Not Following Rule 26.1 Initial Disclosure Rules may bar witnesses and evidence from trial.

November 30, 2021

Johansen v. Johansen, 2021 UT App 130 (November 26, 2021).

In this termination of alimony case, (Ex) Husband sought to terminate alimony because (Ex) Wife was allegedly cohabitating with Boyfriend. After Husband filed his case, Wife filed an answer denying cohabitation. Husband failed to disclose his witnesses, materials, documents or evidence until the time of trial. Rule 26.1 however, requires the petitioning party (Husband in this case) to disclose witnesses, materials, documents or evidence within 14 days of the filing of an answer. Wife at trial asked for a dismissal of the case because no evidence or witnesses had been disclosed. Husband and the trial court found the non-disclosure “harmless” or not required for “solely impeachment purposes.” Wife objected. The court overruled the objection and allowed Husband to proceed. The Husband called Wife as witness in his case in chief, and then called himself, the parties’ daughter, and a private investigator to testify along with documents and photos, which was allowed under the Court’s “harmless” or not required for “solely impeachment purposes” theory. After the conclusion of the testimony and evidence, the court terminated alimony retroactively for cohabitation and entered judgment for the overpayment of alimony to Wife by Husband.

The court of appeals reversed finding that the failure to disclose the witnesses and evidence was a violation of Rule 26.1 and therefore Husband had no timely disclosed witnesses or evidence to use in his case-in-chief, and the case should have been dismissed. The court of appeals concluded:

“The district court erred in allowing [Husband]to call his witnesses and present his documents at trial. [Wife] was harmed by not being informed in the required initial disclosures that she would be called as a witness by [Husband] in his case-in-chief, and the court misapplied rule 26 of the Utah Rules of Civil Procedure in allowing [Husband]’s remaining witnesses to testify under the “solely for impeachment” exception because they were witnesses used in [Husband]’s case-in-chief. The court also erred in allowing [Husband] to present any of his documents and tangible things under the inapplicable impeachment exception. We therefore vacate the judgment against [Wife] and remand with instructions to dismiss [Husband’s] petition to terminate alimony.”

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