459 P.3d 276 (Utah 2015)
INTRODUCTION
¶1 These interrelated cases arise from the marriage dissolution of Dr. Charles Dahl and Ms. Kim Dahl. On appeal of the divorce case, Ms. Dahl challenges the district court's substantive rulings on alimony, child custody, and distribution of the marital estate. She additionally challenges the district court's rulings on judicial bias, evidentiary issues, and attorney fees. Ms. Dahl also appeals the outcome of a separate, but related, lawsuit involving marital assets contained in the Dahl Family Irrevocable Trust (Trust). Although these cases came before this court separately, we consolidate them, sua sponte for the purposes of appeal and remand, based on our conclusion that the Trust should have been joined as a party to the divorce action.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Due to the complex factual and procedural history of these cases, we provide only a brief overview of the underlying facts here. We will discuss the relevant facts in more detail below as they relate to our resolution of the various issues.
¶3 Dr. Charles Dahl and Ms. Kim Dahl were married for nearly eighteen years. Dr. Dahl is a practicing cardiologist. Ms. Dahl earned a master's degree in education and worked as an interior designer and school counselor prior to her marriage to Dr. Dahl. During the couple's marriage, Ms. Dahl was the primary caregiver to the couple's two children, D.D. and C.D.,1 and did not work outside the home.
¶4 Dr. Dahl filed for divorce on October 24, 2006. Following years of pretrial proceedings, the divorce court conducted a bench trial over fourteen nonconsecutive days, beginning in September 2009. The divorce court issued its Findings of Fact and Conclusions of Law on April 5, 2010, and the Decree of Divorce was entered July 20, 2010.
¶5 The divorce proceedings were extremely contentious. The parties fiercely disputed custody of their children, Ms. Dahl's right to temporary and permanent alimony, and the proper distribution of the marital estate. The discovery process was rife with abuses on both sides, which delayed trial. The pretrial disclosure process was similarly fraught and ultimately resulted in the exclusion of most of Ms. Dahl's trial exhibits and expert witnesses. The district court aptly described the pretrial proceedings as a "train wreck."
¶6 On appeal of the divorce action, Ms. Dahl asserts several claims of error: (1) that the district court judge, Judge Taylor, was biased against her; (2) that the district court abused its discretion in various evidentiary rulings; (3) that the district court abused its discretion when it failed to award Ms. Dahl temporary and permanent alimony; (4) that the district court unfairly divided the marital assets in favor of Dr. Dahl; (5) that the district court erred in not considering joint custody of the couple's children; and (6) that the district court erred in not ordering Dr. Dahl to pay Ms. Dahl's attorney fees. We affirm in part, reverse in part, and remand for further proceedings.
¶7 Ms. Dahl brought a separate action against the Trust, Marlette Enterprises, L.L.C., Dr. Dahl's real estate investment company, and C. Robert Dahl, Dr. Dahl's brother who served as the Trust's investment trustee (collectively Trust Defendants). In essence, Ms. Dahl sought a share of the Trust assets, which she claimed were marital property. Specifically, she sought declaratory judgment as to the parties' rights and obligations under the Trust, arguing that the Trust was null and void, that the Trust was revocable as a matter of law, that Ms. Dahl was a settlor of the Trust, and that she was entitled to an accounting from the Trust. The parties filed cross-motions for summary judgment, and the district court granted the Trust Defendants' motion, dismissing Ms. Dahl's claims. She asserts that the district court erred when it declared that she had no enforceable interest in Trust assets. We agree and therefore reverse.
¶8 Ms. Dahl's appeals of both the divorce action and the trust action came before the court of appeals. The court of appeals certified both appeals to us. We have jurisdiction pursuant to section 78A-3-102(3)(b) of the Utah Code.
ANALYSIS
I. CONSOLIDATION OF THE DIVORCE AND TRUST ACTIONS
¶9 As an initial matter, we address Ms. Dahl's failure to join the Trust in the divorce action. Despite years of pretrial proceedings in the divorce action, counsel for Ms. Dahl failed to join the Trust as a defendant. Then, just weeks before the start of the divorce trial, Ms. Dahl's attorneys initiated the separate lawsuit against the Trust. The divorce court refused to consider the Trust assets in distributing the marital estate, ruling that the eve of trial was too late to join a new party and that it could not consider Trust assets that were the subject of other pending litigation. Given Ms. Dahl's failure to join the Trust as a defendant in the divorce action, we do not fault the divorce court for refusing to consider the Trust assets.
¶10 Courts may "make a legally binding adjudication only between the parties actually joined in the action." Hiltsley v. Ryder, 738 P.2d 1024, 1025 (Utah 1987); see also R.M.S. Corp. v. Baldwin, 576 P.2d 881, 883 (Utah 1978) (holding that no judgment could be entered against a corporation not joined as a party before the court). Because of Ms. Dahl's failure to add the Trust as a party, the district court was correct that it had no power to adjudicate the parties' rights in the Trust assets.
¶11 The Trust assets included marital property. Without the power to consider and distribute the Trust assets, the district court lacked the authority to fully and fairly distribute the marital estate. Accordingly, the Trust should have been joined as a party to the divorce action.2 Counsel's failure to join the Trust prevented the district court from considering the Trust and its assets and therefore prevented a complete distribution of the marital estate. But we are now in a position to consider the Trust and its assets because both the Trust and divorce cases are before us. And "appellate courts may raise the issue [of joinder] sua sponte." Hiltsley, 738 P.2d at 1025. Accordingly, we hereby consolidate the Trust and divorce cases for purposes of appeal.3 And we remand both cases to the district court that handled the divorce case and direct it to join the Trust as a party to the divorce action.
II. THE TRUST ACTION
¶12 On July 31, 2009, Ms. Dahl brought an action seeking a declaration of her rights in the Trust assets and requesting an accounting of the Trust's activities and a copy of the Trust agreement. Following discovery, both parties moved for summary judgment. The district court held a hearing on the parties' cross-motions on August 31, 2011. At the conclusion of the hearing, the court instructed counsel for both parties to prepare orders consistent with their respective positions. Ultimately, the district court granted summary judgment in favor of the Trust Defendants and signed the order prepared by their counsel.
¶13 In adopting the order, the district court held that the Trust was irrevocable and that Ms. Dahl had no enforceable interest in the Trust assets. Though the Trust agreement contained a choice-of-law provision, the order did not specify whether the court was construing the Trust according to Utah or Nevada law. But it appears to have construed the Trust according to both Utah and Nevada law.
¶14 On appeal, Ms. Dahl argues (1) that the district court erred in its choice-of-law analysis, (2) that the court erred when it held that the Trust was irrevocable and that Ms. Dahl had no enforceable interest in Trust assets, and (3) that the district court exceeded its authority when it opined that the statute of limitations had lapsed on several claims not actually before it.4
¶15 Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." UTAH R. CIV. P. 56(c). Accordingly, we review the district court's grant of summary judgment for correctness and take "the facts and [any] inferences to be drawn therefrom in the light most favorable to the nonmoving party." Peterson v. Coca-Cola USA, 2002 UT 42, ¶ 7, 48 P.3d 941.
¶16 Because Utah has a strong public policy interest in the equitable division of marital assets, we will not enforce the choice-of-law provision contained in the Trust. Instead, we construe the Trust according to Utah law. We hold that the Trust is revocable under Utah law and that Ms. Dahl has an interest in the Trust property as a settlor of the Trust. We further hold that the district court erred when it purported to adjudicate claims not properly before it. Before we address Ms. Dahl's specific claims of error, we first turn our attention to an inconsistency in the district court's order granting summary judgment in favor of the Trust Defendants.
A. The District Court's November 11, 2011 Order Is Internally Inconsistent
¶17 The district court adopted the order drafted by counsel for the Trust Defendants. That order was internally inconsistent. The order first addressed Ms. Dahl's request for declaratory judgment concerning the rights and duties of the parties vis-à-vis the Trust. After reviewing the law relating to declaratory judgment actions, the order stated that the court could "refuse to render or enter a declaratory judgment or decree where a judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy" between the parties. It then stated that because a declaratory judgment would not terminate the parties' dispute, it would decline "to undertake the seemingly meaningless task of declaring the rights and duties of the parties to [the] action."
¶18 Despite this language, which states that the district court was declining to order any declaratory relief, the order goes on to do just that. The order states that the Trust could not be rendered "null and void" on the basis of the facts presented by Ms. Dahl, that Ms. Dahl had no legally enforceable interest in the Trust assets, and that the Trust was irrevocable as a matter of law. Finally, the order states that Ms. Dahl did not have the right to a general accounting from the Trust. Because these rulings constitute a declaration as to the matters in dispute, they are inconsistent with the prior ruling that the court was declining to declare the rights of the parties in this matter.5
¶19 When confronted with an ambiguous order, we will construe it using the same rules that apply to all legal documents. Culbertson v. Bd. of Cnty. Comm'rs, 2001 UT 108, ¶ 15, 44 P.3d 642, overruled on other grounds by Madsen v. JPMorgan Chase Bank, N.A., 2012 UT 51, 296 P.3d 671. We first "look to the language of the order," and "[may] resort to the pleadings and findings." Id. Our task is to "interpret an ambiguity [in a manner that makes] the judgment more reasonable, effective, conclusive, and [that] brings the judgment into harmony with the facts and the law." Id. (alterations in original) (internal quotation marks omitted). And we will "construe any ambiguities in the order against the prevailing parties who drafted it." Id.
¶20 Though purporting to deny declaratory relief, the order goes into great detail in articulating the parties' respective rights and duties as to the Trust. Indeed, it carefully articulates Ms. Dahl's various claims and rules on each. And because the order was drafted by counsel for the Trust Defendants, we construe any ambiguity in favor of Ms. Dahl. Accordingly, we strike those paragraphs of the order declining to award declaratory relief as surplusage that is inconsistent with the order as a whole.
¶21 Having dealt with the inconsistency in the district court's order, we turn our attention to Ms. Dahl's substantive claims.
B. We Construe the Trust According to Utah Law
¶22 Ms. Dahl argues that the district court erred when it applied Nevada law and construed the Trust as irrevocable. She argues that construing the Trust as irrevocable under Nevada law would violate Utah public policy by creating "a serious inequity" in the distribution of the marital estate. In response, Dr. Dahl argues that the Trust is irrevocable under both Utah and Nevada law and, therefore, the Trust's choice-of-law provision is "not material in this case." Dr. Dahl concedes that Ms. Dahl has an enforceable interest in the Trust assets if we find the Trust to be revocable. While both parties agree that application of Nevada law would require us to hold the Trust irrevocable,6 they disagree as to the result under Utah law. Accordingly, our first task is to determine which state's law governs construction of the Trust.
¶23 Because Utah is the forum state, Utah choice-of-law rules apply. Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 14, 54 P.3d 1054. Under Utah choice-of-law rules, we will generally enforce a choice-of-law provision contained in a trust document, unless doing so would undermine a strong public policy of the State of Utah. See UTAH CODE § 75-7-107 & cmt. ("This section does not attempt to specify the strong public policies sufficient to invalidate a settlor's choice of governing law."); see also Jacobsen Constr. Co. v. Teton Builders, 2005 UT 4, ¶ 19, 106 P.3d 719 (refusing to allow parties to "employ choice of law provisions to force forum states to enforce contractual terms wholly repugnant to local public policy"). Thus, we will refuse to enforce a settlor's choice-of-law provision if doing so would undermine strong public policy goals of this state.
¶24 Section 5.4.6 of the Trust agreement provides:
Governing Law. The validity, construction and effect of the provisions of this Agreement in all respects shall be governed and regulated according to and by the laws of the State of Nevada. The administration of each Trust shall be governed by the laws of the state in which the Trust is being administered.
Issues concerning the meaning of trust terms, the legal effect of those terms, and the status of individuals vis-à-vis the Trust are all matters of trust construction. See BLACK'S LAW DICTIONARY 355, 592 (9th ed. 2009) (defining "construction" and "effect"). Conversely, questions related to the performance of the trustee's duties and the management of trust assets are issues of trust administration. See id. at 49 (defining "administration"); 90 C.J.S. Trusts § 225. The central dispute between the parties in this case concerns the revocability of the Trust. This is an issue of trust construction to which we would ordinarily apply Nevada law. But we cannot apply Nevada law without violating Utah public policy.
¶25 Utah has a long-established policy in favor of the equitable distribution of marital assets in divorce cases. See UTAH CODE § 30-3-5(1) (authorizing Utah courts to enter "equitable orders relating to the children, property, debts or obligations, and parties" in a divorce); see also Englert v. Englert, 576 P.2d 1274, 1276 (Utah 1978) ("The import of our decisions implementing [section 30-3-5] is that proceedings in regard to the family are equitable in a high degree; and that the court may take into consideration all of the pertinent circumstances. It is our opinion that the correct view under our law is that this encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived."). We have previously indicated that the purpose of section 30-3-5 of the Utah Code is to empower courts to "enforce, after divorce, the duty of support which exists between a husband and wife." Callister v. Callister, 1 Utah 2d 34, 261 P.2d 944, 948 (Utah 1953). Moreover, "[t]he overarching aim of a property division, and of the decree of which it and the alimony award are subsidiary parts, is to achieve a fair, just, and equitable result between the parties." Noble v. Noble, 761 P.2d 1369, 1373 (Utah 1988). Thus, by legislative enactment and our long-standing precedent, Utah has an interest in ensuring that marital assets are fairly and equitably distributed during divorce and that divorcing spouses both retain sufficient assets to avoid becoming a public charge.
¶26 To this end, Utah law presumes that property acquired during a marriage is marital property subject to equitable distribution. See Woodward v. Woodward, 656 P.2d 431, 432-33 (Utah 1982) ("The essential criterion is whether a right to the benefit or asset has accrued in whole or in part during the marriage. To the extent that the right has so accrued it is subject to equitable distribution."). Thus, to the extent that the Trust corpus contains marital property, Utah has a strong interest in ensuring that such property is equitably divided in the parties' divorce action.
¶27 Dr. Dahl admits that at least some of the Trust assets originated as marital property. For example, Ms. Dahl conveyed her interest in the couple's marital home to the Trust via a warranty deed. In addition, Ms. Dahl claims to have conveyed to the Trust her interest in Marlette Enterprises and other marital property with a value of at least $2 million.7 Because Utah has a strong policy of equitable distribution of marital assets, we decline to enforce the Trust's choice-of-law provision on the grounds that doing so would deny the district court the ability to achieve an equitable division of the marital estate. We therefore construe the Trust according to Utah law.
C. Because the Trust Is Revocable Under Utah Law, Ms. Dahl Has an Enforceable Interest in the Trust Property
¶28 Having determined that we will construe the Trust according to Utah law, we turn our attention to whether the Trust is revocable and, if so, what interest Ms. Dahl has in the Trust assets.
1. The Trust Is Revocable Because Dr. Dahl Reserved an Unrestricted Power to Amend
¶29 Ms. Dahl argues that the Trust is revocable under Utah law because Dr. Dahl, as settlor of the Trust, reserved in the Trust agreement an unrestricted power to amend the Trust.8 We employ familiar principles of contract interpretation when construing trust instruments. Makoff v. Makoff, 528 P.2d 797, 798 (Utah 1974). We begin our analysis with the language of the trust agreement to ascertain the intent of the settlor. Id. Because we presume that the settlor knew and intended the legal effect of the language used, we give the words used in the trust agreement their ordinary and usual meaning. See 76 AM. JUR. 2D Trusts § 33 (2005) ("[T]he words used in a trust instrument are to be taken in their ordinary and grammatical sense unless a clear intention to use them in another sense can be ascertained.").
¶30 Section 5.5 of the Trust agreement states, "Trust Irrevocable. The Trust hereby established is irrevocable. Settlor reserves any power whatsoever to alter or amend any of the terms or provisions hereof." (Emphasis added.) Dr. Dahl argues that the Trust is irrevocable because it is entitled "The Dahl Family Irrevocable Trust" and section 5.5 declares it to be irrevocable.9 Dr. Dahl further argues that section 5.5 "does not create any right for Dr. Dahl to unilaterally alter or amend the Trust. Rather, the language simply reserves the rights of every settlor of an irrevocable trust ... to amend, alter or terminate the irrevocable trust if there is consent from all beneficiaries." We are unpersuaded.
¶31 A "settlor has power to modify the trust if and to the extent that by the terms of the trust he reserved such a power." RESTATEMENT (SECOND) OF TRUSTS § 331(1) (1959). The second sentence of section 5.5 reserves for Dr. Dahl, as settlor, any power to amend any provision of the Trust. Though Dr. Dahl urges us to construe section 5.5 as reserving only those powers to amend that are consistent with the creation of an irrevocable trust, the plain language of section 5.5 contains no such limitation. By the terms of the Trust, Dr. Dahl can modify any and all Trust provisions, including the provisions that purport to make the Trust irrevocable. See MARY F. RADFORD ET AL., THE LAW OF TRUSTS AND TRUSTEES § 993 (3d ed. 2008) ("Although the holder of a power to modify may not directly revoke the trust, he or she may do so indirectly by first modifying the trust by the insertion of a power to revoke and then exercising that power." (footnote omitted)). Such a broadly drafted provision cannot fairly be read as restricting Dr. Dahl's power to amend to only those powers consistent with an irrevocable trust. Thus, by the Trust's plain language, Dr. Dahl has reserved an unrestricted power to amend.
¶32 In In re Estate of Flake, we held that a settlor's unrestricted power to amend a trust includes, by definition, the power to revoke the trust. 2003 UT 17, ¶ 13, 71 P.3d 589, superseded on other grounds, Patterson v. Patterson, 2011 UT 68, 266 P.3d 828 ("Ordinarily, if a power to modify is subject to no restrictions, then a reserved power to amend or modify includes the power to revoke."). Following our decision in Flake, the Legislature enacted the Utah Uniform Trust Code (UUTC), which governs the creation, administration, and adjudication of trusts in Utah. See UTAH CODE §§ 75-7-101 to -1201; see also Patterson v. Patterson, 2011 UT 68, ¶ 33, 266 P.3d 828 (discussing the adoption of the UUTC). Modeled on the Uniform Trust Code, Utah Code section 75-7-605 governs a settlor's power to revoke or amend a trust. Consistent with our ruling in Flake, the comments to section 75-7-605 make clear that an unrestricted power to amend a trust includes the power to revoke it. UTAH CODE § 75-7-605 cmt. ("An unrestricted power to amend may also include the power to revoke a trust."). And on this point, Utah law is consistent with the well-established rule from other jurisdictions.10 Because Dr. Dahl reserved an unrestricted power to amend any and all provisions of the Trust, we hold that the Trust is revocable under Utah law. Having so held, we now turn our attention to what rights, if any, Ms. Dahl has in the Trust assets.
2. Ms. Dahl Has the Right to Withdraw Her Contributions to the Trust
¶33 Dr. Dahl argues that Ms. Dahl has no enforceable interest in the Trust because, even if she is a settlor of the Trust, Utah law prohibits her from withdrawing her assets from an irrevocable trust. See UTAH CODE § 75-7-605(2). But we have held that the Trust is revocable under Utah law. Thus, the relevant inquiry centers on Ms. Dahl's rights in relation to a revocable trust.
¶34 Any interest retained by Ms. Dahl in the Trust must necessarily be based on her contribution of property to the Trust. This is so because Ms. Dahl is not a signatory to the Trust agreement. Nor is she named as a settlor or trustee. And Ms. Dahl's status as a beneficiary of the Trust is dependant on her status as Dr. Dahl's spouse. In section 1.2 of the Trust agreement, the beneficiaries are listed as "the Settlor during his lifetime," "the Settlor's spouse," "the Settlor's issue," and "any charitable or tax-exempt organization that may be added as a beneficiary." (Emphasis added.) Because Ms. Dahl is named as a beneficiary only in her capacity as Dr. Dahl's spouse, her beneficiary status terminated with the couple's divorce. As a result, we must determine the extent to which Ms. Dahl's contribution of marital property to the Trust creates an enforceable interest in the Trust property.
¶35 Though we have not previously addressed this specific issue, the governing statute is clear. Section 75-7-103(1)(k) of the Utah Code defines "settlor" as "a person ... who creates, or contributes property to, a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution...."
¶36 In this case, Ms. Dahl is not acknowledged as a settlor in the Trust agreement, even though Dr. Dahl admits that Ms. Dahl contributed property to the Trust. The Uniform Law Comments relating to the UUTC's definition of "settlor," on which the Utah statute is modeled, directly address such a situation.
Determining the identity of the "settlor" is usually not an issue. The same person will both sign the trust instrument and fund the trust. Ascertaining the identity of the settlor becomes more difficult when more than one person signs the trust instrument or funds the trust. The fact that a person is designated as the "settlor" by the terms of the trust is not necessarily determinative .... Should more than one person contribute to a trust, all of the contributors will ordinarily be treated as settlors in proportion to their respective contributions, regardless of which one signed the trust instrument.
UTAH CODE § 75-7-103 cmt. (emphasis added).
¶37 A trust is created by the transfer of property by the owner to another person acting as trustee. See UTAH CODE § 75-7-401(1)(a); RESTATEMENT (SECOND) OF TRUSTS § 17(b) ("A trust may be created by ... a transfer inter vivos by the owner of property to another person as trustee...."). Regardless of whether Ms. Dahl is named as a settlor in the Trust agreement, she indisputably contributed property to the Trust. And there are no facts to support an inference that Ms. Dahl knowingly or intentionally forfeited her status as a settlor. Indeed, Ms. Dahl maintains that she was never given a copy of the Trust agreement and was unaware of its terms, including the fact that she was not named a settlor and that her status as a Trust beneficiary was dependent upon her status as Dr. Dahl's spouse. Dr. Dahl admits that Ms. Dahl "had nothing to do with the preparation of the Trust agreement ... and did not sign the Trust or any related documents." Under these facts, we cannot conclude that Ms. Dahl relinquished her legal status as a settlor. Accordingly, we hold that Ms. Dahl remains a settlor of the Trust, regardless of the fact that she is not so named in the Trust agreement.
¶38 Because Ms. Dahl is a settlor of the Trust, she may revoke that portion of the Trust funded with either her separate or marital property. Section 75-7-605(2) of the Utah Code states:
If a revocable trust is created or funded by more than one settlor:
(a) to the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses; and
(b) to the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution.11
By its plain language, section 75-7-605 allows Ms. Dahl, as a settlor of the Trust, to revoke the Trust as it relates to her contributed property—either marital or separate. See also RESTATEMENT (THIRD) OF TRUSTS § 63 cmt. k (2003) ("If a revocable trust has more than one settlor, ... each settlor ... may revoke or amend the trust with regard to that portion of the trust property attributable to the settlor's contribution."). On remand, the district court should consider the property contained within the Trust and determine whether it is fairly characterized as community, marital, or separate.12 It should then allow Ms. Dahl to revoke the Trust with regard to the portion of the Trust property attributable to either her separate property or any marital property.
¶39 Such a result accords with fundamental principles governing marital property under Utah law. Were we to decide that Ms. Dahl had no enforceable interest in the Trust, despite having contributed marital property to it, the result would be to allow a spouse to shield marital property from equitable division in the event of divorce. And that is exactly what Dr. Dahl attempted to do in this case. He crafted a trust agreement purporting to eliminate any interest Ms. Dahl had in the Trust property upon the couple's divorce. But Utah law does not allow spouses to place marital assets in revocable trusts and then shield those assets from equitable property division in the event of a divorce.13
D. The District Court Erred When It Purported to Rule on Issues not Before It
¶40 In its November 11, 2011 order, the district court granted summary judgment in favor of the Trust Defendants on Ms. Dahl's request for a determination that the Trust was "null and void." The court recognized, correctly, that "null and void" is not a valid cause of action. It went on to note, "There are no material factual allegations in the Amended Complaint that accuse the Defendants of fraud, mistake, duress, undue influence, illegality or otherwise contend that the trust is violative of public policy or contrary to law or statute." Despite the acknowledgment that such claims were not before it, the order states in a footnote:
However, even if the Plaintiff were to make such a claim, the statute of limitations has passed on all causes of action related to those theories. U.C.A. 78B-2-305 (2010 as Amended) limits actions based on the grounds of fraud or mistake to three years. 78B-2-307 (2010 as Amended) limits actions based upon a contract, obligation, or liability not founded upon an instrument in writing as well as other actions not detailed in the statute to four years. 78B-2-309 (2010 as Amended) limits actions based upon any contract, obligation, or liability founded upon an instrument in writing, to six years.
¶41 Ms. Dahl argues that it was improper for the district court to render an advisory opinion on claims not before it. We agree. As the order concedes, Ms. Dahl did not bring claims of fraud, mistake, duress, or undue influence as grounds for finding the Trust voidable. As such, any possible defenses to such claims cannot have been fully and fairly litigated before the district court. Thus, the district court's pronouncement with respect to the validity of such potential claims can have no preclusive effect. See Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 37, 16 P.3d 1214 (requiring that an "`issue must have been competently, fully, and fairly litigated'" to have preclusive effect).
¶42 In summary, because the district court's November 11, 2011 order was internally inconsistent, we strike those paragraphs of the order indicating that it declined to enter a declaratory judgment as inconsistent with the holding of the court. As to Ms. Dahl's substantive claims, we construe the Trust agreement according to Utah law based on Utah's long-standing public policy interest in the equitable division of marital assets upon divorce. We conclude that Dr. Dahl reserved an unrestricted power to amend the Trust in the Trust agreement. Under Utah law, this unrestricted power to amend gave Dr. Dahl the power to revoke the Trust, thereby rendering the Trust revocable. Because Ms. Dahl contributed marital property to the Trust, she retains the status of settlor and may revoke the Trust as to her contribution of both her separate property and any marital assets. We therefore remand the trust case, which we have consolidated with the divorce case, to the divorce court for purposes of equitably distributing those Trust assets that are marital property. Finally, we vacate that portion of the court's November 11, 2011 order purporting to opine on claims not before it.
III. THE DIVORCE CASE
¶43 We now turn to Ms. Dahl's appeal in the divorce case. Ms. Dahl raises multiple claims of error and requests that we reverse and remand the case for an entirely new trial. First, Ms. Dahl contends that she is entitled to a new trial because the district judge was biased against her. Second, Ms. Dahl asserts that the district court abused its discretion in several of its pretrial evidentiary rulings by (1) failing to compel discovery, (2) excluding many of Ms. Dahl's proposed trial exhibits, and (3) limiting the testimony of Ms. Dahl's expert witnesses. Third, Ms. Dahl argues that the district court abused its discretion when it refused to award Ms. Dahl temporary or permanent alimony. Fourth, Ms. Dahl argues that the district court abused its discretion when it failed to divide the couple's marital assets evenly and equitably. Fifth, Ms. Dahl asserts that the district court erred when it refused to allow Ms. Dahl to file an amended pleading in order to seek joint custody of the couple's children. Finally, Ms. Dahl argues that the district court abused its discretion when it denied her motion for attorney fees. For the reasons discussed below, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
A. Judge Taylor Was not Subject to Disqualification
¶44 On at least three occasions during the proceedings below, Ms. Dahl asserted that the district judge presiding over the divorce case, Judge Taylor, was biased against her and should be disqualified. First, on November 26, 2007, Ms. Dahl filed a motion to disqualify Judge Taylor, arguing that his comments and actions during the course of the divorce proceedings created the "appearance of impropriety and partiality." Specifically, Ms. Dahl alleged (1) that Judge Taylor had denied her equal access to the court by preferentially granting Dr. Dahl's motions while denying her motions and (2) that Judge Taylor had indicated bias against Ms. Dahl and her counsel when he made comments expressing annoyance with the lack of cooperation between the parties. As required by rule 63 of the Utah Rules of Civil Procedure, Judge Taylor certified Ms. Dahl's motion to the presiding judge of the Fourth District, who denied the motion.
¶45 Second, on October 21, 2009, Judge Taylor disclosed to the parties that his wife was scheduled to undergo a surgical procedure that would be performed by a cardiologist who was a member of the same medical group that employed Dr. Dahl. Ms. Dahl filed a notice indicating that she would not waive this potential conflict of interest. Even though Ms. Dahl had previously filed a rule 63 motion to disqualify, Judge Taylor submitted the question of the potential conflict to the presiding judge for review. See UTAH R. CIV. P. 63(b)(1)(C) ("No party may file more than one motion to disqualify in an action."). After considering affidavits submitted by the parties and conducting a telephone conference on the matter, the presiding judge determined that Judge Taylor need not be disqualified.
¶46 Finally, after the divorce trial concluded, Ms. Dahl argued that she should be granted a new trial because Judge Taylor was biased. Specifically, she alleged that she and Judge Taylor had interacted twenty years previously when she was a witness in a case in which Judge Taylor was serving as a prosecutor. She further alleged that Judge Taylor had inappropriately questioned her commitment to the LDS faith. With respect to the prior interaction, Ms. Dahl alleged that then-prosecutor Taylor became upset when Ms. Dahl suggested that the state prosecute LDS Church officials for failing to report a church member who had engaged in child molestation. Ms. Dahl maintains that Judge Taylor harbored ill will toward her on the basis of this previous interaction, which in turn caused him to question her commitment to the LDS faith during the divorce trial. Judge Taylor denied Ms. Dahl's motion for a new trial, indicating that he had no independent recollection of Ms. Dahl's involvement in the case decades prior.
¶47 On appeal, Ms. Dahl continues to assert that Judge Taylor was biased against her and therefore should have been disqualified (1) because he made negative comments about her and issued many rulings adverse to her, (2) because Judge Taylor's wife was scheduled to undergo surgery with a member of Dr. Dahl's medical group, and (3) because Judge Taylor was biased against her based on their interactions in the prior case. The question of disqualification due to judicial bias is a question of law that we review for correctness, giving no deference to the decision below. State v. Alonzo, 973 P.2d 975, 979 (Utah 1998). We find no basis for concluding that Judge Taylor should have been disqualified.
1. Adverse Rulings and Indications of Frustration Are Insufficient to Demonstrate Judicial Bias
¶48 Ms. Dahl asserts that an objective analysis of Judge Taylor's comments and rulings would lead a reasonable person to question his impartiality and therefore Judge Taylor should have been disqualified. In support of her assertion, Ms. Dahl points to several adverse rulings Judge Taylor made against her and to Judge Taylor's statement that "Ms. Dahl and her counsel annoyed him." We are not persuaded that these instances suggest judicial bias and hold that Judge Taylor's adverse rulings and one-time statement of frustration are insufficient indications of partiality to require disqualification.
¶49 A judge should be disqualified when circumstances arise in which the judge's "impartiality might reasonably be questioned." State v. Gardner, 789 P.2d 273, 278 (Utah 1989). Judges are presumed to be qualified and a party alleging bias on the part of the judge has the burden of demonstrating that the judge is not qualified. In re Affidavit of Bias, 947 P.2d 1152, 1153 (Utah 1997) (Mem. of Zimmerman, C.J.); see also 46 AM. JUR. 2D Judges § 129 (2008) ("The law presumes that a judge is unbiased and unprejudiced."). Moreover, parties claiming bias must demonstrate that the alleged bias stems from an extrajudicial source. State v. Munguia, 2011 UT 5, ¶ 17, 253 P.3d 1082 ("In other words, the bias or prejudice must usually stem from an extrajudicial source, not from occurrences in the proceedings before the judge." (emphasis omitted) (internal quotation marks omitted)); see also 46 AM. JUR. 2D Judges § 131 (2008) ("[T]he alleged bias and prejudice of a judge must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his or her participation in the case....").
¶50 In State v. Munguia, we were asked to determine whether a judge should have disqualified himself because of negative comments he made to the defendant in a criminal case. 2011 UT 5, ¶¶ 15-20, 253 P.3d 1082. In that case, the judge challenged the defendant about whether he understood who was at fault or whether the defendant still thought his actions were a good experience for the victims. Id. Though we acknowledged that "we expect our judges to be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others" with whom they interact in an official capacity, we nonetheless held that a judge's show of anger or frustration with a defendant, based on that defendant's behavior during the proceedings, was not grounds for disqualification. Id. ¶ 20 (internal quotation marks omitted).
¶51 In this case, Ms. Dahl claims that Judge Taylor was biased against her because he stated, "I am candidly annoyed that I'm getting so many requests for review and objections.... It is counter-productive to getting this case resolved." On its face, this statement of frustration arose from the proceedings before Judge Taylor, not from some extrajudicial source. Furthermore, Judge Taylor directed his statement to all counsel at trial. He did not single out any particular litigant or counsel. On these facts, we find nothing suggesting judicial bias.
¶52 Ms. Dahl also contends that a reasonable person would question Judge Taylor's impartiality because of the number of rulings he made against her. This contention is wholly without merit. We have repeatedly held that adverse rulings alone are insufficient to establish the existence of judicial bias. In re Affidavit of Bias, 947 P.2d at 1154 ("[N]o deduction of bias and prejudice may be made from adverse rulings by a judge." (internal quotation marks omitted)); In re Inquiry Concerning a Judge, 2003 UT 35, ¶ 7, 81 P.3d 758 (per curiam) ("There is neither a factual nor a legal basis ... for concluding that a judge who rules against a party on a particular legal issue is biased against that party."). To hold otherwise would expose judges to accusations of bias in every case because every case necessarily requires rulings adverse to one party or the other. We therefore hold that Judge Taylor was not subject to disqualification because there is no evidence in the record of extrajudicial bias.
2. The Scheduled Surgery of Judge Taylor's Wife Is not a Sufficient Basis to Establish Judicial Bias
¶53 We next turn to Ms. Dahl's allegation that Judge Taylor should have been disqualified because his wife was scheduled to undergo cardiac surgery performed by another cardiologist in Dr. Dahl's medical practice group. During trial, Judge Taylor disclosed the upcoming surgery to the parties and requested that both parties consider waiving any potential conflict. Dr. Dahl agreed, but Ms. Dahl refused.
¶54 Ms. Dahl argues that she should have been allowed to file another formal motion to disqualify Judge Taylor but she was barred from doing so because she had previously filed such a motion. Rule 63 of the Utah Rules of Civil Procedure allows parties to move for disqualification of a judge, but it limits parties to one motion to disqualify in any action.14 UTAH R. CIV. P. 63(b)(1)(C). This limitation, however, did not adversely affect Ms. Dahl because Judge Taylor nevertheless submitted the matter to the presiding judge for consideration, and the presiding judge determined that disqualification was not required. Ms. Dahl argues that this was error because there was a possibility that Dr. Dahl could have treated Judge Taylor's wife had he covered rotations for the other doctors in his practice. We find no error.
¶55 As we have discussed, a judge may be properly disqualified if a party demonstrates the existence of bias or prejudice stemming from an extrajudicial source, such as a social or professional relationship. Munguia, 2011 UT 5, ¶ 17, 253 P.3d 1082. Ms. Dahl has identified a potential professional relationship. But a potential relationship is not enough. And to show an actual professional relationship, Ms. Dahl would have needed to establish that Dr. Dahl covered rotations for other doctors in the group and that those rotations could include treatment of Judge Taylor's wife.
¶56 Ms. Dahl did not meet her burden. Dr. Dahl submitted an affidavit in the district court testifying to the following: (1) Dr. Dahl does not know Judge Taylor's wife and has never seen her chart; (2) Judge Taylor's wife was not a patient of Dr. Dahl; (3) the doctors at Utah Central Clinic had their own patients and the patients of a particular doctor are not clients of the clinic; (4) the doctor performing the surgery on Judge Taylor's wife, Dr. Hwang, belonged to a separate group within the clinic and therefore Dr. Dahl had no financial ties with the surgery; and (5) Dr. Dahl is not on the Board of Directors of the clinic and has no say in the practices of other doctors in the clinic. In short, there was no possibility that Dr. Dahl could be involved in the treatment of Judge Taylor's wife or that he could financially benefit from that treatment. Because the only connection established by the evidence was that Dr. Dahl worked in the same building as another surgeon who would perform the surgery on Judge Taylor's wife, Judge Taylor was not subject to disqualification.
3. Judge Taylor's Interaction with Ms. Dahl Twenty-Three Years Previously Did not Require Disqualification
¶57 Ms. Dahl's final alleged basis for judicial bias was an interaction she had with Judge Taylor twenty-three years previously in which he had allegedly criticized her religious devotion. According to Ms. Dahl, Judge Taylor, who was then a prosecutor, was involved in the prosecution of a man accused of sexually abusing children. Ms. Dahl was a witness for the prosecution at the sentencing hearing. The defendant had confessed to his church leaders, but the leaders had failed to report the abuse to legal authorities. Ms. Dahl alleges that when she requested that then-prosecutor Taylor prosecute the church leaders for failure to report, he compared her to a "son of perdition." Ms. Dahl asserts that Judge Taylor continued to harbor ill will toward her and improperly compared her and Dr. Dahl's religious devotion.
¶58 Ms. Dahl's claim is simply not supported by the evidence. In his order denying Ms. Dahl's motion for a new trial, Judge Taylor found:
- The Court finds that with regard to [Ms. Dahl's] claims regarding the [prior] case, that the Court has no independent recollection of the case because as a prosecutor, the case was prosecuted 23 years ago.
- The Court finds that it has no independent recollection of any involvement with Mrs. Dahl and in fact Mrs. Dahl apparently had a different name at the time.
- The Court finds that the [prior] case was one that involved child abuse and that [defendant] plead guilty. The Court recalls that the case was appealed and that the result was achieved and affirmed. [Defendant] served a mandatory prison term.
- The Court finds that it is not aware of what happened to [defendant] since the time frame set forth 23 years ago, except that [defendant] was sentenced to prison.
- The Court finds that it does not even create an appearance of impropriety. The... case from 23 years ago has absolutely no involvement in this case and denies the Motion for a New Trial based upon that claim.
¶59 The fact that the events alleged by Ms. Dahl happened over twenty years ago, that Ms. Dahl went by a different name at the time, and that Judge Taylor had no independent recollection of the events described by Ms. Dahl is ample support for Judge Taylor's denial of the motion for disqualification.
¶60 Similarly, the record does not support Ms. Dahl's claim that Judge Taylor improperly compared her religious devotion to that of Dr. Dahl or that he criticized her for failure to adhere to the principles of the LDS faith. To support her claim, Ms. Dahl selectively cites the district court's Findings of Fact and Conclusions of Law. But the district court's findings and conclusions as a whole undermine her position. The court found:
Although [Ms. Dahl] professed, during testimony, a commitment to the LDS religion, there was undisputed testimony that she has expressed frustration with the church to [her daughter, C.D.], and has acquiesced in [C.D.'s] decision to cease church activity. [Dr. Dahl] continues to attend with [D.D]. [D.D] was recently baptized. It is not the place or intent of this Court to judge or compare the level of activity in a particular religion, except to the extent that disagreement on this point may impact the family. The evidence does not demonstrate any disagreement or conduct that makes a meaningful difference in the family.
(Emphasis added.) Despite the fact that the district court expressly declined to compare the religious activity of either party, Ms. Dahl still maintains that the court improperly compared her religious devotion to that of Dr. Dahl. But that suggestion is simply not supported by the facts. The court's observation of the parties' religious practices and its conclusion that those practices had no bearing on its custody determination were not improper.15 Ms. Dahl has therefore failed to demonstrate that disqualification was warranted.
¶61 In summary, Judge Taylor was not subject to disqualification in this case because Ms. Dahl has failed to demonstrate the existence of bias or prejudice stemming from an extrajudicial source.
B. The District Court Did not Abuse Its Discretion in Its Pretrial Evidentiary Rulings
¶62 Ms. Dahl next argues that the district court abused its discretion by (1) denying Ms. Dahl's motions to compel discovery, (2) excluding many of Ms. Dahl's proposed trial exhibits, and (3) limiting the testimony of two of Ms. Dahl's expert witnesses. We find no abuse of discretion. Rather, the rulings were appropriate because Ms. Dahl's counsel failed to comply with basic rules of procedure.
1. The District Court Did not Abuse Its Discretion in Denying Ms. Dahl's Motions to Compel Discovery
¶63 Discovery in this case was highly acrimonious. The district court aptly described the discovery process as "a train wreck" in which it was forced to intervene on numerous occasions. As a general rule, we grant district courts a great deal of deference in matters of discovery and review discovery orders for abuse of discretion. Green v. Louder, 2001 UT 62, ¶ 37, 29 P.3d 638. Accordingly, we "will not find abuse of discretion absent an erroneous conclusion of law or where there is no evidentiary basis for the trial court's ruling." Id. (internal quotation marks omitted).
¶64 On appeal, Ms. Dahl argues that the district court abused its discretion in two ways. First, Ms. Dahl alleges that Dr. Dahl's responses to her requests for written discovery were deficient and that the district court should have granted her August 8, 2007 motion to compel further discovery. Second, Ms. Dahl argues that the district court should have compelled Dr. Dahl to supplement his discovery responses prior to trial so that she would not be forced to litigate her case with out-of-date information. We address each of Ms. Dahl's claims in turn.
a. Ms. Dahl Has not Adequately Briefed Her Argument that the District Court Should Have Granted Her Motion to Compel
¶65 The scheduling order adopted by the district court was drafted by Ms. Dahl's counsel. It set a deadline for fact discovery of September 1, 2007 and limited the parties to a total of twenty-five interrogatories, including subparts; four depositions for custody fact witnesses; and six depositions for financial fact witnesses. Ms. Dahl served her first and only set of interrogatories and requests for production of documents on June 1, 2007, just three months prior to the discovery deadline. According to Ms. Dahl, she never received a response from Dr. Dahl, prompting her to file her August 8, 2007 Motion to Compel Discovery Responses.
¶66 The commissioner considered Ms. Dahl's motion at a hearing on October 23, 2007. At that hearing, the commissioner ordered the parties to make their files available for opposing counsel to copy. On appeal, neither party's brief provides argument or citations to the record relating to this hearing. Instead, both parties' briefs refer to a July 17, 2007 hearing in which Ms. Dahl alleged that Dr. Dahl's discovery responses were deficient. But a review of the record reveals that the July 17, 2007 hearing actually involved two different motions to compel that had been filed against Marlette Enterprises and Dr. Charles M. Dahl, M.D. PC, Dr. Dahl's professional corporation. Indeed, there is no suggestion in the July 17 hearing that Ms. Dahl was complaining about the adequacy of the discovery responses filed by Dr. Dahl in his personal capacity. Ms. Dahl's challenge on appeal concerns only the August 8, 2007 motion to compel, which was filed against Dr. Dahl in his personal capacity. In short, the parties' briefing refers to a hearing on the wrong motions to compel and fails to direct the court to the portions of the record that address the challenged motion.
¶67 We have repeatedly stated that "[a]ppellate courts are not a depository in which [a party] may dump the burden of argument and research." ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2013 UT 24, ¶ 16, 309 P.3d 201 (alterations in original) (internal quotation marks omitted); see also Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903. The record in this case spans over twelve thousand pages. Ms. Dahl, as the appellant, bears the burden of directing our attention to those portions of the record that support her claim that the district court abused its discretion when it denied her motion to compel discovery. See UTAH R. APP. P. 24(a)(9) (requiring citations to "parts of the record relied on"); ASC Utah, 2013 UT 24, ¶ 16, 309 P.3d 201. Even if Dr. Dahl's discovery responses were unsatisfactory, we cannot conclude that the district court abused its discretion based on Ms. Dahl's briefing, and we decline to undertake the gargantuan task of sifting through the record in this case to make Ms. Dahl's argument for her.
b. The District Court Did not Abuse Its Discretion When It Denied Ms. Dahl's Motion to Compel Supplementation of Discovery
¶68 Ms. Dahl's second claim of error is that the district court abused its discretion when it denied her motion to compel Dr. Dahl to supplement his discovery responses prior to trial. On July 31, 2009, Ms. Dahl filed a Motion to Compel Supplementation of Discovery Requests. In her supporting memorandum, Ms. Dahl argued that Dr. Dahl's responses to her June 1, 2007 discovery requests were incomplete. Ms. Dahl also argued that Dr. Dahl had failed to supplement his discovery responses since December 19, 2007, when he first responded to her initial discovery requests.
¶69 Relying on rule 26(e) of the Utah Rules of Civil Procedure, Ms. Dahl argued in the trial court that Dr. Dahl had an ongoing duty to supplement his discovery requests. Rule 26(e)16 requires parties to supplement any disclosures or responses if two conditions are met. First, a party must supplement if the party learns that the information disclosed in its initial disclosures or in response to prior interrogatories, requests for production, or requests for admission "is in some material respect incomplete or incorrect." UTAH R. CIV. P. 26(e)(1)-(2) (2009). Second, this duty to supplement arises only if the corrective information has not already been made known to the other parties. Id. The district court denied Ms. Dahl's motion to compel supplementation because it was filed "too late" and because it was "not specifically focused enough to be characterized as supplementation." We agree.
¶70 As the district court noted in its September 15, 2009 hearing on the matter, Ms. Dahl did not notify Dr. Dahl that she considered his discovery requests to be deficient until July 21, 2009. The court specifically noted that Ms. Dahl's counsel had received Dr. Dahl's discovery responses in December 2007, but waited until July 2009-less than two months before the September 2009 trial date-to request supplementation or to challenge the sufficiency of the responses. And counsel offered no explanation for the long delay. We cannot conclude that the district court abused its discretion when it found that Ms. Dahl's motion was "too little too late."
¶71 Moreover, rule 26 does not require a wholesale update to every discovery response. Parties must supplement only if they discover their initial responses were incomplete or incorrect in some important way and that the corrective information was not already known to the other party. Dr. Dahl claims that all documentation was produced as required, either through his initial discovery responses or through responses to various subpoenas. And Ms. Dahl has not identified any specific documents introduced at trial demonstrating that Dr. Dahl's initial responses were incomplete or that counsel did not have the appropriate corrective information. Instead, she makes only generalized allegations that the information was "out of date" by the time of trial. On these facts and this briefing, we cannot conclude that the district court abused its discretion. Accordingly, we affirm.
2. The District Court Did not Abuse Its Discretion When It Limited the Number of Exhibits Ms. Dahl Was Allowed to Introduce at Trial
¶72 At a June 17, 2009 pretrial conference, the district court ordered the parties to exchange "an actual schedule of the people [they planned] to call and the exhibits [they planned] to use" no later than two weeks before the first day of trial. The court explained that the parties were to "carefully contemplate who they [were] actually going to call" and cautioned the parties against simply listing multitudes of potential witnesses. The court also repeatedly emphasized that the parties were to exchange the "actual exhibits" they planned to use at trial.
¶73 The exhibit list submitted by Ms. Dahl's counsel failed to comply with the court's order. Nor did it comport with any reasonable standards of pretrial disclosure. The exhibit list encompassed the entire universe of potential exhibits and was accompanied by a CD containing digital copies of over 8,000 documents. For example, the first exhibit listed was "[a]ny and all documents exchanged by the parties as potential exhibits in this matter on August 31, 2009, to the extent that they are admissible." Other listed exhibits included "[a]ny and all documents maintained in the Court's file"; "[a]ll affidavits filed in this matter"; "[a]ll email communications and other written communications between the parties"; "[a]ny and all admissible information, received pursuant to Subpoena Duces Tecum or other discovery method in the above-entitled matter"; and "[a]ny rebuttal exhibits." The list was so broad and overinclusive as to be meaningless. It failed to identify any particular exhibit by an identifying number or a particularized description and made no effort to link the general categories of documents to the electronic documents contained on the CD. In short, the exhibit list failed to identify any single document with enough particularity to allow the court or opposing counsel to identify it as one Ms. Dahl planned to introduce at trial.
¶74 At the final pretrial motion hearing on September 15, 2009, the court considered Dr. Dahl's objections to Ms. Dahl's exhibit list. The court noted the problems with the exhibit list, stating:
I thought my direction to you was clear. It's the same direction I give to every litigant who prepares for trial. I tell them to prepare a list of the actual exhibits, one by one that they intend to introduce and you've given me a list that says all the documents maintained, all the affidavits, all the records relied upon, all the marital communications. That's completely unworkable. I'm not going to allow you to simply dump all your discovery on my desk and tell me to sort it out.
¶75 The court thereafter struck the exhibit list and ordered counsel to resubmit a list that would identify particular documents that he would use with particular witnesses. In response, Ms. Dahl's counsel filed an amended exhibit list on September 22, 2009, the first day of trial.17 The amended list, though improved, continued to include designations such as "[a]ny and all documents exchanged by the parties as potential exhibits in this matter on August 31, 2009, to the extent they are admissible." The court again expressed its displeasure at counsel's failure to specifically identify which exhibits he planned to use at trial, citing the need to give all parties fair notice. But the court reserved its ruling on the amended exhibit list until the next scheduled trial day.
¶76 On the next trial date, the court noted that counsel for Ms. Dahl had yet to submit an acceptable witness or exhibit list. By October 7, the fifth day of trial, counsel continued to attempt to introduce exhibits that had not previously been disclosed to the court or opposing counsel. The district court properly refused to allow these exhibits. On October 23 and November 4, counsel for Ms. Dahl filed supplemental exhibit lists, which identified particular documents, but did not identify which witness would be used to introduce the documents. Because Ms. Dahl's counsel failed to submit a proper exhibit list, the district court was confronted with the daunting task of determining, on a document-by-document basis during the course of trial, which exhibits had been previously produced. If a document had been previously produced to opposing counsel, the trial court admitted it. If not, the court excluded it.
¶77 Ms. Dahl argues that the district court abused its discretion when it excluded most of her exhibits based on counsel's failure to submit a proper exhibit list. Specifically, Ms. Dahl argues that the district court's pretrial order requiring that the parties exchange witness lists and exhibits was unclear because it did not specify a particular format for the lists. We disagree. The district court's order clearly directed the parties to designate particular documents to be used with particular witnesses and to exchange those documents with opposing counsel. And even if the district court's order were unclear, counsel was given numerous opportunities to rectify the situation and failed to do so. The district court would have been justified in excluding all of Ms. Dahl's exhibits based on her failure to submit a proper exhibit list prior to the start of trial. And it appropriately exercised its discretion when it excluded all documents except those that the parties stipulated had been previously disclosed during discovery.
3. The District Court Did not Abuse Its Discretion When It Limited the Testimony of Ms. Dahl's Expert Witnesses
¶78 Ms. Dahl argues that the district court abused its discretion when it limited the testimony of two of her expert witnesses, Dr. Barden and Dr. Mejia. Ms. Dahl timely designated Drs. Barden and Mejia as experts prior to trial.18 Although the district court allowed these two experts to testify, it limited the scope of their testimony to the reports and affidavits the experts had filed earlier in the litigation. Ms. Dahl asserts that this limitation was an abuse of discretion. We disagree.
¶79 Rule 26(a)(3) of the Utah Rules of Civil Procedure governs expert testimony.19 For each expert witness whom a party expects to testify, the party is required to submit a written report prepared by the expert. UTAH R. CIV. P. 26(a)(3)(B) (2009). In relevant part, the rule requires:
The report shall contain the subject matter on which the expert is expected to testify; the substance of the facts and opinions to which the expert is expected to testify; a summary of the grounds for each opinion; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Id. Though counsel for Ms. Dahl filed what were styled as expert witness reports for Drs. Barden and Mejia, neither report complied with the requirements of rule 26.
¶80 The expert report for Dr. Barden consisted of a mere four pages, contained no summary of Dr. Barden's qualifications or list of his publications, and identified the proposed subject matter of his testimony only in the most cursory way. For example, Dr. Barden's expert report proposed that he would "testify regarding the importance of proper methodology and responsible behavior in child custody investigations, evaluations, and litigation." As grounds for Dr. Barden's opinion, the report cited Dr. Barden's "education, knowledge, training, and experience in the fields of clinical, child-clinical, and forensic psychology." As the district court noted, the expert report was "far less than adequate" to inform the court or opposing parties as to the scope and content of Dr. Barden's testimony.
¶81 The expert report for Dr. Mejia was similarly deficient. The report was less than two pages and contained only vague descriptions of Dr. Mejia's proposed testimony. The report failed to include a list of Dr. Mejia's publications or of previous cases in which he had testified.
¶82 Despite these shortcomings, the district court allowed Drs. Mejia and Barden to testify, but limited their testimony to that consistent with reports they had filed previously in the litigation. Given Ms. Dahl's failure to provide the kind of proper notice of expert testimony contemplated by rule 26, the district court did not abuse its discretion in limiting these experts' testimony in this way.
¶83 Pretrial discovery and disclosure are basic skills that we expect all attorneys to possess. Our already overworked district court judges should not be required to provide remedial instructions to counsel on how to properly conduct discovery, designate trial exhibits, or prepare expert reports. Our courts rely heavily on the competence and diligence of counsel. The evidentiary rulings Ms. Dahl complains of were largely the result of her counsel's inability to follow basic rules of procedure and properly manage discovery. Accordingly, we conclude that the district court did not abuse its discretion in its pretrial evidentiary rulings.
C. The District Court Did not Abuse Its Discretion in Denying Ms. Dahl's Requests for Both Temporary and Permanent Alimony
¶84 Ms. Dahl next challenges the district court's denial of her requests for temporary and permanent alimony. We review a district court's alimony determination for an abuse of discretion and "will not disturb [its] ruling on alimony as long as the court exercises its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions." Connell v. Connell, 2010 UT App. 139, ¶ 5, 233 P.3d 836 (internal quotation marks omitted). We conclude that although Ms. Dahl may have qualified for an award of both temporary and permanent alimony, the district court did not abuse its discretion in refusing to make such an award because Ms. Dahl's counsel repeatedly failed to provide the credible financial documentation necessary for the district court to make an adequate finding as to Ms. Dahl's financial need.
1. The District Court Did not Abuse Its Discretion in Denying Ms. Dahl's Request for Temporary Alimony
¶85 Ms. Dahl made several requests for temporary alimony in the years between the initial divorce filing and the trial. In a motion for order to show cause filed shortly after Dr. Dahl petitioned for divorce, Ms. Dahl moved the court for an order to show why, among other requests, "[Dr. Dahl] should not be ordered to pay temporary alimony in the amount of $9,300 per month." Ms. Dahl attached as an exhibit to her motion a list of her alleged monthly living expenses, which totaled just over $11,000. But Ms. Dahl failed to include any financial documentation to substantiate these alleged expenses. In his response to Ms. Dahl's motion, Dr. Dahl refuted nearly every expense and instead argued that reasonable living expenses for Ms. Dahl would total approximately $6,000 per month.
¶86 At the hearing on Ms. Dahl's first request for temporary alimony, the commissioner determined that Ms. Dahl's declaration was not sufficiently detailed and did not have enough evidentiary support for him to comply with the rules, statutes, and case law governing alimony awards. The commissioner also found that Ms. Dahl's alleged $11,000 in monthly expenses had been "based on the assumption that she would be awarded custody of the minor children." Because Dr. Dahl had since been awarded temporary custody of the children, the commissioner found that Ms. Dahl's expenses, "were no longer relevant to the temporary circumstances of the parties." Citing to Whitehead v. Whitehead, 836 P.2d 814 (Utah Ct. App. 1992), superseded by statute on other grounds, UTAH CODE § 78B-12-112, and to rule 101 of the Utah Rules of Civil Procedure, the commissioner held that "the Court is unable to consider [Ms. Dahl's] requests ... based on the inadequate information [she] provided to the Court."
¶87 Two months later, Ms. Dahl filed an affidavit in support of her request for temporary alimony. The affidavit, however, did not include any verification of the expenses she claimed, nor did it include any verification of her current financial condition or need. Instead, Ms. Dahl attached a 2005 tax return and an appraisal of the marital home in which she was no longer living. The commissioner again found the evidence insufficient to support an alimony award and ordered Ms. Dahl to file a financial declaration that complied with rule 101(d) of the Utah Rules of Civil Procedure.
¶88 A third hearing on this issue was held, but Ms. Dahl had not yet complied with the court's prior order that she provide a financial declaration. The commissioner again, relying on the Rules of Civil Procedure, the Utah Code, and relevant case law, declined to award temporary alimony. The matter was then raised in the district court at a hearing just four days later. The district court ordered Ms. Dahl to comply with the commissioner's order for a financial declaration.
¶89 Ms. Dahl made a third attempt at documenting her financial need a month and a half later when she filed a "Verified Financial Declaration." In contrast to her first declaration, where she testified to just over $11,000 in monthly expenses, she testified to over $40,000 in monthly expenses in addition to $281,428.62 in legal fees and an additional $148,000 in projected fees. But Ms. Dahl again failed to provide verification of any of these expenses. She provided no proof of income, no bills, no checks, no lease agreement, no bank statements. In short, she provided absolutely no evidence to support the claimed expenses. The commissioner again ruled that Ms. Dahl had failed to provide sufficient evidence to support an alimony award under Utah law. Specifically, he stated that he was unable to make the necessary factual findings due to a lack of credible evidence. When the district court reviewed and ruled on the commissioner's recommendation, Ms. Dahl had still not complied with the commissioner's order for a financial declaration, and the district court therefore adopted the commissioner's findings. The district court expressed dismay with the fact that Ms. Dahl had originally attested to $11,000 in monthly expenses for herself and her two children and had subsequently attested to $40,000 in monthly expenses for herself alone. The district court found that "those two amounts [could not] be reconciled" and that Ms. Dahl's financial declaration was therefore not credible. Thus the court declined to award Ms. Dahl temporary alimony.
¶90 Nearly a year after the divorce petition had been filed, Ms. Dahl filed another motion for temporary alimony, accompanied by a new affidavit. In this affidavit, Ms. Dahl claimed expenses of $33,166 per month. Again, there was no supporting documentation for this amount. One day prior to the hearing on the motion, Ms. Dahl submitted a notice of errata to her affidavit, which finally, after a year of litigation, included a copy of a rent check, other checks written for unknown purposes, utility bills, and past-due medical bills. These bills totaled $2,651.78.
¶91 At the hearing the next day, the commissioner treated this second motion for temporary alimony as a motion to reconsider the court's prior rulings that no temporary alimony was warranted. The commissioner denied Ms. Dahl's motion to reconsider, reasoning that Ms. Dahl had been given ample opportunity to file an acceptable affidavit (one year of discovery and at least five hearings), and that the court's prior ruling denying temporary alimony was now the law of the case.
¶92 The district court ultimately adopted the commissioner's recommendation on the alimony issue. The district court found that "[Ms. Dahl's] [c]ounsel was previously permitted to re-file this Motion several times" but each time had failed to include the necessary supporting documents. The court therefore ruled that Ms. Dahl "had failed to meet her burden of proof" and again denied her request for temporary alimony. Although the court never granted Ms. Dahl an official award of temporary alimony, she was awarded a small number of one-time payments totaling $19,000, and Dr. Dahl voluntarily gave Ms. Dahl $4,000 a month throughout the entire course of the divorce proceedings. In total, Ms. Dahl received $162,000 from Dr. Dahl while the divorce was pending.
¶93 On appeal, Ms. Dahl argues that the district court abused its discretion in failing to award her temporary alimony. According to Ms. Dahl, she demonstrated her need for alimony during the pendency of the divorce proceedings. Alternatively, she argues that Dr. Dahl's financial declarations were sufficient to demonstrate her need. Specifically, she asserts that she provided the court with "at least five financial declarations, along with several other filings supporting her need for alimony, providing copies of her verified statements of income and expenses."
¶94 The Utah Alimony Statute, UTAH CODE § 30-3-5(8), articulates seven factors that a court must consider in making an alimony determination:
(i) the financial condition and needs of the recipient spouse;
(ii) the recipient's earning capacity or ability to produce income;
(iii) the ability of the payor spouse to provide support;
(iv) the length of the marriage;
(v) whether the recipient spouse has custody of minor children requiring support;
(vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and
(vii) whether the recipient spouse directly contributed to any increase in the payor spouse's skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.
UTAH CODE § 30-3-5(8)(a).
If the settlor of any trust specifically declares in the instrument creating the trust that such trust is irrevocable it shall be irrevocable for all purposes, even though the settlor is also the beneficiary of such trust.
Such trust shall, under no circumstances, be construed to be revocable for the reason that the settlor and beneficiary is the same person.
Having concluded that Utah law applies, we need not address these provisions. And in any event, section 163.560 only clarifies that an otherwise irrevocable trust will not be construed revocable merely because the settlor is also named as a beneficiary. This section is best read as abrogating the sole beneficiary rule in Nevada. See De Lee v. Hicks, 96 Nev. 462, 611 P.2d 211, 212 (1980) (explaining that the sole beneficiary rule renders an otherwise irrevocable trust revocable). It provides no insight as to whether the Trust should be deemed irrevocable in the first instance.