen, but be mindful of the time concerns. Go ahead.

This second exchange supports our characterization of the first and clearly establishes that Huish had not rested her case. But the trial court, shortly after this second exchange and while Dr. Christy was still on the stand, interrupted Huish and asked, “Why wasn’t this all covered on cross when you first had a chance to talk with her ... ? This is neither rebuttal [n]or fair game for you to call her as a witness.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 UT App 283, 191 P.3d 1242, 609 Utah Adv. Rep. 13, 2008 Utah App. LEXIS 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huish-v-munro-utahctapp-2008.