Bailey v. Bailey

               THE UTAH COURT OF APPEALS

                       AMY L. BAILEY,
                         Appellee,
                             v.
                      DANNY RAY BAILEY,
                         Appellant.

                            Opinion
                       No. 20220534-CA
                      Filed April 11, 2024

        Second District Court, Farmington Department
             The Honorable Michael D. DiReda
                        No. 094701582

              Julie J. Nelson, Attorney for Appellant
              Brian E. Arnold, Attorney for Appellee

    JUDGE RYAN M. HARRIS authored this Opinion, in which
     JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1     In 2019, nine years after her divorce, Amy L. Bailey (Amy)
filed a petition to modify the child support provisions of the
divorce decree, asserting that her ex-husband Danny Ray Bailey’s
(Danny) 1 income had significantly increased. The matter
proceeded to trial, where the district court sanctioned Danny for
noncompliance with pretrial disclosure obligations. Among other
sanctions, the court prohibited Danny from presenting any
evidence, and from refuting any evidence Amy presented,
regarding his income. At the conclusion of this rather one-sided



1. Because the parties share the same last name, we refer to them
by their first names for ease of reference, with no disrespect
intended by the apparent informality.
                          Bailey v. Bailey


trial, the court made findings and conclusions regarding Danny’s
income that Danny believes are inaccurate.

¶2     Danny now appeals those findings and conclusions, as
well as the court’s underlying sanctions order. Danny asserts that
the sanctions order was inappropriate and that he is entitled to a
new trial at which he may present evidence regarding his income.
We agree with Danny, and therefore vacate the court’s
modification order and remand the case for a new trial.


                        BACKGROUND

                      The Petition to Modify

¶3     Amy and Danny divorced in 2010; at that time, the parties
were able to reach a negotiated settlement which was later
incorporated into a decree of divorce (the Decree). The parties
have three children together, all of whom were minors at the time
of their divorce; only one of the children was a minor at the time
of trial. Under the terms of the Decree, Amy was awarded
primary physical custody of the children, and Danny was
awarded certain parent-time. Danny is self-employed, and his
income for child support purposes was determined to be $8,837
per month. Amy’s earnings at that time were determined to be
$4,071 per month. Using these income figures, Danny’s child
support obligation was calculated to be $1,485 per month.

¶4      In 2019, nine years after entry of the Decree, Amy filed a
petition to modify, seeking, among other things, a modification of
Danny’s child support obligation. Discovery and disclosure
deadlines were set, with fact discovery scheduled to close in
November 2019 and expert discovery scheduled to close in March
2020. The expert discovery deadline passed, and neither party
designated any expert witnesses. But in September 2020, Amy
filed a statement of discovery issues, asserting that Danny had not
disclosed certain financial documents, including his 2019 tax



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return, and asking that Danny be ordered to do so. Amy further
requested that she be allowed “to designate an expert to opine on
the limited issue of [Danny’s] expenses versus business
expenses.” Danny objected to this request, arguing that expert
discovery deadlines were “far past” and that Amy “should not be
allowed to re-open expert discovery and further extend this
matter.” After a hearing, the court ordered both parties to disclose
their 2018 and 2019 tax returns and associated financial
documents to the other, but the court agreed with Danny on the
expert disclosure issue, denying Amy’s request and stating that it
was “not inclined to extend discovery deadlines.”

¶5      Eventually, after some delays due to matters not relevant
here, the court scheduled a one-day trial regarding the childsupport-related issues to occur on November 10, 2021. In its
pretrial order, the court ordered that, “at least 28 days before”
trial, the parties were to “provide . . . pre-trial disclosures,”
including “[t]he name . . . of each witness who will be called at
trial,” “an updated financial declaration,” and “copies of their
federal income tax returns for the two most recent tax years.”

¶6     On November 2, eight days before trial, Danny filed a
motion to continue, asserting that he had “been unable to
complete his 2020 tax return due to problems with his accounting
software,” and requesting that the trial be continued so that the
parties could “proceed with current and accurate income
information.” Additionally, Danny brought to the court’s
attention that, on October 20, just twenty-one days before trial—
and notwithstanding the court’s previous reticence to extend
discovery deadlines—Amy had, “for the first time,” identified
two expert witnesses that she intended to call at trial. Danny
asserted that these disclosures should have been made “within 14
days after the close of fact discovery,” which, in this case, was
some two years earlier in November 2019. Danny asked the court
to bar Amy from calling these witnesses at trial and, alternatively,
stated that if the court was inclined to allow Amy to call these
experts, he should be afforded “the appropriate disclosures and



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discovery opportunities set forth” in rule 26 of the Utah Rules of
Civil Procedure. As an added precaution, Danny filed a notice
indicating that—contingent on the court’s ruling as to their
admissibility—he would like “to receive written reports” from
Amy’s newly-disclosed expert witnesses.

¶7      On the same day Danny filed his request for a continuance,
Amy filed an objection. While pressing the court to move forward
with the trial as scheduled, Amy simultaneously defended the
timing of her expert disclosures. On this point, Amy argued that
she was attempting to follow the court’s pretrial order, which
stated that the list of witnesses that would be called to testify only
needed to be provided twenty-eight days before the trial. And,
according to Amy, she was doing just that by identifying in her
pretrial disclosures the two expert witnesses she intended to call
at trial. She argued that these two witnesses were “absolutely
necessary” because she intended to rely on “their expert opinion”
to demonstrate Danny’s “true income and the expenses being
reported on his personal and business income taxes.”

¶8      Three days later, the court held a hearing on Danny’s
motion. At the conclusion of the hearing, the court granted
Danny’s request for a continuance of the trial date and
rescheduled the trial to occur on March 1, 2022. The court also
indicated that it would allow Amy to call the expert witnesses and
it further observed that the continuance would give Danny time
to consider whether he wanted to call a rebuttal expert witness of
his own. At the conclusion of the hearing, the court noted that the
main reason for continuing the trial was so that Danny could
complete his 2020 tax return and disclose it to Amy, and it asked
the parties whether they wanted to “set a deadline on the tax
return.” Danny’s attorney stated that he’d rather not set a specific
deadline, and Amy’s attorney didn’t argue for one either, stating
that he and Danny’s attorney had “worked well together on that
kind of stuff” and that he didn’t think any specific deadline for
disclosure of the tax return would be necessary. The court pushed
back a bit, asking, “Not a deadline? You’re okay just leaving it out



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there?” Amy’s attorney responded by stating that he was “fine
with that.” In accordance with the parties’ wishes, the court set no
specific deadline for Danny’s production of his 2020 tax return.
The court’s previous pretrial order remained in place, however;
as noted, it specified that all pretrial disclosures—including recent
tax returns—were due “at least 28 days before” trial, which given
the scheduled trial date would be February 1, 2022.

¶9    Not long after the November hearing on the motion to
continue, Danny’s attorney withdrew. Danny then elected to
proceed to trial pro se.

¶10 On February 3, less than four weeks before the trial date,
the court held a status conference. At the conference, Amy’s
attorney indicated that he had recently received Danny’s newlycompleted 2020 tax return—specifically stating that he “just got
those the other day”—but that he was still waiting to receive
certain bank statements from Danny. In response, Danny—now
representing himself—raised certain issues with Amy’s
disclosures, indicating that he had not received all of her bank
account information. After hearing from both parties, the court
ordered Danny to provide Amy with the requested bank
statements and ordered Amy “to do the same.”

¶11 During the status conference, the court also discussed the
expert witness issue, and it asked Danny if he “had a chance to
speak with or read the report from” Amy’s experts. Danny
indicated that he had not received any such report. Amy’s
attorney stated that he believed the report had been provided
either to Danny or his previous counsel, but he offered to
“resend” the report to Danny just in case.

                             The Trial

¶12 On March 1, the trial proceeded as scheduled, with Danny
representing himself and Amy represented by counsel. At the
start of the proceeding, before any evidence had been presented,



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Danny brought to the court’s attention that, two weeks earlier, he
had filed an objection to Amy’s experts, asking that they be
excluded from testifying because he still had not received any
reports from them. At this, the court turned to Amy’s attorney for
an explanation. Amy’s attorney this time did not claim that any
expert report had ever been disclosed to Danny; instead, Amy’s
attorney explained that Amy had been unable to “supplement[]”
her earlier disclosures with the new experts’ reports because
Danny had failed to timely provide Amy with financial
information—including, most significantly, the 2020 tax return—
that the court “had ordered [Danny] numerous times” to disclose.
Amy’s attorney proposed that if the court was disinclined to allow
these witnesses to testify as experts, they could, instead, be
allowed to testify as “factual witness[es]” just to “tell [the court]
what a line means on a tax return.”

¶13 Concerned about possible disclosure failings on both sides,
the court asked Amy’s attorney whether it was “still the case” that
Danny had failed to deliver “the documents, the returns, the
information that [the court] ordered be delivered.” To this, Amy’s
attorney responded, “Not timely.” Seemingly dismayed at the
lack of cooperation between the parties, the court reminded them
that the reason it had continued the trial was so that the parties
could “exchange documents,” yet they had apparently still failed
to “timely” comply with its instructions. Addressing Danny, the
court stated, “So if you’re going to come to me and ask . . . that I
exclude a witness, you’ve got to come in with clean hands. If your
hands are soiled because you yourself have not complied with the
rule and you’ve not told me that, that’s a problem, because I’m
not going to apply the rules unevenly.” The court—without Amy
making any specific request for a negative-inference sanction 2—


2. Prior to the trial, Amy had filed a document stating a general
objection to Danny’s pretrial disclosures, asserting that some of
Danny’s exhibits had not been disclosed “in a timely manner” and
asking the court to enter an order barring Danny from using such
                                                    (continued…)


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                          Bailey v. Bailey


then told Danny that his apparent untimely disclosure of the 2020
tax return was “a problem that leads [the court] to think that
perhaps a negative inference should be drawn against you . . .
because why wouldn’t you just turn over the information that is
critical to the [c]ourt’s determination on income since this is an
income case?”

¶14 Before ruling on the matter, the court wanted to know how
much time had elapsed between the completion of Danny’s 2020
tax return and Danny’s disclosure of that return to Amy. Danny
indicated that “[p]robably two months” had elapsed between
completion and disclosure. The court then asked, “Why wouldn’t
you have just disclosed [the return] immediately once you had
them done? Why did you wait two months to disclose [it]?”
Danny explained that he was looking for new counsel at that time
and that his understanding was that his “obligation was to
supply” those documents with his pretrial disclosures, twenty-eight days before trial, which he did. Danny also reminded the
court—twice—that, at the conclusion of the November hearing,
no specific deadline for disclosure of the tax return had been set.
The court then, without prompting from Amy’s attorney, began
to read from rule 26 of the Utah Rules of Civil Procedure, stating
to Danny that, as soon as he learned that his disclosure was
“incomplete,” he was required to “timely serve on the other
parties the additional or correct information.”

¶15 After allowing both sides to argue the matter, the court
determined that “at the end of the day,” Danny was the one who
“didn’t disclose timely.” The court therefore told Danny that Amy
“couldn’t have given you a full expert report, because you hadn’t
given them the predicate information that was needed so the
expert could do his or her job.”



exhibits at trial. Neither in that document nor at trial did Amy ask
for a negative-inference sanction (at least not until after the court
brought it up on its own).


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                          Bailey v. Bailey


¶16 After a recess to allow the parties one last opportunity to
negotiate, the court considered what, if any, sanction should be
imposed on Danny for his apparent untimely disclosure of his
2020 tax return. The court believed that it could impose any of the
sanctions set forth in rule 37(b) of the Utah Rules of Civil
Procedure. After argument, the court determined it would be
“inequitable” to allow Danny “to go forward and argue” what he
thought his income should be when he “deprived the other side
of [the] complete and accurate financial information that their
[experts] needed in order to present a complete picture” of
Danny’s finances. It therefore ordered that, during the trial,
Danny would be prohibited from refuting any evidence that Amy
introduced about Danny’s income, and he would not be allowed
“to introduce [his] own evidence in support of what [he]
believe[d]” his income should be. Basically, the only thing that
Danny would be able to do at trial would be to present or
challenge evidence presented related to Amy’s income.

¶17 Concerning Amy’s experts, the court determined it would
be appropriate to allow them to testify as fact witnesses. Amy
ended up calling only one of the two expert witnesses she listed
in her pretrial disclosures, a forensic accountant (Accountant). At
the beginning of his testimony, Accountant was reminded that he
was not permitted to give “expert opinion” because he would, as
Amy’s counsel described it, be a “factual witness.”

¶18 During his direct examination, Accountant was presented
with exhibits containing Danny’s tax returns—including his 2020
tax return—and other financial documents and was asked
questions concerning those documents. For example, Accountant
was asked about the purpose of lines “28 A and B” on one of the
forms, and he responded, “Those are there to present to the IRS
sources of income from businesses that the taxpayer owns.” At
another point in the trial, Accountant was also asked whether the
W-2 wage on another form was for Danny or if it was “a qualified
deduction” from Danny’s company. Accountant responded it was
“neither,” and that “the income from the business” would be



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different from the amount represented on the form “because [it]
specifically calculates adjusted income for [that] specific tax
deduction.” Direct examination of Accountant continued in this
fashion, with him testifying about several line items contained in
Danny’s tax returns and what information should or should not
be contained therein.

¶19 Amy was the only other witness to testify at trial. After
submission of the evidence, Amy’s attorney made a closing
argument. The court then went back and forth with Amy’s
attorney, discussing the various figures that had been presented
and what implications they might have on the calculation of child
support arrearages going back to the date Amy filed her petition.
After completing the calculation, the court made an oral ruling
that, for child support purposes, Danny’s monthly income was
$42,555 (as opposed to $8,837 under the original Decree) and that
Amy’s monthly income was $6,265 (as opposed to $4,071 under
the original Decree). Based on those figures, the court then
calculated Danny’s ongoing child support obligation, as well as
arrearages owed dating back to the month after Amy filed her
petition to modify. Specifically, the court determined that Danny
owed Amy $108,027 in back child support. Because of the “sizable
back child support due and owing,” the court declined Amy’s
request for attorney fees. A few weeks later, the court entered a
written order memorializing its oral ruling.


            ISSUES AND STANDARDS OF REVIEW

¶20 Danny now appeals the court’s modification order. In
particular, Danny challenges the court’s findings and conclusions
regarding his own monthly income, and he asserts that the court’s
determinations in that regard are infirm because it improperly
sanctioned him and did not allow him to present evidence
supporting his position or refuting Amy’s position on that issue.
Thus, Danny’s appeal centers on the court’s application of Utah
rules regarding discovery, disclosure, and sanctions.



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                          Bailey v. Bailey


¶21 A district court’s interpretation of the Utah Rules of Civil
Procedure is reviewed for correctness. Hansen v. Kurry Jensen
Props. LLC, 

, 

. For this reason,
a court’s decision regarding the adequacy of a party’s disclosures
is reviewed for correctness. See Butler v. Mediaport Ent. Inc., 

, 

 (stating that “we review for
correctness the district court’s conclusion that [a party’s]
disclosures were inadequate, because that determination is at root
a question of interpretation of” the applicable rules).

¶22 But when a district court’s interpretation of the applicable
rules is correct, we extend “a great deal of deference” to the
court’s decisions regarding its choice of sanctions, and we will
only disturb such rulings “if abuse of discretion is clearly shown.”
Raass Bros. Inc. v. Raass, 

, 

(quotation simplified). Similarly, we review deferentially a
“district court’s decision to admit or exclude evidence,” including
its “determination regarding the admissibility of expert
testimony” for an abuse of discretion. Northgate Village Dev., LC v.
City of Orem, 

, 

 (quotation
simplified). A court’s determination that a witness’s testimony is
“not expert testimony” is similarly reviewed for an abuse of
discretion. State v. Rothlisberger, 

, 

.


                            ANALYSIS

¶23 Danny’s primary challenge on appeal concerns the district
court’s imposition of sanctions, which he contends were
unwarranted. For the reasons discussed herein, we find merit in
Danny’s position, and agree that the court erred by imposing rule
37 sanctions on Danny.

¶24 There are two different rules of civil procedure that
concern discovery sanctions: rule 26 and rule 37. These two rules,
“although couched in different terms,” are both “aimed at
encouraging good faith compliance with the discovery



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                          Bailey v. Bailey


obligations imposed under the rules of civil procedure and both
provide the court with the authority to sanction those who fail to
live up to the requirements of those rules.” PC Crane Service, LLC
v. McQueen Masonry, Inc., 

, 

. But
despite certain commonalities, the sanctions available pursuant to
these rules are different and have distinct prerequisites.

¶25 The sanctions that a court may impose pursuant to rule
26(d) are narrow, but they are also “automatic and mandatory”
when the prerequisites are met. See Eskamani v. Auto-Owners Ins.
Co., 

, 

. That rule provides, in
relevant part, as follows:

      (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.

      (5) If a party learns that a disclosure or response is
      incomplete or incorrect in some important way, the
      party must timely serve on the other parties the
      additional or correct information if it has not been
      made known to the other parties. The supplemental
      disclosure or response must state why the
      additional or correct information was not
      previously provided.

Utah R. Civ. P. 26(d)(4), (5). 3 Thus, when a party fails to comply
with rule-based disclosure requirements, that party is


3. An earlier version of rule 37 contained a provision similar to
rule 26(d)(4). See Utah R. Civ. P. 37(h) (2013). That provision was
deleted in 2015, apparently because the drafters considered it
redundant. See 

 R. 37 advisory committee notes to 2015
                                                      (continued…)


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                            Bailey v. Bailey


“presumptively barred” from relying on that witness, document,
or material at trial. See Dierl v. Birkin, 

, 

, cert. denied, 

 (Utah 2023). A party seeking
sanctions under rule 26(d)—usually a party whose litigation
opponent has failed to timely disclose a required item—does not
need to file a motion for sanctions and obtain a court order
beforehand; rather, sanctions under this rule are “automatic and
mandatory” and do “not require a predicate discovery order.”
Eskamani, 

, ¶¶ 47–48. Courts should, upon
request, presumptively impose sanctions for noncompliance
unless “the party seeking relief from disclosure requirements” can
demonstrate that its noncompliance was harmless or excused by
good cause. Keystone Ins. Agency, LLC v. Inside Ins., LLC, 

, ¶ 18 & n.7, 

; see also Utah R. Civ. P. 26 advisory
committee notes (stating that sanctions are “the usual and
expected result” of noncompliance).

¶26 But the sanctions available under rule 26(d) are narrow and
specific: a party who fails to comply with rule-based disclosure
obligations, and who cannot show harmlessness or good cause,
“may not use the undisclosed witness, document, or material at
any hearing or trial.” See Utah R. Civ. P. 26(d)(4). Rule 26, by itself,
does not speak of or authorize any other sanction.

¶27 Rule 37, by contrast, is not self-executing: a party wishing
to take advantage of its more expansive sanctions menu must first
obtain a discovery order from the court. Subsection (a) of that rule
allows a party to “request that the judge enter an order regarding
any discovery issue.” 

 R. 37(a)(1). And subsection (b) allows a
“court, upon motion, [to] impose appropriate sanctions for the
failure to follow its orders.” 

 R. 37(b) (emphasis added).

amendment (“Former paragraph (h), which prohibited a party
from using at a hearing information not disclosed as required, was
deleted because the effect of non-disclosure is adequately
governed by Rule 26(d).”). In the rules’ current iteration, this
language appears only in rule 26(d)(4).


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                           Bailey v. Bailey


Interpreting the language of this rule, we have recently held that
imposition of sanctions under rule 37 is available only for
violation of a specific court order. See Eskamani, 

 (“Unlike rule 26, rule 37 conditions the availability of
discovery sanctions upon the failure of a party to follow a
discovery order.”).

¶28 But rule 37 offers a wide variety of sanctions options, and
it allows for sanctions that can be more severe than the sanction
authorized under rule 26. Where the violation in question is
disobedience of a court order (as opposed to noncompliance with
a rule-based disclosure requirement), rule 37 authorizes a court to
(among other things) “deem [a] matter . . . to be established,” give
an “adverse inference” instruction, order attorney fees, hold a
party in contempt, or even dismiss a party’s claim or defense. See
Utah R. Civ. P. 37(b)(1), (4)–(7). As relevant here, a court may also
opt to “prohibit the disobedient party from supporting or
opposing designated claims or defenses or from introducing
designated matters into evidence.” 

 R. 37(b)(2).

¶29 In imposing sanctions on Danny, the district court applied
rule 37. It read subsection (b) of that rule to Danny, and then
walked the parties through the sanctions options provided by rule
37(b). After discussion, and after a brief break to allow additional
negotiations, the court told Danny that he would not be
“permitted to refute” any evidence Amy presented regarding his
income, and that he would not “be permitted to introduce [his]
own evidence in support of what [he] believe[s his own] income
should be.” This is one of the sanctions listed in rule 37(b). See 

¶30 But under these circumstances, this sanction was
improper. Rule 37 is properly invoked only for violation of a court
order, see 

 R. 37(b); Eskamani, 

, and Danny
was not in violation of any court order. The only potentially
applicable order is the pretrial order that commanded the parties
to disclose their trial exhibits—including, significantly, their latest
tax returns and other updated financial information—at least



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                          Bailey v. Bailey


twenty-eight days prior to trial.4 Danny complied with this order
when he submitted his 2020 tax return on or before February 1,
2022—which was at least twenty-eight days prior to the scheduled
March 1 trial date. 5 And on appeal, at least, Amy makes no
argument to the contrary.6 In the absence of any evidence that
Danny was in violation of a court order, the court was not
permitted to impose sanctions on Danny pursuant to rule 37.




4. Recall that the court itself—at the hearing at which it ordered a
continuance of the November trial date—had been inclined to
order a specific deadline for Danny’s disclosure of the belatedly
prepared 2020 tax return, but ended up not doing so after both
attorneys asked the court not to impose any deadline.

5. This pretrial order was also in place in advance of the scheduled
November 2021 trial date, and Danny was—at least temporarily—
out of compliance with that order when he failed to hand over his
2020 tax return within twenty-eight days of the November trial
date. He explained, however, that he was unable to generate the
tax return because of software issues, and on that basis the court
continued the November trial date, rescheduling the trial for
March 2022. This continuance had the effect of curing Danny’s
temporary noncompliance with the court’s pretrial order; as
noted, Danny fully complied with it as it relates to the March 2022
rescheduled trial date.

6. At trial, Amy’s attorney represented to the court that Danny’s
disclosure of the 2020 tax return had been “[n]ot timely.” As
discussed below, we generously interpret this as an allusion to
Danny’s obligation to timely supplement his rule 26 disclosures.
See Utah R. Civ. P. 26(d)(5). To the extent that this comment
represented an assertion that Danny’s disclosure violated a court
order, that assertion was inaccurate. Indeed, on appeal, Amy
concedes that Danny produced his 2020 tax return to her “twentynine (29) days before trial.”


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¶31 Danny’s sin, as perceived by the district court, was not the
violation of any specific court order. Instead, the court was
apparently upset with Danny for waiting some two months after
the belated completion of his 2020 tax return to provide a copy of
that return to Amy. This action was arguably a violation of rule
26(d)(5), which commands parties to “timely” supplement their
initial disclosures. See Utah R. Civ. P. 26(d)(5). 7 Courts certainly
have authority to punish untimely supplementations. But such
punishment must be imposed pursuant to rule 26(d) and not—in
the absence of a violation of a court order—pursuant to rule 37(b).

¶32 Under rule 26(d), the court could have penalized Danny for
his two-month disclosure delay, but any such penalty should
have been limited to preventing Danny from “us[ing]” the 2020
tax return “at any hearing or trial.” See 

 R. 26(d)(4). Even if we


7. Conduct similar to Danny’s might, under some circumstances,
also be a violation of rule 26.1(f), which provides that a party’s
“[f]ailure to disclose all assets and income in the Financial
Declaration and attachments” in a domestic relations action “may
subject the non-disclosing party to sanctions under Rule 37.” See
Utah R. Civ. P. 26.1(f). Indeed, Amy invites us to affirm the court’s
sanctions order on this basis. We decline this invitation because,
in our view, this alternative ground for affirmance is not apparent
on the record. See Pentalon Constr., Inc. v. Rymark Props., LLC, 

, 

 (“We will not affirm a judgment if
the alternate ground or theory is not apparent on the record.”
(quotation simplified)). As an initial matter, this argument is
unpreserved; at trial, there was no discussion of rule 26.1 from any
party or from the court, and there is no indication in the record
that the court intended to base its sanction on rule 26.1(f).
Moreover, it is far from apparent to us that the language of rule
26.1(f) authorizes rule 37 sanctions in the absence of a court order;
certainly, Amy has not persuaded us that this is the case,
especially given the plain language of rule 37(b) and our case law.
See, e.g., Eskamani v. Auto-Owners Ins. Co., 

,

.


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                          Bailey v. Bailey


were to assume, for purposes of the discussion, that under rule
26(d) the court properly barred Danny from introducing that
document on his own account, we are aware of no rule or
authority that would allow the court to bar him from introducing
other properly disclosed evidence about his income, or from
attempting to rebut evidence about his income that Amy
introduced at trial. In this vein, we note that, during her
evidentiary presentation at trial, Amy introduced Danny’s 2020
tax return into evidence; Danny should not have been barred from
engaging with that evidence once Amy voluntarily elected to
introduce it. Thus, under the circumstances, the district court’s
sanctions order was improper and unduly punitive.

¶33 And in this situation, the court’s improper sanctions order
prejudiced Danny. Prejudice is demonstrated when a party shows
that the court’s error “impacted the outcome of the dispute.” In re
Western Ins. Co., 

, 

. In other words, a
party is prejudiced if “there is a reasonable likelihood that, absent
the error, the result would have been different.” 

 (quotation
simplified). Danny asserts that his income is actually less than half
of what the court found it to be after the one-sided evidentiary
presentation, and he argues that, had he been able to present
evidence as to his income, the court would not have made the
same determination in that regard. Danny asserts that, if he had
not been sanctioned, he would have presented (among other
things) his earlier tax returns and evidence regarding his
“necessary business expenses,” and would have been able to
demonstrate that certain income had been improperly attributed
to him. Danny plausibly contends that this would have likely
made a difference, and here on appeal, Amy makes no argument
to the contrary. And it appears that the district court more or less
agreed with this notion, at one point stating that the sanctions
imposed were “almost the equivalent of a default.”

¶34 In sum, then, the court entered an improper and unduly
punitive sanctions order against Danny. That order prejudiced
Danny because it prevented him from meaningfully engaging



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                          Bailey v. Bailey


with the court and with Amy on the subject of his own income;
absent the sanctions order, we think the court likely would have
reached a different conclusion regarding Danny’s income.
Accordingly, we vacate not only the court’s sanctions order but
also its modification order (the order containing its findings
regarding Danny’s income), and we remand this case to the
district court for a new trial on Amy’s petition to modify.

¶35 Our opinion could end here. But we elect to address one of
Danny’s other criticisms of the court’s handling of Amy’s petition
to modify, in the hope that our guidance on this issue might prove
useful on remand. See State v. Ogden, 

, 

 (“Although it is unnecessary to our decision, we retain the
authority to reach issues when we believe our analysis could
prove helpful on remand.”); see also Young H2ORE LLC v. J&M
Transmission LLC, 

, 

 (electing to
“offer some guidance that we hope will prove useful” on remand
where the issues in question “are certain to arise again”).

¶36 Danny asserts that the court acted improperly when it
allowed Accountant to testify at trial as a “factual witness.” 8 We
agree with Danny that Accountant’s testimony was improper.

¶37 After Amy made a late designation of expert witnesses
(which the court eventually authorized Amy to do), Danny asked
for a report from those witnesses, including Accountant, in lieu of
taking their depositions. But despite certain initial incorrect




8. Danny also complains that Amy never submitted initial
disclosures, and that—despite a court order—she did not produce
any documentation about a second source of income (rental
properties). As near as we can tell from the record, Danny’s
complaints are accurate. We see no need for further discussion of
them here, however; Danny remains free to seek relief from the
district court regarding these issues on remand.


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                           Bailey v. Bailey


representations from Amy’s attorney to the contrary, Amy never
provided Danny with any report from Accountant.

¶38 Expert witnesses from whom reports have been requested
should not be allowed—absent a showing of good cause or
harmlessness—to testify about matters not “fairly disclosed in”
the requested reports. See Utah R. Civ. P. 26(a)(4)(B) (stating that
expert witnesses “may not testify in a party’s case-in-chief
concerning any matter not fairly disclosed in the report”); 

 R.
26(d)(4); see also R.O.A. Gen., Inc. v. Chung Ji Dai, 

, 

 (stating that, “where it is undisputed that an
expert witness report has been untimely filed, the proper inquiry
is whether” the party’s failure to timely submit the report was
“harmless” or excused by “good cause” (quotation simplified)),
cert. denied, 

 (Utah 2014). It follows, then, that an
expert from whom a report has been requested but who has not
provided one should not be allowed to testify at all, absent a
finding of good cause or harmlessness, since nothing was “fairly
disclosed” in any report. See Utah R. Civ. P. 26(a)(4)(B).

¶39 In this case, the district court allowed Accountant to testify,
despite the fact that Accountant never provided an expert report
to Danny. The court allowed this, at Amy’s request, on the ground
that Accountant would not be asked to offer any expert opinion
as to Danny’s income but, instead, would merely be “a factual
witness” who would offer testimony about “what a line means on
a tax return.” But the court never engaged in any analysis of
whether Amy’s failure to provide an expert report from
Accountant should be excused for “good cause.” See 

 R.
26(d)(4). While Danny’s two-month delay in supplementing his
initial disclosures with his 2020 tax return may have provided
some cause for Accountant’s inability to timely form opinions
regarding Danny’s post-2019 income, neither Amy nor the court
ever offered an explanation as to why Danny’s delay in disclosing
his 2020 tax return provided any cause for Accountant’s failure to
provide a report containing opinions about what line items on a
tax return mean.



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                          Bailey v. Bailey


¶40 And we are not persuaded by Amy’s effort to characterize
this kind of testimony as “fact testimony.” As an initial matter,
even fact witnesses have to be disclosed in a timely manner, and—
although Amy did obtain permission to make a late expert
designation of Accountant—Amy did not disclose Accountant as
a fact witness in a timely manner. Any such disclosure should
have been made in Amy’s initial disclosures, in order to give
Danny the opportunity to depose (or seek other discovery from)
the witness. It is not proper, absent specific leave of court, for a
party to disclose a fact witness for the first time in connection
with its final pretrial disclosures. After all, witnesses and
exhibits disclosed in final pretrial disclosures are intended to be
merely a subset of the witnesses and exhibits already disclosed
earlier in the case. See Ader v. SimonMed Imaging Inc., No. CV-17-
02085, 

, at *2 (D. Ariz. Sept. 22, 2020) (stating
that, “[t]ogether, initial and supplemental disclosures reveal the
full universe of potentially relevant evidence for every claim or
defense,” and that in preparation for making final pretrial
disclosures, the parties must then “sift through” that earlierdisclosed evidence to arrive at a “narrowed universe” of evidence
“aimed at trial preparation”). Allowing a party to use its pretrial
disclosures to introduce new evidence and new witnesses would
therefore be contrary to the very purposes of rule 26. See Johansen
v. Johansen, 

, 

 (stating that
where a party’s pretrial disclosures, submitted only “28 days
before trial,” identified for the first time the witnesses that the
party intended to rely on at trial, that disclosure was contrary to
“the purpose of rule 26, which is to preclude parties from trying
to gain an advantage by offering ‘surprise’ testimony at trial that
has not been properly disclosed” (quotation simplified)); see also
In re Morrissey, No. AP 20-2045, 

, at *5 (Bankr. D.
Utah Mar. 4, 2022) (noting that if a party “were permitted to treat
the [pretrial disclosure] deadline as though it were the [initial
disclosure] deadline, it would completely undermine the
purposes of” the rule governing initial disclosures).




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                          Bailey v. Bailey


¶41 But more to the point, the testimony that Accountant
ended up giving at trial was not fact testimony; it was expert
testimony. A “fact witness” is someone “who has firsthand
knowledge of something based on the witness’s perceptions
through one [or] more of the five senses.” Fact Witness, Black’s
Law Dictionary (11th ed. 2019). “Lay fact testimony”—which is
the type of testimony that the district court and Amy assert that
Accountant provided—is “factual testimony not based on
scientific, technical, or other specialized knowledge.” State v.
Rothlisberger, 

, 

; see also Warenski v.
Advanced RV Supply, 

, 

 (stating
that testimony that is “clearly based on scientific, technical, or
other specialized knowledge” should be considered as “expert
testimony rather than fact testimony” (quotation simplified)), cert
denied, 

 (Utah 2011). A fact witness is thus only
allowed to “testify in the form of fact or opinion” if the testimony
“is helpful to the finder of fact” and is within the witness’s
“personal knowledge or perception.” State v. Sellers, 

, 

; see also Utah R. Evid. 701.

¶42 Here, Accountant had no firsthand knowledge concerning
the family in general or about Danny’s income in particular, yet
he was presented with various financial exhibits, including
Danny’s tax returns, and was allowed to offer testimony about
them. Amy’s attorney then questioned Accountant about certain
line items in those documents. At one point, for instance,
Accountant explained how a wage on a W-2 form was neither for
Danny nor was it “a qualified deduction” from Danny’s company,
because “the income from [Danny’s] business” would be different
from the amount represented in the form which “specifically
calculates adjusted income for [that] specific tax deduction.” We
have no difficulty concluding that this sort of testimony was
expert testimony, not fact testimony, because it was based not on
Accountant’s own personal observations but, instead, on his
“technical” and “specialized knowledge.” See Utah R. Evid. 701.




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                         Bailey v. Bailey


¶43 Accountant should not have been allowed to provide this
sort of testimony under these circumstances. Despite the court’s
stated intention not to “apply the [discovery] rules unevenly,” in
our view that is exactly what happened here. The court imposed
an inappropriately severe sanction on Danny, while at the same
time allowing Amy to offer undisclosed expert testimony. We
trust that, on remand, these errors will be corrected.


                         CONCLUSION

¶44 Because Danny did not violate any discovery or disclosure
order, the court’s effort to sanction him pursuant to rule 37 was
improper. In addition, the court erred by allowing Accountant to
offer expert testimony without having provided a requested
expert report. We therefore reverse the imposition of sanctions on
Danny, vacate the court’s order modifying the Decree, and
remand the matter to the district court for a new trial.




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