McPherson v. Copp

2024 UT App 107

THE UTAH COURT OF APPEALS

SEAN MCPHERSON,
Appellee,
v.
LYNN COPP,
Appellant.

Opinion
No. 20220404-CA
Filed August 1, 2024

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

Laja K. Thompson, 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.

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.
McPherson v. Copp

BACKGROUND 1

¶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.

1. The recitation of the facts is based on the trial court’s
unchallenged factual findings.

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McPherson v. Copp

¶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

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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

2. The trial court also concluded that Copp’s counterclaim should
be dismissed because Copp had failed to meet her burden to
prove that “McPherson consented to be married to [Copp].”
Although Copp challenges the court’s conclusion on this point,
we need not address this challenge in light of our resolution of the
other issues raised on appeal. See Volk v. Vecchi, 2020 UT App 77,
(continued…)

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McPherson v. Copp

ISSUES AND STANDARDS OF REVIEW

¶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).

¶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

¶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

¶ 12, 467 P.3d 872 (explaining that a party attempting to prove the
existence of an unsolemnized marriage must establish “each
required [statutory] element . . . by sufficient evidence”).

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McPherson v. Copp

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).

¶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.

¶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
(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 (quotation
simplified).

¶16 After considering all the evidence, including extensive
witness testimony, the trial court found the parties had “a partial
reputation as being married.” The court made several findings
related to the witness testimony that had been provided, which

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included findings concerning sixteen of McPherson’s witnesses.
The court found that these witnesses had all testified credibly “to
the same effect—they knew the parties lived together, but were
not married; that neither party ever said they were married; and
that neither party ever introduced the other, or referred to the
other, as ‘spouse,’ ‘husband,’ or ‘wife.’”

¶17 However, the trial court also recognized the existence of
conflicting evidence, finding that “certain evidence
corroborated[] that the parties sometimes held themselves out as
being married.” The court found that several of Copp’s
witnesses—including Copp’s brother, Copp’s mother, the parties’
Park City landlord, Sandy Neighbor, and WWS Parent—testified
credibly as to this effect. But the court also found that many of
Copp’s witnesses—including Teacher, Sandy Neighbor, WWS
Parent, and even Copp’s mother—based their belief that the
parties were married on a general assumption that people who
live together and have a child together are married.

¶18 Copp contends these findings are clearly erroneous
because McPherson’s witnesses “knew only McPherson” and had
“met Copp once or not at all.” Thus, she argues that the trial court
should have given “greater weight to the testimony of those
witnesses who have first-hand knowledge of the couple’s
interactions at [Son’s] school, in their neighborhood, and mutual
friends.” (Emphasis omitted.) But Copp’s argument is unavailing
in light of the applicable standard of review. It is well established
that “a trial court’s factual determinations are clearly erroneous
only if they are in conflict with the clear weight of the evidence,
or if this court has a definite and firm conviction that a mistake
has been made.” Lamar v. Lamar, 2012 UT App 326, ¶ 2, 292 P.3d
86 (quotation simplified). When reviewing a trial court’s factual
findings, we “must give due regard to the trial court’s
opportunity to judge the credibility of the witnesses.” Utah R. Civ.
P. 52(a)(4). When making findings or credibility determinations,
the trial court need not “detail[] its justification for finding
particular evidence more credible or persuasive than other
evidence supporting a different outcome.” Shuman v. Shuman,

20220404-CA 7 2024 UT App 107
McPherson v. Copp

2017 UT App 192, ¶ 6, 406 P.3d 258, cert. denied, 412 P.3d 1257
(Utah 2018). And when determining if the court’s findings are
“against the clear weight of the evidence and thus clearly
erroneous, we view the facts in the light most favorable to the
findings.” Kelley v. Kelley, 2000 UT App 236, ¶ 18, 9 P.3d 171.

¶19 Copp complains that the trial court improperly weighed
witness testimony, and it is apparent that she “clearly views the
evidence as compelling a different outcome.” Shuman, 2017 UT
App 192, ¶ 9. “But it is not within our purview to engage in a
reweighing of the evidence, and [Copp] has not demonstrated
that the evidence underlying the trial court’s findings is
insufficient.” Id. (quotation simplified). Indeed, the court’s
findings were based on a series of credibility determinations,
which are best left to the trial court. See Utah R. Civ. P. 52(a)(4).

¶20 Based on the foregoing, we conclude that Copp has not
demonstrated that the trial court clearly erred when making any
of the challenged factual findings.

II. Exclusion of Witnesses

¶21 Next, Copp asserts the trial court abused its discretion by
excluding twenty-three of her witnesses from testifying as a
sanction under rule 26 of the Utah Rules of Civil Procedure. We
disagree.

¶22 Under rule 26(a)(1), parties must timely file initial witness
disclosures that provide both the contact information and the
expected testimony of each witness. Utah R. Civ. P. 26(a)(1). A
party must make these disclosures “based on the information then
known or reasonably available” to them, id. R. 26(d)(1), and “[a]
party is not excused from making disclosures . . . because [they
have] not completed investigating the case,” id. R. 26(d)(3). If a
party discovers that an initial disclosure is “incomplete,” the party
must “timely” supplement the disclosure and the supplemental
disclosure “must state why the additional . . . information was not
previously provided.” Id. R. 26(d)(5). “When a party fails to

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comply with rule-based disclosure requirements, that party is
presumptively barred from relying on that witness, document, or
material at trial” “unless the party seeking relief from disclosure
requirements can demonstrate that its noncompliance was
harmless or excused by good cause.” Bailey v. Bailey, 2024 UT App
51, ¶ 25, 548 P.3d 519 (quotation simplified); see also Utah R. Civ.
P. 26(d)(4).

¶23 On June 4, 2019, Copp filed her initial disclosures, which
listed only two witnesses: herself and McPherson. Then, on March
16, 2021, the last day of the re-opened discovery (which was 491
days after original fact discovery had closed), Copp submitted her
pretrial disclosures. These disclosures listed an additional thirty-
two witnesses that Copp had not included in her initial
disclosures. Copp did not explain why the additional witnesses
were not disclosed prior to this date, and she did not include
contact information for twenty-nine of these newly disclosed
witnesses.

¶24 In its order addressing McPherson’s motion to exclude
Copp’s newly disclosed witnesses, the trial court first concluded
that Copp’s disclosure of the additional witnesses was untimely.
The court rejected Copp’s argument that the disclosure was
timely “because it came within the 60-day extension,” reasoning
as follows:

[Copp] had a duty to disclose as many witnesses as
she had knowledge of when making her initial
disclosures, to timely supplement her initial
disclosures as additional witnesses become known
to her, and to provide an explanation as to why the
additional witnesses were not previously disclosed.
Rule 26 does not allow a party to wait until the last
day of fact discovery to disclose 32 additional
witnesses without an explanation of why the
witnesses were not previously disclosed.

(Citations omitted.)

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¶25 Under the circumstances, we perceive no abuse of
discretion in the trial court’s timeliness determination. This court
has recently reaffirmed that “[d]epending on the circumstances, a
disclosure produced a few days before the close of fact discovery
may still not be considered timely.” De La Cruz v. Ekstrom, 2024
UT App 18, ¶ 14, 545 P.3d 285. That is because “timeliness is
determined under the facts and circumstances of each particular
case, and in the sound discretion of the court.” Id. ¶ 15 (quotation
simplified). When making a timeliness determination, a court
must assess a party’s disclosures “against the backdrop of the
time, place[,] and manner requirements relating to discovery in
the case.” Id. ¶ 18 (quotation simplified).

¶26 Here, the trial court did exactly that. Importantly, all thirty-
two of Copp’s undisclosed witnesses were family, friends, or
general acquaintances that Copp had known for years. Indeed,
the purpose of their testimony was to demonstrate that they had
witnessed the parties over time and believed them to be married.
Copp provided no explanation as to why she did not disclose
these witnesses earlier, and as a key issue was whether the parties
had acquired “a uniform and general reputation as husband and
wife,” the importance of these witnesses from the outset of the
case was apparent. Given that the witnesses were known at the
time Copp filed her initial disclosures and the lack of proposed
justification for their late disclosure by Copp, the court properly
exercised its broad discretion to assess Copp’s disclosure as
untimely.

¶27 After concluding that Copp’s disclosure was untimely, the
trial court then turned to the question of whether the untimely
disclosure was either harmless or excused by good cause. See Utah
R. Civ. P. 26(d)(4). Regarding good cause, the court found Copp’s
argument that she had been “represented by three different sets
of counsel” and it was therefore “reasonable for certain details to
be lost in the handoff between counsel” to be “unpersuasive.” The
court noted that Copp’s current counsel had been representing
her since December 2020, which was “more than three months
before the close of the extended discovery period,” and that

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McPherson v. Copp

counsel therefore had “ample” time to discover that
supplementation was necessary. Moreover, the court reasoned
that Copp’s prior counsel should have also been aware that
supplementation was necessary given that prior counsel had filed
and served declarations in 2019. We perceive no abuse of
discretion in the court’s assessment. That Copp was represented
by three sets of counsel does not explain why any individual
counsel was unable to identify the additional witnesses until the
last day of discovery. In essence, Copp is asking us to disregard
“the intent of rule 26, which is to preclude parties from trying to
gain an advantage by offering ‘surprise’ testimony at trial that has
not been disclosed to, or evaluated by, the opposing party,”
Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 24, 438
P.3d 25, aff’d, 2020 UT 59, 472 P.3d 927, to make up for her
counsel’s failure to follow disclosure rules. This we will not do.
As such, we discern no abuse in the court’s good cause
determination.

¶28 As to harm, the trial court analyzed the witnesses in two
groups. For the first group of nine witnesses, the court concluded
that Copp had previously submitted declarations and depositions
for each witness and that the parties had stipulated “not to object
to the use of previously disclosed witnesses.” Accordingly, the
court found that McPherson was not harmed by the late
disclosure of these nine witnesses. The court reached the opposite
conclusion, however, with regard to the other twenty-three
witnesses. For this group, the court concluded that Copp’s late
disclosure harmed McPherson because it “deprived [him] of a
reasonable opportunity” to evaluate those witnesses and to gain
“knowledge he could have used in designing a discovery strategy
and determining how to spend his litigation resources.” Given the
close proximity between the date of disclosure and the date of the
evidentiary hearing, we perceive no abuse in the court’s
assessment that McPherson would have been harmed by allowing
these witnesses to testify. Due to the late disclosure, McPherson
was hamstrung in his ability to properly investigate and prepare
to address these witnesses. Accordingly, we see no abuse of
discretion in the court’s finding of harm.

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McPherson v. Copp

¶29 In sum, on the facts of this case, the trial court did not abuse
its discretion in concluding that Copp’s disclosure of the
additional thirty-two witnesses was untimely. And the court
likewise acted within its discretion in excluding twenty-three of
those witnesses from testifying at the evidentiary hearing based
on its determination that Copp did not show that her failure to
timely disclose was harmless or excused by good cause.

CONCLUSION

¶30 Copp has failed to demonstrate that the trial court’s factual
findings concerning the parties’ uniform and general reputation
as husband and wife were clearly erroneous. Likewise, Copp has
not demonstrated that the court abused its discretion in excluding
many of her witnesses as a sanction for failing to timely disclose
them. Accordingly, we affirm the dismissal of Copp’s
counterclaim.

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