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Category: Child Care/Surrogate Care

House Bill 193 (HB0198 (utah.gov))

Another bill under consideration during the 2024 Utah legislative session is House Bill 193 (HB0198 (utah.gov)).

This bill would, if passed into law, 1) make clear that a “totality of circumstances” analysis applies when  a juvenile court determines whether to terminate parental rights; 2) provide that the existence of a placement option that does not require the termination of parental rights does not preclude a finding, based on the totality of the circumstances, that termination of parental rights is strictly necessary to promote the child’s best interest; and 3) as applicable, require the juvenile court to include the considerations described in Utah Code Sections 80-4-303 and 80-4-304 when determining the best interest of the child.

While Utah caselaw already made clear that a “totality of circumstances” analysis applies when a juvenile court determines whether to terminate parental rights. And the Utah Code already requires a juvenile court to include in its determinations in Sections 80-4-303 and 80-4-304 when determining the best interest of the child, it does not appear to me that making this clear in the statute itself is a bad thing.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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H.B. 194

Another potential law up for consideration in the 2024 Utah legislative session is H.B. 194. This bill would, if passed, amend provisions relating to adoption and child placement by amending the definition of “relative” for purposes of child placement to include second cousins. Up to this point, the law does not recognize a second cousin as a relative qualified to have a child placed with for adoptions or following the termination of a child’s parent’s or parents’ parental rights . H.B. 194 would make second cousins qualified relatives. I’m not sure there was any pressing need for such a law, but expanding the pool of relatives qualified to adopt or to care for a child who, for one reason or another, cannot live with one or both of its parents to include second cousins doesn’t strike me as a terrible idea.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Family Law Legislation for the 2024 Utah State Legislative Session

Here is a list of the current proposed family law legislation for the 2024 Utah State Legislative session, along with a (very) brief description of the proposed legislation. If you want to read the complete bill, I have provided the links each of them.

Next month, I will provide my comments and those of others who have expressed their opinions on whether and why these bills should or should not be passed into law.

House Bills

House Bill 20

Title:  Parental Rights Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0020.pdf

Purpose: This bill: clarifies the requirements and procedure for an individual to consent to the termination of parental rights or voluntarily relinquish parental rights.

House Bill 81

Title: Domestic Violence Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0081.pdf

Purpose: This bill adds the crime of propelling a bodily substance or material to the list of crimes that qualify as a domestic violence offense in certain circumstances; and makes technical and conforming changes.

House Bill 110

Title:  Sex and Kidnap Offender Registry Amendments

https://le.utah.gov/~2024/bills/static/HB0110.html

Purpose: This bill changes references from the Department of Corrections to the Department of Public Safety; clarifies the purpose of the Department of Public Safety keeping certain information for individuals on the Sex and Kidnap Offender Registry; and clarifies the requirements the Bureau of Criminal Identification and the Department of Corrections must check for when an individual petitions to be removed from the registry.

House Bill  129

Title:  Child Support Requirements

Purpose: This bill provides that a parent or other obligated individual is not responsible for child support for a child who is in the custody of the Division of Child and Family Services; and makes technical and conforming changes.

House Bill  131

Title:  Clergy Child Abuse Reporting Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0131.pdf

Purpose:  This bill clarifies that a member of the clergy may report suspected child abuse or neglect in certain circumstances; and makes technical corrections.

House Bill  134

Title:  Marriage Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0134.pdf

Purpose: This bill addresses the validation and recognition of a marriage regardless of the race, ethnicity, or national original of the parties to the marriage; repeals a provision on interracial marriage; and makes technical and conforming changes

House Bill  140

Title:  Parental Notification Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0140.pdf

Purpose: This bill amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual access to the parent’s child, and the individual has been convicted of certain crimes; amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and makes technical and conforming changes.

House Bill  157

Title:  Child Custody Factors Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0157.pdf

Purpose: This bill provides that a parent’s approval or disapproval, in itself, of a child’s gender identity, is not a factor to be considered: in a Division of Child and Family Services determination regarding removal of a child from parental custody; and when determining child custody as part of a divorce or other family law proceeding.

House Bill  194

Title:  Child Placement Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0194.pdf

Purpose: This bill amends the definition of “relative” for purposes of child placement, including adoption; and addresses when a court holds a hearing concerning a contested adoption.

House Bill  198

Title:  Child Welfare Placement Review Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0198.pdf

Purpose: This bill addresses the analysis a juvenile court undertakes when evaluating whether to terminate parental rights; and makes technical and conforming changes.

House Bill  199

Title: Child Welfare Revisions

https://le.utah.gov/~2024/bills/hbillint/HB0199.pdf

Purpose: This bill amends definitions related to child welfare in the Utah Juvenile Code

House Bill  200

Title:  Order for Life Sustaining Treatment

https://le.utah.gov/~2024/bills/hbillint/HB0200.pdf

Purpose: This bill modifies professional conduct standards for physicians, advance practice registered nurses, and physician assistants to include obtaining a parent or guardian signature when completing an order for life sustaining treatment for a minor; and makes technical and conforming changes.

House Bill  219

Title:  Divorce Imputed Income Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0219.pdf

Purpose: This bill provides standards for imputing income to a spouse who will be receiving alimony payments from another spouse; provides potential limitations on imputation of income for alimony purposes in some circumstances where the recipient spouse has no recent full-time work history or has been diagnosed with a disability; excludes situations where the recipient spouse has been determined to be at fault; and makes technical and conforming changes.

House Bill  220

Title:  Divorce Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0220.pdf

Purpose: This bill adds factors to be considered when determining the standard of living that existed during a marriage; requires a specific look-back period for information provided to demonstrate the financial conditions and needs of a spouse seeking to be awarded alimony; places restrictions on when a court can reduce a showing of need related to alimony; provides alternative means for demonstrating income and the standard of living during a marriage; and  modifies provisions related to when a court may elect to equalize income between parties by means of an alimony award.

House Bill  234

Title:  Birth Certificate Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0234.pdf

Purpose: This bill requires an individual when petitioning the court for a name or sex designation change on the birth certificate to indicate on the petition whether the individual is registered with the Sex and Kidnap Offender Registry; and authorizes the court to obtain additional information from an individual that is registered with the Sex and Kidnap Offender Registry to determine whether to grant a name or sex designation change petition.

House Bill  272

Title:  Child Custody Proceedings Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0272.pdf

Purpose: This bill defines terms; in certain proceedings involving child custody: specifies requirements for the admission of expert evidence; and  requires a court to consider evidence relating to domestic violence or abuse by a parent; imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child; requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;  requires that certain protective order proceedings comply with specific standards; and makes technical and conforming changes.

SENATE BILLS

Senate Bill 70

Title:  Judiciary Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0070.pdf

Purpose: This bill increases the number of district court judges in the Third Judicial District, Fourth Judicial District, and Fifth Judicial District; increases the number of juvenile court judges in the Third Judicial District and the 15 Fourth Judicial District; and makes technical and conforming changes.

Senate Bill 88

Title:  Juvenile Justice Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0088.pdf

Purpose: This bill defines terms; clarifies requirements regarding the collection of a DNA specimen from a minor adjudicated by the juvenile court; provides that a minor may not be placed in a correctional facility as an alternative to detention; provides a time period in which an agency is required to send an affidavit to an individual who is the subject of an expungement order by the juvenile court; and makes technical and conforming changes.

Senate Bill 95

Title:  Domestic Relations Recodification

https://le.utah.gov/~2024/bills/sbillint/SB0095.pdf

Purpose: This bill recodifies Title 30, Husband and Wife, to Title 81, Utah Domestic Relations Code; recodifies Title 78B, Chapter 12, Utah Child Support Act, to Title 81, Chapter 6, Child Support; defines terms; clarifies provisions related to a claim of a creditor when the joint debtors divorce or are living separately under an order of separate maintenance; clarifies the validation of a marriage to an individual subject to chronic epileptic fits who had not been sterilized; clarifies the validation of an interracial marriage; clarifies the validation of a marriage to an individual with acquired immune deficiency syndrome or other sexually transmitted disease; clarifies provisions regarding the rights and obligations during a marriage; clarifies provisions regarding the dissolution of a marriage, including: an order for separate maintenance; an annulment; and a divorce; clarifies provisions regarding child support, including: the requirements for a child support order; the general requirements for calculating child support; and the requirements for calculating child support for a sole physical custody case, a joint physical custody case, and a split physical custody case; clarifies provisions regarding custody, parent-time, and visitation; repeals statutes related to domestic relations, including a statute on the appointment of counsel for a child; and makes technical and conforming changes.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What Must the Juvenile Court Consider on a Petition to Terminate a Parent’s Parental Rights?

Before terminating a parent’s rights, the court must find that termination is “strictly necessary to promote the child’s best interest.” This analysis must be undertaken from the child’s point of view. Utah law provides that termination is strictly necessary only when, after exploring possible placements for the child, the juvenile court concludes that no other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. If the child can be equally protected and benefited by an option other than termination (such as permanent custody and guardianship awarded to someone other than the parent or parents), termination is thus not strictly necessary. The strictly necessary analysis is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest. If a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference by an appellate court. Long-term guardianship arrangements are typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship in which they are both willing to work together to preserve the parent-child relationship and where the child has a healthy relationship with both the guardian and the parent. Thus, when a parent and potential guardian have little to no relationship, the particular circumstances of the case may indicate that permanent custody and guardianship will not meet the children’s needs as well as termination of parental rights. This post is a summary of the law as stated in the recent Utah Court of Appeals opinion in the case of  In re K.R. – 2023 UT App 75 (filed July 13, 2023).

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How easy is it to change your child’s last name?

I cannot answer this question as it applies in all jurisdictions, but I can answer the question as it applies in the jurisdiction where I practice divorce and family law (Utah): 

Here are the applicable Utah Code sections: 

42-1-1. By petition to district court — Contents. 

Any natural person, desiring to change his name, may file a petition therefor in the district court of the county where he resides, setting forth: 

(1) The cause for which the change of name is sought. 

(2) The name proposed. 

(3) That he has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 

42-1-2. Notice of hearing — Order of change. 

The court shall order what, if any, notice shall be given of the hearing, and after the giving of such notice, if any, may order the change of name as requested, upon proof in open court of the allegations of the petition and that there exists proper cause for granting the same. 

42-1-3. Effect of proceedings. 

Such proceedings shall in no manner affect any legal action or proceeding then pending, or any right, title or interest whatsoever. 

That seems fairly easy, right? I agree, it does seem easy (it deceptively seems easy), and if all you needed to do was go by what the Utah Code says is required of you to get a name change, you’d be right. But for reasons I do not understand, there are many “unwritten rules” governing a name change in Utah, whether for an adult or a minor child. Otherwise stated, if all you did was: 

  • file a petition in the court stating: 
    • the cause for which the change of name is sought; 
    • the name proposed; 
    • that you or your minor child have/has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 
  • schedule the hearing on the petition; 
    • prove three allegations that you were required to make in the petition; 
    • prove that there exists “proper cause” (whatever that means) for granting the petition for change of name; 

that should be all you need to do, according to the Utah Code. But if that is all you did, there is a good chance your petition would be denied. So what are the “unwritten rules” you need to abide by to get a name change for yourself or your minor child? A good place to find out is here: 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/How-easy-is-it-to-change-your-child-s-last-name/answer/Eric-Johnson-311  

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Why do kids talk and text online so freely with strangers?

Why do kids talk and text online so freely with strangers? Don’t they understand how potentially dangerous that is?

Why? Because kids that age aren’t very smart or wise. Don’t you remember how stupid and foolish you were as a pre-teen and teen? I don’t like to remember for myself, but I do. For some of us, it’s a wonder we’re still alive and didn’t do a stretch in juvie or worse for some of the stupid (though innocently committed) acts in which we engaged at that age.  

Kids need parental supervision. No matter “mature” or “intelligent” or “independent” you believe your minor children are, they are capable of exercising incredibly bad judgment and doing incredibly foolish, dangerous, and irresponsible things. Often without meaning to or without believing the risks are as great as they are. Those of us who survived to adulthood without bearing serious and lasting physical or mental scars are those who had good parents. Yes, some kids don’t have what is today the “luxury” of a mom and a dad to guide and shape them, but the ones who thrive are the ones who were blessed with good role models and mentors who took an interest in them and in their well-being and success.  

Utah Family Law, LC | divorceutah.com | 801-466-9277  

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What if a parent sued their child for all the money they spent raising them?

What would happen if a parent were to sue a child for every single penny they spent on raising such a child and the judge were to rule in the parent’s favor? 

You’d likely have an incompetent and/or biased judge. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-would-happen-if-a-parent-were-to-sue-a-child-for-every-single-penny-they-spent-on-raising-such-a-child-and-the-judge-were-to-rule-in-the-parents-favor/answer/Eric-Johnson-311  

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T.W. v. S.A. – 2021 UT App 132 – child custody

2021 UT App 132 

THE UTAH COURT OF APPEALS 

T.W.,
Appellant,
v.
S.A.,
Appellee. 

Opinion 

No. 20200397-CA 

Filed November 26, 2021 

Third District Court, West Jordan Department 

The Honorable Dianna Gibson 

No. 134401457 

David Pedrazas, Attorney for Appellant
Laja K. M. Thompson, Attorney for Appellee 

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGE DAVID N. MORTENSEN and SENIOR JUDGE KATE APPLEBY concurred. [22]  

HAGEN, Judge: 

¶1 T. W. (Father) appeals the district court’s custody order awarding S. A. (Mother) primary physical custody of their son (Child). In so doing, the court rejected the custody evaluator’s recommendation that Father be awarded primary physical custody. The court also scheduled parent-time in accordance with the minimum parent-time schedule in Utah Code section 30-3-35, as opposed to the optional increased parent-time schedule in section 30-3-35.1. Father argues each of these rulings was made in error. Because the court sufficiently supported the parent-time schedule it ordered as well as its rejection of the custody evaluator’s recommendation, we affirm. 

BACKGROUND [23]  

¶2 Father and Mother ended their relationship before Child’s birth. The following year, Father petitioned for custody. Father later moved to Grantsville, Utah to live with his now-wife and her children, along with Father’s other child from a prior relationship. Grantsville is approximately fifty miles from Sandy, Utah where Mother resides. 

¶3 Shortly after his move, Father requested a custody evaluation. The court-appointed custody evaluator initially recommended Mother be awarded primary physical custody, but at a trial on that issue, the parties stipulated to joint legal and physical custody, with each parent enjoying alternating weeks of equal parent-time. The stipulated terms were then set forth by the court in its parentage decree. At the time, the logistics of complying with an alternating week schedule were relatively easy because Child was not yet attending school. 

¶4 Around the time Child was to begin kindergarten, a dispute arose over whether Child would attend school near Mother’s home in Sandy or near Father’s home in Grantsville. Father moved for a temporary restraining order that would specify where Child would attend school. After a telephonic hearing, the court commissioner recommended that, for the time being, Child would attend school in Sandy pending an evidentiary hearing. 

¶5 Child had been attending school for several months when the evidentiary hearing was held in December. After conferring with counsel off the record, the court expressed “some concerns about the workability of [Child] residing in Grantsville and going to school in Sandy or residing in Sandy and going to . . . school in Grantsville.” The court reasoned that the alternating week schedule was unworkable, and the parties agreed that now that Child was in school “continuing the commute [was] not in [his] best interest.” The court ultimately found that “the commute from Sandy to Grantsville is approximately 50 miles and can take approximately 50 minutes, and sometimes more, in the morning” and, “[f]or various reasons, including road/weather conditions, [Child had] been late to or missed school.” Because the long commute was unworkable, the court recognized that the issue before it was “a much larger issue than just determining where [Child] goes to school”—it would require “a change in the parent-time arrangement” as well. To resolve both the parent-time arrangement and where Child would attend school in the future, the court set the matter for trial. 

¶6 Before trial, the custody evaluator submitted an updated report. The evaluator recommended that Father and Mother be awarded joint legal custody but that Child’s primary physical residence be with Father. The evaluator made this recommendation based on two considerations. First, he opined that Father was “in a more stable physical situation” than Mother because he owned his house and was “not likely to move,” whereas Mother “rent[ed] an apartment and ha[d] a history that raise[d] concern about her ability to maintain a consistent residence.” Second, he noted that Child had developed “positive and reciprocal relationship[s] with his [half-sibling and step-]siblings,” who resided with Father, and Child would “attend school with them as well as receive guidance and support from them academically, socially and emotionally.” 

¶7 During trial, Father introduced a letter from Child’s therapist explaining that Child had been diagnosed with an adjustment disorder caused by “a stressor in [his] life.” That letter further stated that Child was experiencing “significant impairment in social, occupational or other areas of functioning.” 

¶8 Mother testified about Child’s emotional and social challenges as well. She explained that Child’s school counselor had been helping him to make and keep friends and to learn “what’s acceptable social behavior” and “how to control [his] emotions in school.” Mother testified that although Child was “struggling with focus and attention in school” as well as “emotional outbursts,” he had “improved.” She recounted that Child “struggled with making friends in the beginning,” but was “finally making more” and by that time had friends at the school. Because Child “knows the school now” and “knows the people,” Mother did not “feel that [it would be] right” to “rip [him] away from [the progress he had made] and have him start all over in a new school.” Given that Child was “in therapy for adjustment disorder,” she believed that “[h]aving him switch schools would just exacerbate that [condition]. He again would have to adjust to a huge change in his life.” 

¶9 Mother also testified about her work schedule. She described how she had started her own business so her schedule would be “flexible” for Child, that she “make[s her] own schedule,” and that the reason she did this was “to be available to [Child] and his school needs and his extracurricular needs . . . so that [she could] revolve [her] work around [her] son.” Mother testified that she and Child have a regular daily routine with a set schedule for school, homework, extracurricular activities, playtime, and sleep when Child is residing at her home in Sandy. Mother asserted that requiring Child to commute to school from Grantsville “probably has at least something to do with [Child’s] activity in school,” that “he hates [the commute],” and that he is sometimes late to school because of “the weather” or “accidents on the freeways.” 

¶10 After considering the original evaluation, the updated evaluation, and the other evidence presented at trial, the court issued its custody order. It found that because of Child’s “current emotional and behavioral issues which [had] been diagnosed as an Adjustment Disorder with disturbance of conduct,” his “psychological and emotional” needs were the deciding factor and those needs would benefit from residing primarily with one parent. In support, the court found that Child “struggles in social settings” and has “behavioral issues,” “emotional outbursts,” and “difficulty making friends.” Moreover, “the commute is hard on [Child]” as he was “tired in school,” had “been late on several occasions,” and had even “missed school” because of the long commute. 

¶11 Having decided that it was in Child’s best interest to reside primarily with one parent, the court ruled that it was in Child’s best interest for Mother to be the primary custodial parent because Mother’s testimony was “credible and persuasive” regarding the negative impact a change in school would have on Child. The court found changing schools would require Child to “start all over—start at a new school, make new friends and re-adjust,” negatively affecting the progress he had made establishing friends. Moreover, Mother had the ability to provide the “maximum amount of parent-time with the maximum amount of flexibility,” and Mother had “established routines in the morning, evening, and with regard to homework and playtime.” 

¶12 In keeping with its custody determination, the court also ruled that, “solely” because of “the 100-mile round-trip commute,” the parent-time schedule of “every other week for five days in a row, was not in [Child’s] best interest,” and that the parent-time schedule would be altered in accordance with Utah Code section 30-3-35—Utah’s minimum parent-time schedule. The court ruled that “on alternating weekends, [Father] shall have parent-time from the time [Child’s] school is regularly dismissed on Friday until Sunday at 7 p.m.” Additionally, Father was awarded a mid-week overnight during which Father “pick[s] up [Child] after school, and [Mother] pick[s] up [Child] the next morning.” The court explained, “The new parent-time schedule is in the best interest of [Child]” because “it allows [him] to maximize his time with [Father] while eliminating the constant, back-to-back days of commuting.” 

¶13 After the court filed its custody order, Father filed a motion for new trial as well as a motion to amend the court’s findings. The court denied both motions. Father now appeals. 

ISSUES AND STANDARDS OF REVIEW 

¶14 Father challenges the district court’s custody order on two grounds. First, he alleges the court failed to articulate sufficient reasons for rejecting the custody evaluator’s recommendation to award him primary physical custody and that the court based its custody determination on an erroneous fact. Second, he alleges the court failed to make sufficient findings about why it did not award increased parent-time pursuant to Utah Code section 303-35.1. 

¶15 On appeal, we review the district court’s custody and parent-time determination for abuse of discretion. LeFevre v. Mackelprang, 2019 UT App 42, ¶ 17, 440 P.3d 874. This discretion is broad; indeed, as long as the court exercises it “within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Davis v. Davis, 749 P.2d 647, 648 (Utah 1988) (cleaned up). We review the court’s “underlying factual findings for clear error.” LeFevre, 2019 UT App 42, ¶ 17. “A finding is clearly erroneous only if the finding is without adequate evidentiary support or induced by an erroneous view of the law.” Id. (cleaned up). 

ANALYSIS 

  1. The Rejection of the Evaluator’s Recommendation

¶16 Father first challenges the district court’s decision to award primary physical custody to Mother. When determining custody, the court considers many statutorily defined factors, including “the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s . . . physical needs; . . . emotional needs; . . . [and] any other factor the court finds relevant.” Utah Code Ann. § 30-3-10(2) (LexisNexis 2019).24 But the factors the court considers are “not on equal footing.” See Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “Generally, it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. 

¶17 Although the district court has broad discretion to make custody determinations, it “must set forth written findings of fact and conclusions of law which specify the reasons for its custody decision.” Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996). The findings “must be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 27, 414 P.3d 933 (cleaned up). The district court’s conclusions must demonstrate how the decree “follows logically from, and is supported by, the evidence,” Andrus v. Andrus, 2007 UT App 291, ¶ 17, 169 P.3d 754 (cleaned up), “link[ing] the evidence presented at trial to the child’s best interest and the ability of each parent to meet the child’s needs” whenever “custody is contested,” K.P.S., 2018 UT App 5, ¶ 27. 

¶18 Father contends that the court failed to “articulate sufficient reasons as to why it rejected [the custody evaluator’s] recommendation[]” that Child should primarily reside with Father. “[A] district court is not bound to accept a custody evaluator’s recommendation,” but if it rejects such a “recommendation, the court is expected to articulate some reason for” doing so. R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137. 

¶19 Here, the court sufficiently supported its rejection of the custody evaluator’s recommendation. The custody evaluator recommended that the court award primary physical custody of Child to Father for two reasons: (1) Father was in “a more stable physical situation” and “not likely to move,” and (2) Child had a “positive and reciprocal relationship with his siblings and [would] be able to attend school with them as well as receive guidance and support from them academically, socially and emotionally.” The court found the evaluation “very helpful” but did “not agree with the ultimate recommendation.” 

¶20 The court based its rejection of the custody evaluator’s recommendation on several factors. First, the court disagreed that Mother’s rental apartment was less stable than Father’s living situation because both Mother and Father had relocated multiple times in the last few years and both testified that they intended to stay in their current homes. Second, although the court agreed that keeping the siblings together “would be beneficial” to Child, the court did not “give this factor quite the weight” that the custody evaluator did, because Child had never “lived exclusively with his siblings” and their relationship was not the same as a relationship “between siblings who have been reared together prior to the separation between the parents.” 

¶21 The court also detailed how physical custody with Mother would better serve Child’s “psychological and emotional needs.” It found that Mother had “established routines” with Child “in the morning, evening, and with regard to homework and playtime.” She “lived a one[-]child-centered life” and indeed had “built her life around her son”; whereas, Father’s attention was divided among several children. Mother also enjoyed “flexible” self-employment that allowed her to personally provide care for Child, whereas Father’s work schedule was “less flexible” and would require surrogate care. 

¶22 The court further determined that it was not in Child’s best interest to change schools, which would be required if Father were awarded primary physical custody. The court emphasized the need for “consistency” and “routine” for Child, as he was exhibiting signs of being “under stress,” “struggle[d] in social settings,” and had “behavioral issues,” “emotional outbursts,” and “difficulty making friends.” In light of these factors, the court determined that “making too many changes all at once” would not be in Child’s best interest. Most notably, the court found Mother’s “testimony credible and persuasive regarding the impact a change of school would have on [Child], given his current condition and the Adjustment Disorder diagnosis.” Because Child had made significant progress “adjusting” to his current school and establishing friendships, the court found that requiring Child to “start all over—start at a new school, make new friends and re-adjust”—would “impact the progress” he had made and would not be in his best interest. Consequently, granting Father primary physical custody, which in turn would require Child to transfer to a school in Grantsville, was not in Child’s best interest. 

¶23 Father contends that the court erred because it rejected the custody evaluator’s “recommendation solely based on [an] ‘Adjustment Disorder with disturbance of conduct’ diagnosis” even though “at no[] time was there any testimony as to how [the diagnosis] affected the Child, and/or how it related to the Child’s relationship with each parent.” But the court did not rest its decision solely on the fact that Child had been diagnosed with adjustment disorder. Instead, it considered evidence that the disorder was caused by stress, that it manifested as behavioral and social impairments, and that introducing a change such as transferring schools would exacerbate these problems. Specifically, Father introduced a letter from Child’s therapist explaining that Child had been diagnosed with adjustment disorder caused by “a stressor in [his] life” and that he experienced “significant impairment in social, occupational or other areas of functioning.” Mother also gave extensive testimony regarding Child’s struggles with “focus,” “emotional outbursts,” and “making friends,” and she detailed the improvements he had made in those areas. She further testified that, in light of Child’s adjustment disorder diagnosis, “having him switch schools would just exacerbate that” condition and undo the progress he had made because it would require him to “start all over.” 

¶24 In sum, the evidence presented at trial sufficiently supports the court’s ruling that Child’s best interests, i.e., his “psychological, physical, and emotional” needs, were best met by Mother being awarded primary physical custody, “outweigh[ing] the factors favoring” a custody award in favor of Father. And the court’s careful evaluation of that evidence certainly “articulate[s] some reason” for rejecting the custody evaluator’s recommendation. See R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137. Thus, the court acted within its discretion in rejecting the custody evaluator’s recommendation and awarding Mother primary physical custody. 

  1. The Parent-Time Schedule under Utah Code Section 30-3-35

¶25 Father also contends that the district court erred because it did not adopt the optional increased parent time schedule set forth under Utah Code section 30-3-35.1 without making sufficient findings. We disagree. 

¶26 “[D]istrict courts are generally afforded broad discretion to establish parent-time.” Lay v. Lay, 2018 UT App 137, ¶ 16, 427 P.3d 1221 (cleaned up). When parents do not agree to a parent-time schedule, Utah Code section 30-3-35 prescribes a “default minimum amount” of “parent-time for the noncustodial parent,” unless “‘the court determines that Section 30-3-35.1 should apply’ or a parent can establish ‘that more or less parent-time should be awarded.’” Id. ¶¶ 5–6 (quoting Utah Code Ann. § 303-34(2) (LexisNexis Supp. 2017)); see also Utah Code Ann. § 30-335(2) (LexisNexis Supp. 2021)). Under that default minimum parent-time schedule, the noncustodial parent is entitled to time with the child on “one weekday evening and on alternating weekends, which include Friday and Saturday overnights.” Lay, 2018 UT App 137, ¶ 6. Thus, the noncustodial parent, at minimum, enjoys “two overnights in a typical two-week period.” LeFevre v. Mackelprang, 2019 UT App 42, ¶ 20, 440 P.3d 874. 

¶27 The court “may consider” an “optional parent-time schedule” set forth in Utah Code section 30-3-35.1(1)–(2), (6), which increases parent-time from two overnights to five overnights in every two-week period “by extending weekend overnights by one night, and affording one weeknight overnight each week.” See Id. ¶ 21; see also Utah Code Ann. § 30-3-35.1(6) (LexisNexis 2019). The court may adopt the optional parent-time schedule when either (a) “the parties agree” or (b) “the noncustodial parent can demonstrate the presence of at least four factual circumstances.” LeFevre, 2019 UT App 42, ¶ 22 (cleaned up); see also Utah Code Ann. § 30-3-35.1(2). 

¶28 But even if either of these two prerequisites is satisfied, the district court is not obligated to adopt the increased parent-time schedule.25 Under Utah Code section 30-3-35.1, the court “is authorized, but not required, to consider the optional increased parent-time schedule as described in the statute.” Lay, 2018 UT App 137, ¶ 13. The statute “provides legislatively established standards for the district court to apply in evaluating whether increased parent-time is warranted, and it eliminates the need for a district court to independently fashion an increased parent-time schedule by providing a detailed schedule for the court to modify or adopt.” Id. ¶ 16. But by providing “the district court with some guidance and tools for adopting increased parent-time schedules,” the legislature did not eliminate “the court’s discretion to apply those tools in the best interest of the child.” Id. To the contrary, the statutory language plainly indicates that the adoption of the increased schedule is permissive rather than mandatory. See id. 

29 Nonetheless, Father argues that once the court “considered” section 30-3-35.1, it was obligated to make findings articulating why it rejected the increased parent-time schedule suggested by the statute. In setting the parent-time schedule, the court largely adopted the minimum schedule set forth in section 30-3-35, except that it increased the weekday evening parent-time to a mid-week overnight. As a result, the only difference between the increased parent-time schedule under section 30-3-35.1 and the schedule actually ordered is an additional weekly Sunday overnight. Father contends that “the trial court should have addressed how it was in the best interest for [Child] to be returned home on Sunday as opposed to Monday morning for school.” 

¶30 But Father misunderstands the statutory scheme. When parents cannot agree to a parent-time schedule, section 30-3-35 provides a presumptive minimum, but the district court still retains discretion to award more time than the statute provides. See Utah Code Ann. § 30-3-34(1)–(2) (“[T]he court may . . . establish a parent-time schedule” but “the parent-time schedule as provided in Section[] 30-3-35 . . . shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.”). If the court orders more parent-time than the presumptive minimum, it may “independently fashion an increased parent-time schedule” under section 30-3-35, or it may adopt the “detailed schedule” set forth in section 30-3-35.1. See Lay, 2018 UT App 137, ¶ 16. In any event, in awarding parent-time, the court is simply required to “enter the reasons underlying [its] order.” See Utah Code Ann. § 30-3-34(3). The statute does not require the court to articulate specific reasons for rejecting all other alternatives, such as an additional Sunday overnight that would necessitate another long commute to school every other Monday. 

¶31 In keeping with the statutory requirements, the court entered sufficient findings to support its parent-time award under section 30-3-35. The court ordered that “[Father] shall have parent-time pursuant to the guidelines established in Utah Code Ann. § 30-3-35” and articulated its reasons for customizing that schedule to allow Father an additional mid-week overnight. The court explained that it was 

interested in maximizing [Father’s] time (along with his family) with [Child]. Section 30-3-35 permits a mid-week visit. It is in [Child’s] best interest to have a mid-week visit at [Father’s] home. [Child] will benefit from doing homework with [Father], [his stepmother,] and his siblings. And, because it is only one day a week, the impact of the commute will be minimized. The parties can determine which day works best for them and [Child]. 

The court concluded that “[t]he new parent-time schedule is in the best interest of [Child]—it allows [him] to maximize his time with [Father] while eliminating the constant, back-to-back days of commuting.” These findings adequately support the ordered parent-time schedule. 

CONCLUSION 

¶32 Custody and parent-time determinations “may frequently and of necessity require a choice between good and better.” Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982). The broad discretion we accord the district court “stems from the reality that in some cases the court must choose one custodian from two excellent parents.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). That is precisely the situation the district court faced here. And “where analysis reveals that the best interests of the child would be served equally well with either parent,” we cannot say the “court has abused its discretion in awarding custody to one parent over another.” See id. at 1216. Because the district court sufficiently supported its rejection of the custody evaluator’s recommendation for primary custody and articulated the reasons for the parent-time schedule it adopted, we defer to the court’s sound judgment. Affirmed. 

Click to access T.W.%20v.%20S.A.20211126_20200397_132.pdf

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How can I get an emergency hearing for custody and child support?

I will answer this question based upon the law of the jurisdiction where I practice family law (Utah).

So the question is: How can I get an emergency hearing for custody and child support?

The answer: Have a good reason.

A very good reason. A reason that would justify asking the court to address the issue on an emergency basis.

Do such reasons exist? Yes. Are such good reasons easy to establish? Generally, no, unless one tries to obtain emergency child custody through a protective order proceeding (more on why below).

Is it easy to lie about having good reasons for an emergency child custody order and obtain an emergency child custody order under false pretenses? Yes, especially if one tries to obtain emergency child custody through a protective order proceeding (more on why below).

Here are some ways to obtain an order of child custody (and possibly for child support too) in not particular order (with links to the statutes that govern them):

1. By protective order.

Cohabitant Abuse Act protective order

Child protective order (see also Utah Rules of Juvenile Procedure Rule 37)

2. Divorce or parentage action

motion for TRO (ex parte motion for child custody (and child support))

3. Guardianship action

4. “Custody and Visitation for Individuals Other than Parents Act” action

5. “Utah Uniform Child Custody Jurisdiction and Enforcement Act” action

6. Termination of parental rights action

7. “Abuse, Neglect, and Dependency Proceedings” action

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

 

https://www.quora.com/How-can-I-get-an-emergency-hearing-for-custody-and-child-support/answer/Eric-Johnson-311?prompt_topic_bio=1

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In re A.B. – 2021 UT App 91

THE UTAH COURT OF APPEALS 

STATE OF UTAHIN THE INTEREST OF A.B., A PERSON UNDER EIGHTEEN YEARS OF AGE. 

K.T., 
Appellant, 
v.
S.T. AND T.T., 
Appellees. 

Opinion 

No. 20200342-CA 

Filed August 26, 2021 

Third District Juvenile Court, Salt Lake Department 

The Honorable Julie V. Lund 

No. 1174795 

Steve S. Christensen and Clinton Brimhall, Attorneys 
for Appellant 

Sheleigh A. Harding, Attorney for Appellee 
Martha Pierce, Guardian ad Litem 

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred. 

MORTENSEN, Judge: 

¶1 Each summer for nearly a decade, Annabelle1—with the permission of her mother, K.T. (Mother)—went to visit and stay with welcoming relatives. Eventually, and on agreement, summer turned into a whole year. When the hosting family then sought custody, the juvenile court characterized the situation as “neglect” and granted the request. Mother now appeals, and we reverse. 

BACKGROUND 

¶2 Like many parents returning to work, Mother utilized the assistance of family and friends to help care for Annabelle after giving birth to her in 2008. But as the years went by, Mother’s use of family and friends to help with childcare went beyond mere “babysitting.” As Annabelle grew older, Mother established a pattern of leaving Annabelle with a welcoming relative every summer; often, Annabelle spent the summer at the home of Mother’s aunt, S.T. (Aunt), and uncle, T.T. (Uncle). Finally, in 2018, Mother—who at the time was struggling with parenting Annabelle—agreed to allow Annabelle to spend not just the summer but the entire 2018–2019 school year with Aunt and Uncle in Utah. 

¶3 In the years leading up to Annabelle’s yearlong residence with Aunt and Uncle, Mother and Annabelle had moved to New Mexico. There, Annabelle demonstrated behavioral problems including throwing chairs, hitting, screaming, kicking, “‘thrashing out,’ and expressing rage and hatred toward Mother.” Annabelle even “claimed to want to die,” a sentiment that, purportedly based on the advice of Annabelle’s counselor, Mother thought “was not abnormal” for a person of Annabelle’s age. Eventually, this crisis led Mother to reach out to Aunt and tell her, “I’m depressed, my daughter is depressed. All we do is cry some days.” Not long after, Mother asked Aunt to meet with her and take Annabelle because “[s]he’s out of control, grumpy, [and] thrashing out.” Aunt and Uncle agreed. So, Annabelle’s annual summer migration to Utah started early that year when Mother left Annabelle with Aunt and Uncle in May 2018 and moved to North Carolina with her boyfriend. 

¶4 About Annabelle’s year with Aunt and Uncle, the juvenile court heard conflicting testimony. On the one hand, the juvenile court heard that Mother monitored Annabelle’s progress in school, that Mother purchased clothes for Annabelle even though Aunt and Uncle “never asked [her] for financial support,” that Mother engaged in “several” phone calls with Annabelle over that time period, and that Mother gave Aunt and Uncle specific requests, including that they “put [Annabelle] into counseling.” On the other hand, Mother admitted that she did not visit Annabelle for over six months from October 2018 to May 2019, and the court heard testimony that Mother declined to participate when offered “extra opportunities . . . to contact [Annabelle] on the phone more frequently, extra opportunities to participate with [Annabelle] in activities, and the opportunity to attend an eye doctor appointment.” Aunt and Uncle also testified that Mother provided no financial support for Annabelle’s needs and refused to assist Aunt and Uncle with costs associated with medical co-pays, fixing Annabelle’s eyeglasses, or purchasing school clothes and supplies. Aunt and Uncle claimed that Mother told them, “She’s your responsibility. I don’t need to take care of anything, it’s your responsibility.” Aunt and Uncle further maintained that, at their home, Annabelle transformed from “reserved,” “quiet,” and fearful, to “thriving and happy.” 

¶5 A week before that school year’s end, in May 2019, Mother unexpectedly checked Annabelle out of school, planning to drive her back to North Carolina. Aunt and Uncle “retrieved [Annabelle] by way of an ex parte protective order” and filed a petition requesting custody, which the juvenile court granted temporarily. In addition to the testimony about the time at Aunt and Uncle’s home, the court heard testimony that Mother’s “parenting style lack[ed] affection,” “nurturing,” and “comforting behavior”—for example there was “no hugging”— and that Mother often peppered Annabelle with various insults. Aunt and Uncle also described that during one of Annabelle’s unsupervised visits with Mother, they received an accidental dial from Annabelle and, after answering the call, overheard Mother “yelling at [Annabelle] that she ‘needed to go . . . tell [Aunt and Uncle] that she needed to come home right now’” and to tell Aunt and Uncle to call Annabelle’s guardian ad litem to relay the same message. If she did not, Mother said, “a lot of people [would] get hurt.” Aunt and Uncle terminated this visit, but in their view more generally, Annabelle “was very depressed and sad after visits with” Mother, and only “[a]fter lots of support and kindness from [Aunt and Uncle]” would Annabelle “return to her normal, happy self.” And Mother did testify “that if custody were returned to her, she would cut off all contact between [Annabelle] and [Aunt and Uncle].” 

¶6 Ultimately, the juvenile court determined that although “[M]other loves [Annabelle],” “love alone is not enough for a child,” and that Mother’s conduct “demonstrates a complete disregard for the best interests of [Annabelle] and further demonstrates a pattern of [Mother] consistently placing her own best interests before those of [Annabelle].” Further, the court determined that Mother had “been unwilling or unable to provide [necessary] stability, and ha[d] therefore asked other family members to care for [Annabelle] for protracted lengths of time.” The court made findings and concluded that Mother “neglected” Annabelle and therefore granted Aunt and Uncle permanent custody and guardianship. 

¶7 Specifically, the court entered conclusions of law that: 

[Annabelle] has been neglected by [Mother] in the form of emotional maltreatment, which has caused [Annabelle] to be insecure, afraid and emotionally disturbed. 

[Annabelle] has been neglected by [Mother] by being placed with relatives for extended and regular periods of time without support from [Mother]. 

. . . . 

[Mother] has neglected [Annabelle] in not assisting in paying for her support or providing items for [Annabelle’s] care. . . . 

It is in [Annabelle’s] best interests to be placed in the permanent custody and guardianship of [Aunt and Uncle]. 

¶8 Mother appeals the juvenile court’s neglect determination.  

ISSUE AND STANDARD OF REVIEW 

¶9 Mother raises one issue we address here: whether the juvenile court improperly determined that Mother’s conduct amounted to “neglect.” “We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14. Here, Mother does not dispute the juvenile court’s relevant findings of fact but instead contends that the juvenile court improperly applied the governing law. “This is a mixed determination of law and fact—in which the abstract law is applied to a given set of facts.” Id. ¶ 17. And, 

the standard of review for mixed questions depends on the nature of the issue. Law-like mixed questions are reviewed de novo, while fact-like mixed questions are reviewed deferentially. To determine whether a mixed question should be deemed law-like or fact-like, we evaluate the marginal costs and benefits of conducting either a searching de novo review or a deferential review of a lower tribunal’s resolution of the mixed question. 

De novo review of mixed questions is appropriate where a fresh appellate reconsideration of the issues presents little downside and significant upside. Issues that are law-like are matters that lend themselves to consistent resolution by uniform precedent. Appellate courts are in a preferred position on such issues. They can establish a uniform body of precedent establishing consistent rules that litigants and lower courts can rely on. And a need to establish such rules cuts against a standard of deference to lower courts. 

Id. ¶¶ 18–19 (cleaned up). We distinguish law-like questions from fact-like questions based on 

(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court’s application of the legal rule relies on facts observed by the trial judge, such as a witness’s appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting discretion to trial courts. 

Id. ¶ 21 (cleaned up). 

¶10 As to the first two factors, where Mother does not dispute the relevant facts as found by the juvenile court, the facts before us are set and clear, and, having been entered by the juvenile court, are not dependent on disputed subjective factors observed by the juvenile court. As to the third factor, where the application of a statute to the facts lies in the vein of statutory interpretation—which is reviewed for correctness, see State v. Soules, 2012 UT App 238, ¶ 2, 286 P.3d 25—sound policy dictates that application of statute be reviewed de novo, giving no deference to the juvenile court. We view the question presented here as law-like because it concerns whether the facts as constituted meet the legal standard of the statute. De novo review here presents little downside and allows this court to establish precedent on which future litigants and lower courts can rely. Accordingly, we review the issue presented here giving no deference to the juvenile court. 

ANALYSIS 

¶11 In contending that the juvenile court misapplied the statutory definition of “neglect,” Mother argues that “the juvenile court’s reasons for determining that [Annabelle] is a neglected child do not fall under the neglect statute or relate to that statute” or, at most, “bear only a passing relation.” Upon reviewing the juvenile court’s conclusions of law alongside the relevant statute, we conclude that the juvenile court failed to properly link its findings of fact and conclusions of law to the statute defining “neglect” in these situations. 

¶12 Initially, while we are sensitive to the challenging circumstances Annabelle has experienced in this case, we nevertheless must acknowledge the presumption in the law that generally parents have a right to the custody of their children. See In re C.Z., 2021 UT App 28, ¶ 16, 484 P.3d 431. Speaking about a related area of law, termination of parental rights, our supreme court has said that “[n]o parent could be deprived of his or her parental rights without a prior showing of unfitness, abandonment, or substantial neglect,” and that “[s]o long as a parent’s conduct remain[s] within those broad bounds, the state [is] not empowered to terminate the parent-child relationship.” See In re J.P., 648 P.2d 1364, 1367 (Utah 1982). Our supreme court has further stated, 

It is rooted in the common experience of [humankind], which teaches that parent and child normally share a strong attachment or bond for each other, that a natural parent will normally sacrifice personal interest and welfare for the child’s benefit, and that a natural parent is normally more sympathetic and understanding and better able to win the confidence and love of the child than anyone else. 

The parental presumption is not conclusive, but it cannot be rebutted merely by demonstrating that the opposing party possesses superior qualifications, has established a deeper bond with the child, or is able to provide more desirable circumstances. If the presumption could be rebutted merely by evidence that a nonparent would be a superior custodian, the parent’s natural right to custody could be rendered illusory and with it the child’s natural right to be reared, where possible, by his or her natural parent. 

Hutchison v. Hutchison, 649 P.2d 38, 40–41 (Utah 1982) (cleaned up). We recognize that this is not a termination of parental rights case, and we do not apply the presumption here, but this is all to emphasize the importance of the natural parent-child relationship and clarify that before a juvenile court removes a child from a natural parent based on the presence of “neglect,” that court must find facts that meet the statutory definition of neglect, which definition the legislature has deemed substantial enough to warrant the drastic consequence of removing a child from that child’s natural parent. 

¶13 Utah law provides six bases on which a juvenile court may determine that a situation amounts to “neglect.” Utah Code Ann. § 78A-6-105(40)(a) (LexisNexis Supp. 2020).2 Specifically, 

“Neglect” means action or inaction causing: 

abandonment of a child . . . ; 

lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian; 

failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being; 

a child to be at risk of being neglected or abused because another child in the same home is neglected or abused; 

abandonment of a child through an unregulated custody transfer; or 

educational neglect. 

Id. However, as far as we can tell, the court did not base its ruling on any of these statutory grounds. Instead, the court found that Annabelle had “been neglected by [Mother] in the form of emotional maltreatment,” that Anabelle had “been neglected by [Mother] by being placed with relatives for extended periods of time,” and that “Mother ha[d] neglected [Annabelle] in not assisting in paying for her support or providing items for [Annabelle’s] care.” 

¶14 We do not see the required relation between these explanations—as expressed in the court’s conclusions of law— and the statutory text. As to the conclusion that Annabelle had “been neglected by [Mother] in the form of emotional maltreatment,” Aunt and Uncle concede that “emotional maltreatment is . . . not neglect”; and, indeed, this concession aligns with our own caselaw as provided in K.Y. v. Division of Child & Family Services, 2010 UT App 335, 244 P.3d 399, which clarified that “the statutory definition of neglect cannot be construed to include emotional maltreatment.”3 See id. ¶ 20. 

Similarly, the court’s statements that Annabelle has “been neglected by [Mother] by being placed with relatives for extended periods of time” and that “Mother has neglected [Annabelle] in not assisting in paying for her support or providing items for [Annabelle’s] care” do not clearly fall within the statute’s language. See infra ¶¶ 15–21. 

¶15 After reviewing the actual statutory grounds found in Utah Code section 78A-6-105(40)(a), we come no closer to seeing a connection between the court’s findings and conclusions and the statutory language. Of the statute’s six grounds for neglect, none apply to this case under the facts as found by the juvenile court. 

¶16 First, Annabelle cannot have been subject to “educational neglect,” Utah Code Ann. § 78A-6-105(40)(a)(vi), because “educational neglect” occurs only when a parent “fails to make a good faith effort to ensure that the child receives an appropriate education” after “receiving a notice of [a] compulsory education violation,” id. § 78A-6-105(20). The juvenile court made no findings in this regard. 

¶17 Second, Annabelle cannot have been abandoned through an “unregulated custody transfer,” id. § 78A-6-105(40)(a)(v), because an “[u]nregulated custody transfer” occurs only when the child is left with someone other than statutorily specified family members or an adult friend of the family—and no party challenges whether Aunt and Uncle fit in this category, id. § 78A6-105(64)(a). 

¶18 Third, Annabelle cannot have been “at risk of being neglected . . . because another child in the same home is neglected,” as no other child is identified in the juvenile court’s findings of fact. Id. § 78A-6-105(40)(a)(iv). 

¶19 Fourth, although appearing closer to the mark, Annabelle cannot have been subject to the “failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being.” Id. § 78A-6-105(40)(a)(iii). To be sure, Mother did refuse to pay Aunt and Uncle for various aspects of Annabelle’s care. However, in interpreting a statute, “we look first to the statute’s plain language and presume that the legislature used each word advisedly and read each term according to its ordinary and accepted meaning.” In re J.M.S., 2011 UT 75, ¶ 13, 280 P.3d 410 (cleaned up). And here, the statute’s plain language relates only to a parent’s refusal to provide care—it says nothing about a parent’s refusal to reimburse another caretaker for providing the care. If a non-parent party, retaining custody of a child, contends that a parent should pay for that child’s care, the non-parent party’s remedy is to return the child to the parent’s custody, where the parent would bear the monetary burden of providing for the child’s necessary care. On the facts before us, Mother never refused to provide care but refused only to reimburse Aunt and Uncle for providing that care. Thus, because the statute does not discuss money at all, the fact that Mother refused to repay Aunt and Uncle is neither here nor there for purposes of applying the statute to this situation and does not support a finding of neglect. 

¶20 Fifth, again, although apparently more applicable than other alternatives, Annabelle cannot have been subject to a “lack of proper parental care . . . by reason of the fault or habits of the parent, guardian, or custodian.” Utah Code Ann. § 78A-6-105(40)(a)(ii). While it would be inaccurate and insensitive to suggest that the interactions between Mother and Annabelle approached ideal, the record before us suggests that Annabelle received proper parental care, even if not always at Mother’s hand. And while Aunt and Uncle identify certain facts that they allege suggest a lack of proper parental care, the juvenile court did not rely on these facts in identifying the situation as neglect, and we are skeptical that such facts could have amounted to neglect in any event. 

¶21 Sixth, under the facts as applied by the juvenile court, we cannot determine whether Annabelle faced “abandonment.” Id. § 78A-6-105(40)(a)(i). The juvenile court did not analyze whether a parent who leaves a child temporarily with relatives could be considered to have abandoned the child; indeed, the juvenile court made no findings that it connected to abandonment, and its conclusions of law contain no language that suggests to us that the neglect determination rested on a finding of abandonment under section 78A-6-105(40)(a)(i). In short, the findings of fact and conclusions of law set forth by the juvenile court do not bear a connection to the governing statute sufficient to remove Annabelle from the custody of her natural parent on the basis of “neglect.” 

CONCLUSION 

¶22 In declaring that Mother neglected Annabelle, the juvenile court made insufficient connection between its findings of fact and conclusions of law and the actual statutory grounds governing findings of “neglect.” The facts as found by the juvenile court do not meet the statutory definition of “neglect.” Therefore, we reverse the court’s order of permanent custody and guardianship issued in favor of Aunt and Uncle. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

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Do I pay half of any child care costs my ex incurs? What kinds?

QUESTIONS:

Do I pay half of any child care costs my ex incurs? Or just work-related child care costs incurred?

Are “occupational training”-related child care costs something I have to share too? And does “occupational training” include a bachelor’s degree?

ANSWERS:

You and your ex are required to share equally the costs of:

1) work-related child care; and

2) occupational training-related child care either of you incur,

but neither of you has to pay for half of any child care that the other incurs if the child care is not work-related and occupational training-related.

Utah Code § 78B-12-214.  Child care expenses — Expenses not incurred.

(1) The child support order shall require that each parent share equally the reasonable work-related child care expenses of the parents.

(2)

(a) If an actual expense for child care is incurred, a parent shall begin paying his share on a monthly basis immediately upon presentation of proof of the child care expense, but if the child care expense ceases to be incurred, that parent may suspend making monthly payment of that expense while it is not being incurred, without obtaining a modification of the child support order.

(b)

(i) In the absence of a court order to the contrary, a parent who incurs child care expense shall provide written verification of the cost and identity of a child care provider to the other parent upon initial engagement of a provider and thereafter on the request of the other parent.

(ii) In the absence of a court order to the contrary, the parent shall notify the other parent of any change of child care provider or the monthly expense of child care within 30 calendar days of the date of the change.

(3) In addition to any other sanctions provided by the court, a parent incurring child care expenses may be denied the right to receive credit for the expenses or to recover the other parent’s share of the expenses if the parent incurring the expenses fails to comply with Subsection (2)(b).

Utah Code § 78B-12-215.  Child care costs.

(1) The need to include child care costs in the child support order is presumed, if the custodial parent or the noncustodial parent, during extended parent-time, is working and actually incurring the child care costs.

(2) The need to include child care costs is not presumed, but may be awarded on a case-by-case basis, if the costs are related to the career or occupational training of the custodial parent, or if otherwise ordered by the court in the interest of justice.

(3) The court may impute a monthly obligation for child care costs when it imputes income to a parent who is providing child care for the minor child of both parties so that the parties are not incurring child care costs for the child. Any monthly obligation imputed under this section shall be applied towards any actual child care costs incurred within the same month for the child.

So what does “occupational training” mean? Utah tends to define the term by what it does not mean:

See Mancil v. Smith, 18 P.3d 509, 511 (Utah Ct.App. 2000)

¶ 9 We first address whether the trial court correctly determined that Smith’s pursuit of a bachelor’s degree did not exempt him from having income imputed to him because such a course of higher education does not constitute “career or occupational training to establish basic job skills” under Utah Code Ann. § 78–45–7.5(7)(d)(iii)* (Supp.2000). This is a question of statutory construction, reviewed for correctness. See Wells v. Wells, 871 P.2d 1036, 1038 (Utah Ct.App.), cert. denied, 244 Utah Adv. Rep. 56 (1994).

*Utah Code § 78-45-7.5(d)(iii) no longer exists, but its provisions were incorporated into Utah Code § 78B-12-203(8)(d)(iii):

(d) Income may not be imputed if any of the following conditions exist and the condition is not of a temporary nature:

(i) the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn;

(ii) a parent is physically or mentally unable to earn minimum wage;

(iii) a parent is engaged in career or occupational training to establish basic job skills; or

(iv) unusual emotional or physical needs of a child require the custodial parent’s presence in the home.

Hill v. Hill, 869 P.2d 963, 965 n.1 (Utah Ct.App. 1994)

Mr. Hill also argues that even if he were voluntarily underemployed, it is improper to impute income to him because he is “a parent engaged in career or occupational training to establish basic job skills.” Utah Code Ann. § 78–45–7.5(7)(d)(iii) (1992). The trial court held that Mr. Hill did not fit within this statute because he already had a bachelor’s degree, and was pursuing further education. We find no error in the court’s holding.

Husband is correct that Utah Code section 78B–12–203 precludes a trial court from imputing income to an individual who is “engaged in career or occupational training to establish basic job skills,” Utah Code Ann. § 78B–12–203(7)(d)(iii), Husband is not in need of basic job skills training. In Mancil v. Smith, 2000 UT App 378, 18 P.3d 509, this court held that “the basic job skills training envisioned by the statute is training which can aid a person in achieving an income beyond the minimum wage job which can be had with no training at all, i.e., training for the ‘starting point’ on a ‘consecutive progressive’ career track.” Id. ¶ 15. The policy behind Utah’s alimony laws, “to enable the receiving spouse to maintain as nearly as possible the standard of living enjoyed during the marriage and to prevent the spouse from becoming a public charge,” see Connell v. Connell, 2010 UT App 139, ¶ 9, 233 P.3d 836 (internal quotation marks omitted), is not furthered by permitting the payor spouse to pursue unnecessary continuing education that precludes him from paying alimony. Cf. Mancil, 2000 UT App 378, ¶ 16, 18 P.3d 509 (holding that a parent could not avoid having income imputed to him while pursuing a four-year bachelor’s degree because such a degree was more education than necessary to acquire “basic job skills”). The trial court made specific findings with respect to Husband’s historical earnings, including his wages in the month before the parties’ separation. From those factual findings, it is apparent that Husband already possesses the education and training necessary to earn more than minimum wage. Consequently, the trial court did not err by imputing income to Husband despite his attendance at technical college.

Fish v. Fish, 242 P.3d 787, 792 (Utah Ct.App. 2010)

B. Husband’s Enrollment in Technical College Did Not Preclude the Trial Court from Imputing Income to Him.

¶ 18 Furthermore, Husband’s enrollment in technical college did not preclude the trial court from imputing income to him. While Husband is correct that Utah Code section 78B–12–203 precludes a trial court from imputing income to an individual who is “engaged in career or occupational training to establish basic job skills,” Utah Code Ann. § 78B–12–203(7)(d)(iii), Husband is not in need of basic job skills training. In Mancil v. Smith, 2000 UT App 378, 18 P.3d 509, this court held that “the basic job skills training envisioned by the statute is training which can aid a person in achieving an income beyond the minimum wage job which can be had with no training at all, i.e., training for the ‘starting point’ on a ‘consecutive progressive’ career track.” Id. ¶ 15. The policy behind Utah’s alimony laws, “to enable the receiving spouse to maintain as nearly as possible the standard of living enjoyed during the marriage and to prevent the spouse from becoming a public charge,” see Connell v. Connell, 2010 UT App 139, ¶ 9, 233 P.3d 836 (internal quotation marks omitted), is not furthered by permitting the payor spouse to pursue unnecessary continuing education that precludes him from paying alimony. Cf. Mancil, 2000 UT App 378, ¶ 16, 18 P.3d 509 (holding that a parent could not avoid having income imputed to him while pursuing a four-year bachelor’s degree because such a degree was more education than necessary to acquire “basic job skills”). The trial court made specific findings with respect to Husband’s historical earnings, including his wages in the month before the parties’ separation. From those factual findings, it is apparent that Husband already possesses the education and training necessary to earn more than minimum wage. Consequently, the trial court did not err by imputing income to Husband despite his attendance at technical college.

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What is the “right of first refusal”? Is it a statutory right in Utah?

What is the “right of first refusal”? Is it a statutory right in Utah?

Many of you dealing with child custody disputes may have heard the time “right of first refusal” in the context of child care.

This “right of first refusal” or “first right of refusal” is shorthand for a provision that goes into many child custody and parent-time orders.

What it means is that if a parent is unable to provide personal care and supervision for the children when they are scheduled to be with that parent, then the other parent has the “first right” to pick up the children and provide that care for the children, instead of having a babysitter, daycare provider, or other surrogate care provider take care of the children, until the parent with whom the children are scheduled to stay can again provide personal care and supervision.

The principle behind the right of first refusal is that the parents, not surrogate, should be providing as much care for their own children as possible. A good example of this would be when a parent who is scheduled to have the children for particular week or weekend has to go into work to deal with an emergency or out of town for a business trip.

A lot of mean-spirited and malicious parents get very territorial with their custody time and want to limit the amount of time the other parent has with the kids to the bare minimum. In response to this problem, the right of first refusal clause was invented. It requires 1) a parent who is going to be away from the children to notify the other parent that he or she will be away from the children for certain period of time and 2) that the other parent may provide care for the children before the parent can leave the children with a babysitter, in daycare, with a grandparent or neighbor, or any other surrogate provider.

The right of first refusal clause does not provide that you have to notify the other parent if you’re going to be away from the children for half-hour trip to the grocery store.

In situations like that, it wouldn’t make sense to notify the other parent of the right of first refusal and then have that parent drive 15 to 20 minutes or more to the other parent’s house to pick up the kids, and then have the shopping trip over with before the other parent even gets the kids to his/her home. If the children are young enough to be left at home alone for half an hour, a parent is allowed to do so without the right of first refusal applying. If the children are too young to be left at home alone for half an hour, the right of first refusal also does not apply, and instead a parent can have a neighbor or babysitter watch the children for that brief period that he or she is away from home.

And so the right of first refusal clause usually provides that you only have to notify the other parent if you know that you will be away from the children for a period of more than three or four hours. So if you’re going to be an important work meeting half a day or all day, the right of first refusal kicks in if you have to be out of town for several days due to work or a funeral or something like that, then the right of first refusal kicks in.

Some people believe, falsely, that the Utah Code has made this right of first refusal “statutory right,” a legal right. It has not.

Here is what the Utah Code actually provides:

Utah Code §30-3-33:

(15) Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care. Child care arrangements existing during the marriage are preferred as are child care arrangements with nominal or no charge.

That’s it. This creates no rights. These are guidelines, not legal mandates.

So unless you get the court to order a right of first refusal to take care of the kids in the other parent’s extended absence, you don’t have that right, period.

So if you want the right of first refusal, then you need the court to include such a clause in your child custody and parent-time order.

Some people suggest that the right of first refusal should be made a legal mandate, a statutory right. I’m not so sure.

In my opinion there is no need for there to be a law that provides for an absolute, irrevocable right of first refusal to provide care in the absence of the other parent. Some parents live too far away from each other to make that possible. Other parents have job schedules that make that impossible for them to exercise. It’s a great idea for most couples (if they can set aside their hatred for each other and agree that parental care is better for the kids than surrogate care), which is why that is something that individual parents and their attorneys should come up with on their own and then have the judge include the order. The problem with the Utah Code currently is that it has to many provisions already, not too few, when it comes to child custody and parent time issues.

I would have no problem with a provision in the Utah Code that a right of first refusal should not be denied if it is requested and the requesting parent can show by a preponderance of the evidence that he or she can make it work consistently and in the best interest of the children, or something like that. Because you and I both know that there are plenty of parents out there who object to the right of first refusal not because it’s a bad idea because they want to alienate the children from the other parent by denying them contact however they might.

It has been my experience that if the parents live close enough together and have work schedules that make it possible for them to provide care for the children when one of the parents would otherwise be scheduled to have the children in his/her custody is unavailable, courts will gladly and wisely include provisions for a right of first refusal.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Why don’t the police help more with custody and parent-time enforcement?

In some jurisdictions, interference with or noncompliance with child custody orders issued by a court are not enforceable by police officers or sheriff’s deputies because there is no statute or statutes that authorize and empower the police to intervene. This is why law enforcement officers do not intervene in such jurisdictions. The only way that law enforcement officers can intervene in such jurisdictions is for a court to authorize and direct law enforcement officers to enforce child custody and parent time orders, and to do so by force if necessary. This is why, when a parent asking for the police to help with enforcement of a child custody or parent time order, will often receive this kind of response from the officer or officers called: “This is a civil matter. We do not have the authority to intervene to enforce your court orders.”

In other jurisdictions, such as Utah, where I practice divorce and family law, laws have been passed and are now on the books making interference with child custody and/or parent time orders a violation of statutory law. They are commonly referred to as “custodial interference laws”.

Do law enforcement officers in such jurisdictions enforce such statutes? Rarely.

Why?

Because being a law enforcement officer is a thankless job. Consequently, with rare exception, law enforcement officers hate enforcing custodial interference laws. Law enforcement officers generally dislike handling disputes between parents over enforcement of custody and parent time orders because it wastes their time and resources and interferes with their ability to prevent and solve serious crimes, such as aggravated assault, rape, burglary, etc. Some officers get lazy sometimes A) don’t enforce laws they consider not worth enforcing and/or B) don’t want to hassle with all the paperwork associated with responding to, reporting on, and enforcing custodial interference laws.

Instead, they will lie to your face and give you the “This is a civil matter. We do not have the authority to intervene to enforce your court orders” line in the hope that you will believe them when they tell you they cannot help you and thus stop asking them for help. [NOTE here: if you are someone who does not deal with law enforcement officers routinely, you would be pardoned for believing law enforcement officers do not lie and lie a lot. So fool you once, shame on them, fool you twice, shame on you. I know this may shock and sadden some readers—I felt that way when I discovered it and could no longer deny it.] Officers who don’t want to enforce custodial interference laws deal with parents who know of the laws on the books and aren’t fooled by the “this is a civil matter” dodge will simply threaten to arrest those parents who won’t back down for “disorderly conduct” and/or “disturbing the peace” (two favorite go to intimidation tactics that law enforcement officers frequently utilize to get people off their backs). Why? Because they can get away with it. More often than not, if you were to complain about law enforcement officers failing and refusing to enforce custodial interference laws, their superiors will nod their heads, thank you for “bringing this matter to my attention,” promise that action will be taken, wait for you to hang up the phone or leave the office, and then never give the matter a second thought.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Why-don-t-the-police-help-more-with-custody-enforcement/answer/Eric-Johnson-311

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Plan a Parenting Schedule That Works for Your Family – by Ryan Howard

Published with permission and by request of the author:

How To Plan A Parenting Schedule

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How does the “right of first refusal” to provide child care work?

QUESTION: I have a question about what is often called “the right of first refusal” to provide care for a child when the other parent who would otherwise be scheduled to have care and custody is unavailable due to work or some other scheduling conflict.  A common provision in a divorce decree looks like this:
Right of first refusal to provide care. If a party who would otherwise have the minor child in his/her care and custody is unavailable to provide personal care and supervision for the minor child for a period of ____ (___) hours* or longer, the other parent has the right of first refusal to provide personal care and supervision.
So when exercising this right of first refusal, do I have to be able to provide care for the children for the entirety of the time specified?  For example, my ex is unavailable some days from 8:00 a.m. to 8:00 p.m., and I am available to provide care for the kids from 8:00 a.m. to 4:00 p.m. Would it be my responsibility to find childcare for the last 4 hours?  Or would I even get them at all since I can’t provide care the full 12 hours?

ANSWER: This is a great question. The answers are, in my opinion:
A) that as long as you notify your ex in advance that you intend to exercise the right of first refusal to provide care and include in the notice the fact that you cannot provide care for the entire time your ex is unavailable,
B) then you get to take the child during the time that the other parent is not available for as long as you can. If, after that point, the other parent is still not available and you aren’t either, then:
C) it would be up to you to get the child to the daycare provider that you and your ex may use when either of you or both of you aren’t available to provide personal care for the children,
D) and if you don’t have a regular day care provider like that, it would be up to you to find a babysitter to take care of the child in your absence until you can bring the child back to the other parent during that parents regularly scheduled custody or parent time period. If your ex is unavailable to provide personal care and supervision due to work, then you and your ex would be equally responsible for the costs of the surrogate care provider, if you’re using a paid care provider. If your ex is unavailable to provide personal care and supervision for a reason other than work, then I’m not sure it would be fair for you to be responsible for the costs of that babysitter/childcare provider when, in your absence, your ex would have been responsible for that.
*usually a period of 3-4 hours, but it can be any reasonable length of time.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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Is it unreasonable to insist Dad/Mom provide clothes for the kids at his/her place?

QUESTION: Is it unreasonable for me to assume my kids would have their own clothes at their dad’s place?

He has been requesting that I send specific items with the kids for his weekends (stuff like swim shirts, church clothes, extra socks), and since he has been in a tight spot I have obliged. It’s come to the point where he has failed to return the borrowed items and I have to replace them, as he refuses to either compensate or return the items. Would it be wrong of me to tell him that I will no longer send the kids with anything?

ANSWER:

No, it IS NOT unreasonable for you to assume that the kids would have their own clothes at Dad’s place.

Yes, it IS wrong to send the kids to him without clothes. The kids suffer, and they won’t understand that Dad’s to blame. Dad’s a bum, but the kids need clothes.

SUGGESTIONS:

Dad should buy the kids some clothes for their use when they are at his house. Sunday clothes are a good example (that way they don’t get lost in transit back and forth). They aren’t that expensive (if you buy from a thrift shop, and the stuff at thrift shops is perfectly, perfectly good–no one can tell it’s from a thrift shop, if you shop carefully).

It only makes good sense for Dad to have some (not a lot, but enough) clothes on hand so that if the the clothes the kids packed aren’t wearable (stains, mud, rips, tears, loss, etc.), Dad has something for them to wear instead. Dad could easily buy a week’s worth of clothing for each child (not including shoes, and even then, he can get some flip flops or cheap sneakers in a pinch) for under $100 per child, and he can build up the “Dad’s place” wardrobe over time. Even starting out with just a single “outfit” for each child is a prudent emergency backup plan that Dad should follow.

Going forward, however, you can take reasonable, pragmatic steps to ensure he doesn’t hoard clothes in the future (these may seem kind of weird or inconvenient, but they aren’t; your attorney will thank you for doing this):

1) Take a photograph of each item of clothing you purchase, along with a photograph or copy of the receipt for the purchase;

2) Photograph everything you pack for the kids that you send over with them to Dad’s;

3) If the kids return with less than they left with, you can e-mail Dad the photographs of everything you packed, along with the photographs of everything you purchased, with proof of purchase, and tell him that you own these clothes, that Dad has them and has not returned them, and that if he does not return them, you will report them stolen and will seek to have him sanctioned by the divorce court.

Give the idea some thought.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Can I sue for the child support I paid after our child started living with me?

QUESTION: Can I sue my child’s mother for the child support that was deducted from my pay after our child started living with me, in my home?

ANSWER: Utah Code § 78B-12-108 provides (in part), that except in cases of joint physical custody and split custody, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay support, without the need to modify the order for the parent who has physical custody of the child.

Here is the text of the entire code section:

§ 78B-12-108. Support follows the child.

(1) Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child.

(2) Except in cases of joint physical custody and split custody as defined in Section 78B-12-102, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with Sections 78B-12-205 and 78B-12-212, without the need to modify the order for:

(a) the parent who has physical custody of the child;

(b) a relative to whom physical custody of the child has been voluntarily given; or

(c) the state when the child is residing outside of the home in the protective custody, temporary custody, or custody or care of the state or a state-licensed facility for at least 30 days.

Unfortunately, though the Code would appear to provide that you don’t have to go back to court to get the child support order modified, unless and until you do go back to court to seek the modification of the order the court will not know of the change in custody and the existing child support order will remain in full force and effect.[1] So you will need to go to the court (or, if ORS is collecting child support, in some situations you can go to ORS) to notify it of the change in custody and to ask the court (or ORS, if applicable) to modify the support order.

Whether you need to move (file a motion) to modify or sue (file a petition) to modify is not clear to me, so when in doubt, I file a petition, then file a motion and see which one the court deems appropriate.

And bear in mind that if you move/petition to modify child support by claiming there’s been a de facto change in custody (being in effect though not legally recognized constituted or authorized), then your ex will likely retaliate respond by accusing you of custodial interference, kidnapping, and/or non-compliance with the court’s child custody order.

Otherwise stated: get a good lawyer, if you want to undertake this.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] Because:

Utah Code § 78B-12-112.  Payment under child support order — Judgment.

(3) Each payment or installment of child or spousal support under any support order, as defined by Section 78B-12-102, is, on and after the date it is due:

(a) a judgment with the same attributes and effect of any judgment of a district court, except as provided in Subsection (4);

(b) entitled, as a judgment, to full faith and credit in this and in any other jurisdiction; and

(c) not subject to retroactive modification by this or any other jurisdiction, except as provided in Subsection

(4) A child or spousal support payment under a support order may be modified with respect to any period during which a modification is pending, but only from the date of service of the pleading on the obligee, if the obligor is the petitioner, or on the obligor, if the obligee is the petitioner. If the tribunal orders that the support should be modified, the effective date of the modification shall be the month following service on the parent whose support is affected. Once the tribunal determines that a modification is appropriate, the tribunal shall order a judgment to be entered for any difference in the original order and the modified amount for the period from the service of the pleading until the final order of modification is entered.

Shuman v. Shuman, 2017 UT App 192 – child custody and support, marital assets and debts, medical and child care expenses

2017 UT App 192

THE UTAH COURT OF APPEALS

CATHERINE JANE SHUMAN,

Appellee,

WESLEY ROBINSON SHUMAN, Appellant.

Opinion

No. 20160226-CA

Filed October 19, 2017

Third District Court, West Jordan Department

The Honorable William K. Kendall No. 104400246

Theodore R. Weckel Jr., Attorney for Appellant

James M. Hunnicutt and Julie J. Sagers, Attorneys for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES KATE A. TOOMEY and RYAN M. HARRIS concurred.[1]

POHLMAN, Judge:

¶1 Wesley Robinson Shuman and Catherine Jane Shuman obtained a bifurcated decree of divorce in 2011. Several years later, in 2015, all outstanding issues related to their divorce were submitted to the trial court for resolution. Following a two-day trial, the court granted primary physical and sole legal custody of the parties’ three minor children to Catherine.[2] The court also resolved the parties’ disagreements regarding marital assets and debts, child support, medical and childcare expenses, and other matters. Wesley appeals the trial court’s rulings with respect to custody, marital assets and debts, medical and childcare expenses, and child support, challenging both the adequacy of the trial court’s factual findings and the sufficiency of the evidence underlying those findings. In addition, he claims the trial court’s order regarding parent-time fails to conform to the court’s factual findings. We affirm in part and reverse in part.

STANDARD OF REVIEW

¶2 “We review the legal adequacy of findings of fact for correctness as a question of law.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 15, 257 P.3d 478 (citation and internal quotation marks omitted). “We review this issue only if it was presented to the trial court in such a way that the trial court had an opportunity to correct any deficiencies in the adequacy of the detail of the findings of fact.” Interstate Income Props., Inc. v. La Jolla Loans, Inc., 2011 UT App 188, ¶ 12, 257 P.3d 1073 (citing 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801).

¶3 When reviewing a challenge to the sufficiency of the evidence, we will not set aside a trial court’s factual findings “unless clearly erroneous,” giving “due regard to the trial court’s opportunity to judge the credibility of the witnesses.” Utah R. Civ. P. 52(a)(4). Challenges to the sufficiency of the evidence may be raised on appeal “whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings” in the trial court. Id. R. 52(a)(3); see also In re K.F., 2009 UT 4, ¶¶ 60–64, 201 P.3d 985 (explaining that, to preserve the issue for appeal, parties must object in the trial court “to the adequacy of the detail of” the court’s factual findings, but no similar preservation requirement applies to challenges to the sufficiency of the evidence). A party challenging the sufficiency of the evidence “will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal” the evidence in support of the challenged finding. State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645.

ANALYSIS

  1. Custody

¶4 Wesley asserts the trial court’s factual findings with respect to custody were inadequate in detail and were not supported by sufficient evidence. He first contends the trial court’s “findings regarding legal custody were grossly defective,” in that they “omitted consideration of material evidence” he presented at trial. He also contends the trial court’s findings “failed to consider many material factors relating to physical custody,” and he asserts “primary custody [should be awarded] to [him] outright.” Catherine responds that the trial court’s findings “present substantial factual grounds supporting [its] ultimate conclusion that Catherine should continue having custody of the minor children.”[3]

¶5 A trial court’s factual findings “must be sufficiently detailed and include enough subsidiary facts to clearly show the evidence upon which they are grounded.” In re S.T., 928 P.2d 393, 398 (Utah Ct. App. 1996); see also Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (“Findings are adequate when they contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.”); Rayner v. Rayner, 2013 UT App 269, ¶ 11, 316 P.3d 455 (“Findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” (citation and internal quotation marks omitted)). This obligation facilitates meaningful appellate review and ensures the parties are informed of the trial court’s reasoning. See In re S.T., 928 P.2d at 399.

¶6 But trial courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling. Cf. id. at 398 (“A trial court is not required to recite each indicia of reasoning that leads to its conclusions, nor is it required to marshal the evidence in support of them.” (brackets, citation, and internal quotation marks omitted)). Indeed, so long as the “steps by which the ultimate conclusion on each factual issue was reached” are apparent, see Rayner, 2013 UT App 269, ¶ 11 (citation and internal quotation marks omitted), a trial court may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome, see In re S.T., 928 P.2d at 398–99 (“[A] trial court is also not required to explain why it found certain witnesses less credible or why some testimony was given less weight or considered irrelevant.”).

¶7 Here, the trial court’s findings with respect to custody span approximately six pages and detail the “subsidiary facts,” credibility determinations, and analytical “steps by which the [court’s] ultimate conclusion” on the issue of custody was reached. See Rayner, 2013 UT App 269, ¶ 11 (citation and internal quotation marks omitted). Without addressing the vast majority of the court’s findings,[4] Wesley selectively highlights evidence from the trial record, asserts the evidence supported a different outcome, and claims the court’s findings were inadequate because they did not specifically address his highlighted evidence. As set forth above, however, Wesley misunderstands the nature of the trial court’s obligation, see In re S.T., 928 P.2d at 398–99, and Wesley has not demonstrated how the court’s findings are insufficient to support its conclusion, see, e.g., Dahl v. Dahl, 2015 UT 79, ¶ 123 (rejecting a claim of inadequate factual findings, concluding that “the findings were based on the evidence presented to the district court and were sufficiently detailed to disclose the steps by which it reached the ultimate distribution”).

¶8        In addition, to successfully challenge the sufficiency of the evidence underlying a trial court’s factual finding, “the appellant must overcome the healthy dose of deference owed to factual findings by identifying and dealing with the supportive evidence and demonstrating the legal problem in that evidence, generally through marshaling the evidence.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890 (brackets, citation, and internal quotation marks omitted). Parties challenging factual findings cannot persuasively carry their burden in this respect “by simply listing or rehashing the evidence and arguments [they] presented during trial” or “by merely pointing to evidence that might have supported findings more favorable to [them]; rather, [they] must identify flaws in the evidence relied on by the trial court that rendered the trial court’s reliance on it, and the findings resulting from it, clearly erroneous.” Id. ¶ 43. Indeed, as noted above, a party challenging the sufficiency of the evidence in support of “a factual finding . . . will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal” the evidence that supports the challenged finding. State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645.

¶9 Wesley has not addressed most of the trial court’s findings and makes no attempt to marshal the evidence in support of them. He clearly views the evidence as compelling a different outcome, but it is not within our purview to “engage in a reweighing of the evidence,” Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 3, 241 P.3d 365 (citation and internal quotation marks omitted), and Wesley has not demonstrated that the evidence underlying the trial court’s findings is insufficient, see Taft, 2016 UT App 135, ¶ 19; see also, e.g., Fish, 2016 UT App 125, ¶ 29 (rejecting the appellant’s “attempt to inject alternative findings favorable to his preferred outcome under the guise of an adequacy-of-the-findings or sufficiency-of-the-evidence challenge”).

¶10 We are, of course, sensitive to the emotional undercurrents giving rise to Wesley’s challenge on appeal. This appears to have been “a very difficult and close case with meritorious arguments from both parties—both of whom love and care for their children.” See Peck v. Polanco, 2015 UT App 236, ¶ 14, 360 P.3d 780. “But the fact that the evidence could also have supported a determination that [Wesley] should [obtain joint custody or] gain primary physical custody of the children . . . does not” render the trial court’s findings inadequate or unsupported by the evidence, nor did it require an outright grant of custody in his favor. See id.

  1. Marital Assets and Debts

¶11 With regard to the trial court’s division of marital assets and debts, Wesley likewise contends that the trial court’s factual findings were inadequate in detail and were not supported by sufficient evidence. As set forth above, to preserve a challenge to the adequacy of the detail in the trial court’s findings, the challenge must be “presented to the trial court in such a way that the trial court had an opportunity to correct any deficiencies in the adequacy of the detail of the findings of fact.” Interstate Income Props., Inc. v. La Jolla Loans, Inc., 2011 UT App 188, ¶ 12, 257 P.3d 1073.

¶12 Although Wesley raises multiple challenges to the adequacy of the trial court’s factual findings with respect to marital assets, he raised only one such assertion in the trial court, and we therefore address only that contention.[5] See id. Wesley’s preserved argument is that (1) there were alleged discrepancies between Catherine’s valuations of marital assets as presented at trial and as presented by Catherine in other court documents, (2) Wesley presented contrary and more credible evidence as to the value of marital assets, and (3) “[t]he findings do not state why the Court discounted [Wesley’s] evidence over

[Catherine’s].”

¶13 Here again, Wesley’s argument rests on a mistaken premise as to the trial court’s obligation. See supra ¶¶ 5–6. Both parties submitted lists of marital assets and proposed values for those assets, and the trial court’s findings indicate that it credited the list of assets and values provided by Catherine. The trial court was not required to further explain its implicit determination that Catherine’s evidence was more accurate or reliable than Wesley’s. See In re S.T., 928 P.2d 393, 398–99 (Utah Ct. App. 1996).

¶14 With regard to Wesley’s challenge to the sufficiency of the evidence underlying the trial court’s factual findings, the findings “are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if the court has a definite and firm conviction that a mistake has been made.” Taft v. Taft, 2016 UT App 135, ¶ 16, 379 P.3d 890 (brackets, citation, and internal quotation marks omitted). The existence of discrepancies between the values Catherine assigned to assets in different court documents does not, standing alone, establish that the values provided in Catherine’s trial exhibit were inherently unreliable or otherwise insufficient to support the trial court’s factual findings. For example, at trial, Catherine testified that some discrepancies may have arisen because, in her trial exhibit, she incorporated Wesley’s suggestion as to an item’s value, or because the assets valued in the divorce proceeding were not the same assets valued in other court documents. In addition, while Wesley cites discrepancies in the values assigned by Catherine to a vehicle, Wesley assigned the same $3,000 value to that asset as Catherine did in her trial exhibit. Wesley’s alleged discrepancies in Catherine’s various court documents thus do not demonstrate insufficiency of the evidence with respect to the trial court’s factual findings regarding marital assets.[6]

¶15 The record does not otherwise present “significant” discrepancies between the evidence presented at trial and the offset awarded in Catherine’s favor, as Wesley claims. However, the trial court plainly relied on Catherine’s evidence in calculating the nearly $16,000 offset awarded in her favor. And as Wesley points out, that offset would have been less if based on the value of marital assets to which Catherine testified at trial, after taking into account that Catherine admitted she erroneously “included the [$600] heat blankets on her list twice.” We therefore remand to the trial court to either make additional findings detailing the basis for not adjusting the offset for the double-counted heat blankets or to adjust the offset to account for the erroneously included blankets.

¶16 With regard to marital debt, Wesley challenges the trial court’s decision not to hold Catherine “responsible for [the] marital debt that [Wesley] was claiming.” The trial court found “no reason to hold [Catherine] liable for” most of the marital debt claimed by Wesley, finding that Catherine’s bankruptcy proceeding “benefited both parties by discharging a large portion of the marital debt” and that Wesley was “not paying on the marital debt.” Wesley’s briefing, however, is unclear as to the type of challenge he is asserting—e.g., inadequacy of the court’s findings, insufficiency of the evidence underlying those findings, or abuse of discretion in adjusting the parties’ financial interests, see, e.g., id. ¶ 32 (“The trial court in a divorce action is permitted considerable discretion in adjusting the financial and property interests of the parties, and . . . this court will not disturb a court’s distribution of marital property unless it is clearly unjust or a clear abuse of discretion.” (citations and internal quotation marks omitted)).

¶17 As legal authority in support of his argument, Wesley includes a citation to a single, unpublished decision from another jurisdiction, without analysis or discussion thereof. But “bald citation to authority,” without development and reasoned analysis, does not constitute argument setting forth the “contentions and reasons . . . with respect to the issues presented, . . . with citations to the authorities, statutes, and parts of the record relied on,” as required under Utah Rule of Appellate Procedure 24. Hampton v. Professional Title Services, 2010 UT App 294, ¶ 2, 242 P.3d 796 (citations and internal quotation marks omitted); see also Utah R. App. P. 24(a)(9); CORA USA LLC v. Quick Change Artist LLC, 2017 UT App 66, ¶ 5, 397 P.3d 759 (“[W]hile failure to cite to pertinent authority may not always render an issue inadequately briefed, it does so when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court.” (citation and internal quotation marks omitted)).

¶18 Wesley’s argument also fails to address the broader picture of the parties’ relative circumstances to demonstrate that, given the overall distribution of assets and debts and the parties’ relative incomes and expenses, etc., the court’s ruling with regard to marital debt must be reversed. As noted above, the court concluded that Catherine discharged a significant amount of marital debt through her bankruptcy proceeding and, as Wesley notes, the court awarded Wesley an additional $13,000 offset due to debt Catherine incurred. Thus, “[w]hile there is no bright line between adequate and inadequate briefing, we conclude that [Wesley] has not developed an argument sufficient to carry [his] burden of persuasion” on appeal as to this issue. See CORA USA, 2017 UT App 66, ¶ 6 (first alteration in original) (citation and internal quotation marks omitted).

¶19 Wesley also asserts the trial court failed to make findings regarding a debt allegedly owed to his sister, for a loan to the parties for the purchase of stone engraving equipment. Wesley asserts that “[i]n spite of [his] evidence [with respect to the loan], . . . the findings do not classify the debt as marital, nor do they assign the debt to either party.” Wesley is correct. Although the trial court noted that it would not resolve whether Wesley’s sister had a right to possession of the equipment, the court did not otherwise address the alleged debt owed to Wesley’s sister.

¶20 A trial court’s “[f]ailure to make findings on all material issues [regarding property distribution in a divorce proceeding] is reversible error unless the facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Taft v. Taft, 2016 UT App 135, ¶ 33, 379 P.3d 890 (first alteration in original) (citation and internal quotation marks omitted). Here, Wesley submitted evidence regarding an alleged marital debt, and the court neither addressed that evidence nor assigned the debt to either party. We therefore “remand to give the trial court the opportunity to enter more detailed findings as to the [alleged debt], and, if necessary, to amend the property division.” See id. ¶ 47.

III. Medical and Childcare Expenses

¶21 Wesley contends that the trial court’s factual findings were also insufficient to support its ruling that Wesley reimburse Catherine over $5,000 for medical and childcare expenses. In one respect, Catherine concedes error in the trial court’s calculation of the reimbursement amount, due to “duplicate entries on

Catherine’s list of medical and childcare expenses,” and agrees Wesley is entitled to a reduction of $702.44 in “the amount awarded to [Catherine] for medical and childcare reimbursements.” We therefore instruct that, on remand, the trial court alter its judgment accordingly.

¶22 But Wesley further claims the court’s findings did not “state” or “comment” on the court’s rationale for not crediting Wesley’s arguments or evidence as to the medical and childcare expenses each party claimed to have incurred on behalf of their children. Wesley largely reiterates the positions he took in the trial court that, for example, the expenses incurred by Catherine were submitted to him untimely and with insufficient supporting documentation. But the trial court concluded otherwise, stating that “[t]he parties presented conflicting evidence regarding billing and collecting various expenses,” that Catherine submitted “credible evidence of numerous invoices, receipts, and emails documenting the” expenses and amounts owed by Wesley, and that Wesley’s “justifications for not paying these invoices [were] not sufficient to warrant non-payment.”

¶23 The court’s reimbursement order was plainly based on the evidence Catherine submitted at trial, and Wesley has not identified flaws in that evidence rendering the trial court’s reliance on it, and the findings resulting from it, clearly erroneous. See id. ¶ 43. Nor has Wesley demonstrated that the court’s explanation was insufficiently detailed or failed to include “enough subsidiary facts to clearly show the evidence upon which” the court’s findings were grounded, see In re S.T., 928 P.2d 393, 398 (Utah Ct. App. 1996), with one exception. Both at trial and on appeal, Wesley challenged the lack of findings addressing his claim that Catherine had not reimbursed him for medical expenses incurred on behalf of the children. We agree with Wesley that the court’s findings do not address this claim, nor do the findings include an implicit or explicit determination that the evidence Wesley offered in support of his claim was not credible.

¶24 As noted above, a trial court’s “[f]ailure to make findings on all material issues is reversible error unless the facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Taft, 2016 UT App 135, ¶ 33 (citation and internal quotation marks omitted). Here, Wesley submitted evidence in support of his claim for reimbursement of medical expenses, and the court neither addressed that claim nor offset the reimbursement Wesley was ordered to provide to Catherine for medical expenses by any amount. We therefore “remand to give the trial court the opportunity to enter more detailed findings as to [the medical expenses alleged by Wesley], and, if necessary, to amend” the order requiring reimbursement of medical expenses Catherine incurred on behalf of the children. See id. ¶ 47.[7]

  1. Child Support

¶25 With regard to the trial court’s calculation of Wesley’s child support obligation, Wesley likewise asserts the court’s findings were “insufficient.” Specifically, Wesley asserts on appeal, as he did in the trial court, that the court’s findings failed to address evidence that he had not received any credit against his child support obligation for several periods of extended parent-time, to which he allegedly was entitled. See Utah Code Ann. § 78B-12-216(1) (LexisNexis 2015) (providing for reductions in child support obligations due to extended parent-time).

¶26 At trial, the court noted that the “parties are at least in agreement that [Wesley] would get a credit for those [dates] as long as he can document [them].” The court also informally noted that because Wesley was “asking for credit,” the court would place on Wesley the burden of “tak[ing] . . . the steps” needed to submit to Catherine documentation required to obtain the credit. However, the trial court’s findings did not address this issue, thus leaving open a material issue with respect to the parties’ divorce and attendant child support obligations. See Taft, 2016 UT App 135, ¶ 33. Accordingly, we remand to give the trial court the opportunity to enter findings addressing this question and, if necessary, to amend the court’s order with respect to Wesley’s child support obligation. See id. ¶ 47.

¶27 Wesley makes additional arguments challenging the trial court’s calculation of child support, but it appears that at least one of these assertions was not preserved for appellate review,[8] and Wesley’s other assertion relies on an incorrect understanding of the trial court’s obligation with respect to factual findings and is also inadequately briefed.[9] We therefore do not address further Wesley’s remaining arguments with respect to child support.

  1. Parent-Time

¶28 Wesley’s final challenge asserts that the trial court’s order and judgment fails to conform to the court’s findings with respect to parent-time. Specifically, Wesley alleges the order “add[s] restrictions” on Wesley’s parent-time and “orders the parties to split [the children’s] fall and spring breaks [in] alternating years,” contrary to the court’s findings, which provide that Wesley “shall . . . be entitled to enjoy parent time during the entire Fall and Spring school breaks.” He also briefly asserts that both the trial court and Catherine were negligent in relation to the preparation and filing of the proposed parenting plan and the final order. However, under rule 24 of the Utah Rules of Appellate Procedure, a party seeking appellate review must provide a “citation to the record showing that the issue was preserved in the trial court” or “a statement of grounds for seeking review of an issue not preserved in the trial court.” Utah R. App. P. 24(a)(5)(A), (B). Wesley has provided neither; instead, he cites to a rule of appellate procedure that does not provide any basis for preservation. See id. R. 30(a). This issue is therefore inadequately briefed, see id. R. 24(a)(5)(A), (B), and we do not address it further.

CONCLUSION

¶29 We remand the case (1) with the instruction that the trial court make additional findings with respect to the division of marital assets detailing why the offset awarded is greater than if calculated based on the evidence Catherine presented and admitted to at trial regarding the value of marital assets, or to adjust the offset by that approximate amount; (2) with the instruction that the award to Catherine for medical and childcare expenses be reduced by $702.44, consistent with the parties’ agreement on appeal; and (3) for additional findings on the questions of (a) whether there is a marital debt owed by the parties on stone engraving equipment and, if so, the allocation of that debt to either or both of the parties, (b) whether Wesley is entitled to an offset due to medical expenses he incurred on behalf of the children, and (c) whether Wesley is entitled to a credit against his child support obligations due to extended parent-time; together with whatever, if any, adjustment in the trial court’s ruling it determines is appropriate in view of the additional findings. In all other respects, the ruling of the trial court is affirmed.

______________________________________________

[1] . After hearing the arguments in this case, Judge J. Frederic Voros Jr. retired and did not participate in the consideration of the case. Judge Ryan M. Harris, having reviewed the briefs and listened to a recording of the oral arguments, substituted for Judge Voros and participated fully in this decision.

[2] . “As is our practice in cases where both parties share a last name, we refer to the parties by their first name with no disrespect intended by the apparent informality.” See Smith v. Smith, 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.

[3] . Catherine also contends that, in the trial court, Wesley did not contest the adequacy of the court’s factual findings with respect to custody, but Wesley’s challenges to the adequacy of the court’s findings were largely included in his post-trial motion. While the presentation of those challenges could have been clearer, we conclude that those arguments were preserved for appellate review.

[4] . The trial court found, for example, that one child preferred “to remain with [Catherine]” and it was a “compelling” factor to keep all of the minor children together; that Catherine “was the primary caregiver of the children when the parties were married, and it would be in [the children’s] best interest to continue that continuity of care”; that Catherine had “put the best interests of the children first and . . . foster[ed] positive relationships between [the] children and [Wesley]”; that Wesley had “involved [the parties’ older] children in divorce issues and communications against [Catherine]”; that Wesley had “made negative statements about [Catherine] to the children”; that Wesley had “cancelled, not shown for, been late dropping off or picking up, or not calendared[] parent time”; and that the court had “concern[s] about [Wesley’s] motives and credibility.”

[5] . Wesley asserts, for example, that the trial court failed to recognize and assign to the parties a debt owed on motorized scooters, but Wesley provides no citation to the record demonstrating that evidence of the alleged debt was presented to the court during trial, and it appears from our review of the record that the issue was not properly presented for the trial court’s consideration.

[6] . While Wesley asserts his asset values were clearly superior to Catherine’s, we note that Wesley’s proposed values were, like Catherine’s, based on estimates of current value. The trial court’s acceptance or rejection of those values turned largely on credibility determinations, and Wesley has failed to overcome the strong deference owed to those determinations. See Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890.

[7] . Wesley includes an additional, single sentence in his appellate briefing, stating, “The findings also gave no offset for [Wesley] paying the full medical insurance coverage for the children.” It may be that this sentence asserts a challenge to the court’s findings, but given the lack of clarity as to the type of challenge asserted, as well as the absence of any citation to or development of legal authority or argument in support of this claim, we do not address it further. See supra ¶¶ 16–17.

[8] . For example, Wesley asserts that he “should be given two child support credits for the children he is supporting with his current wife.” But as with other contentions in his brief, it is unclear whether this single sentence is asserting a challenge to the adequacy of the court’s findings or sufficiency of the evidence underlying them. Given that lack of clarity, the absence of citation to legal authority or development of this claim, and the absence of record citation showing preservation of this issue, we do not address it further. See supra ¶¶ 2, 16–17.

[9] . Wesley asserts the court’s findings “did not consider” that Wesley’s earning potential was used to calculate his child support obligation, while Catherine’s earning potential was allegedly understated for that same purpose. But again, Wesley’s argument is summarily made, without development of or citation to authority, and thus fails to carry Wesley’s burden of demonstrating error. See supra ¶¶ 17–18. And Wesley’s insistence that the court’s findings explicitly “consider these facts” again misrepresents the trial court’s obligation with respect to its findings. See supra ¶¶ 5–6.

 

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Vesey v. Nelson – 2017 UT App 77 – reimbursement for daycare expenses – timely request – laches – Utah Code § 78B-12-214(2) and (3)

2017 UT App 77 – THE UTAH COURT OF APPEALS

ANDREW VEYSEY, Appellee, v. ALEXIS NELSON, Appellant.

Opinion No. 20150609-CA Filed May 4, 2017

Third District Court, Salt Lake Department

The Honorable Barry G. Lawrence No. 984907587

Troy L. Booher and Beth E. Kennedy[1], Attorneys for Appellant

Jenna Hatch, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision, in which JUDGE STEPHEN L. ROTH concurred. JUDGE J. FREDERIC VOROS JR. concurred in the result, with opinion.

ORME, Judge:

¶1 Alexis Nelson (Mother), formerly known as Alexis Veysey, appeals the district court’s order denying her claim for daycare-expense arrearages. We affirm.

¶2 In 2013, Mother sought reimbursement from Andrew Veysey (Father) for daycare expenses that she incurred between 2002—over a decade earlier—and 2006. The commissioner denied her claim in substantial part, holding that laches and the applicable statute of limitations precluded the recovery of daycare expenses incurred before 2005. Mother filed an objection with the district court, which conducted an evidentiary hearing and approved the commissioner’s order.

¶3 Mother appealed, and we vacated the order and remanded for additional findings of fact and conclusions of law. See Veysey v. Veysey, 2014 UT App 264, ¶ 21, 339 P.3d 131. In that prior appeal, we concluded that ‚variable daycare expenses constitute[d] child support” and that the statute of limitations did ‚not preclude Mother from seeking reimbursement for the pre-2005 daycare expenses.[2]  Id. ¶ 15. We noted, however, that if supported by adequate factual findings, laches could equitably preclude the recovery of daycare expenses that were legally recoverable under the statute of limitations. See id. ¶ 18.

¶4 On remand, the district court held that laches barred most of Mother’s reimbursement claims. Mother, a lawyer, then filed a motion to alter or amend the judgment, claiming that Utah law prohibits the application of laches when an action is timely under the applicable statute of limitations. The district court denied that motion. Mother appeals.

¶5 Mother raises two arguments. First, she argues that the district court erroneously applied the doctrine of laches.

Whether laches applies is a question of law, which we review for correctness.[3]  See Johnson v. Johnson, 2014 UT 21, ¶ 8 & n.11, 330 P.3d 704. Second, Mother claims that the district court erred by concluding that she unreasonably delayed her action and that her delay prejudiced Father. The application of laches to a particular set of facts and circumstances “presents a mixed question of law and fact.” See id. ¶ 8. Within that framework, “we review the trial court’s conclusions of law for correctness” and “will disturb [its] findings of fact only if they are clearly erroneous.” Matthews v. Galetka, 958 P.2d 949, 950 (Utah Ct. App. 1998). Although “we typically grant some level of deference to the trial court’s application of law to the facts,” Wayment v. Howard, 2006 UT 56, ¶ 9, 144 P.3d 1147, the court’s determination must be supported by adequate factual findings, see Anderson v. Thompson, 2008 UT App 3, ¶ 42, 176 P.3d 464.

¶6 Mother argues that “Utah law precludes laches as a defense to court-ordered child support, including variable daycare expenses.” Specifically, she asserts that the Utah Supreme Court has “rejected the application of laches as a defense to legal claims.”

¶7 In support of her assertion, Mother cites DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835 (Utah 1996), where the Utah Supreme Court stated that when “the plaintiff’s claims are based in law, the statute of limitations, not the doctrine of laches, governs the timing surrounding a plaintiff’s filing of a complaint.” Id. at 845. But DOIT failed to note that Utah has “abolished any formal distinction between law and equity,” Borland v. Chandler, 733 P.2d 144, 146 (Utah 1987), and in support of the proposition Mother cites, DOIT relied on United States Supreme Court authority that predates the Federal Rules of Civil Procedure, see DOIT, 926 P.2d at 845. With the adoption of the Federal Rules of Civil Procedure in 1938, however, the distinction between law and equity was abolished in the federal courts. See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472 n.5 (1962). See also Borland, 733 P.2d at 146 (noting that “[i]t is well established that equitable defenses may be applied in actions at law and that principles of equity apply wherever necessary to prevent injustice”). And in the years following DOIT, the Utah Supreme Court has specifically held that “[t]he doctrine of laches may apply in equity, whether or not a statute of limitation also applies and whether or not an applicable statute of limitation has been satisfied” Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 18, 321 P.3d 1021 (alteration in original) (citation and internal quotation marks omitted). Accordingly, because laches may apply in situations where the statute of limitations has not yet run, the existence of a statute of limitations does not, as Mother suggests, automatically preclude application of the laches doctrine.[4]

¶8 Mother also contends that her delay was reasonable and that it did not prejudice Father. The laches doctrine ‚is founded upon considerations of time and injury.” Id. ¶ 17 (citation and internal quotation marks omitted). ‚To successfully assert a laches defense, a defendant must establish both that the plaintiff unreasonably delayed in bringing an action and that the defendant was prejudiced by that delay.” Borland, 733 P.2d at 147.

¶9 In regard to unreasonable delay, Mother claims that her action was reasonable because it was timely under the applicable statute of limitations. See Utah Code Ann. § 78B-5-202(6)(a)(i) (LexisNexis Supp. 2016). Relying on Lee v. Gaufin, 867 P.2d 572 (Utah 1993), Mother insists that any action consistent with the applicable statute of limitations is ‚reasonable per se.” See id. at 576 (stating that statutes of limitations ‚necessarily allow a reasonable time in which to file a lawsuit”) (citation and internal quotation marks omitted).

¶10 We have largely dispelled this notion. See supra ¶ 7. Additionally, as the district court noted, Mother waited more than a decade to seek reimbursement for some of the daycare expenses, yet Utah law required Mother to notify Father of changes in child care providers and expenses within thirty days. See Utah Code Ann. § 78B-12-214(2)(b)(ii) (LexisNexis 2012) (‚In the absence of a court order to the contrary, the parent shall notify the other parent of any change of child care provider or the monthly expense of child care within 30 calendar days of the date of the change.”). And although Father knew about the change in daycare providers, there is nothing in the record that indicates he was aware of any change in his financial obligations relative to daycare expenses. Because the district court found that Mother did not have a justifiable explanation for her delay, and because it supported its conclusion with adequate findings, it did not err when it held that her delay was unreasonable.

¶11 Mother also claims that her delay did not prejudice Father. She points out that “[l]aches is designed to shelter a prejudiced defendant from the difficulties of litigating meritorious claims after an unexplained delay.” Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 2012 UT 66, ¶ 37, 289 P.3d 502. Thus, Mother argues, there was no prejudice to Father because her delay did not cause any difficulty in demonstrating the amount owed.[5]

¶12 But the district court made several findings to the contrary. Specifically, the district court found that the passage of time ‚contributed to [Mother]’s inability to properly and reasonably support the amount of her claims” and that the methodology she used in calculating those claims was confusing. For example, the district court pointed to Mother’s payment summary. The summary included only credit card payments that she made directly to the daycare provider, which was the children’s private school. As a result, the ledger did not clearly allocate expenses between basic tuition and after-school care, nor did it reflect any adjustment to distinguish between basic child care and enrichment programs. Likewise, it did not account for any cash payments Father might have made after 2002.[6]

¶13 Additionally, and contrary to what Mother suggests, showing a lack of prejudice involves demonstrating more than a mere ability to approximate the amount Father owes. Based on its finding that Father was never informed of the increased daycare expense, the district court held that Father was prejudiced because he never had the opportunity to object or to collaborate with Mother to find a less expensive daycare provider. Indeed, Father might well have assumed, in the absence of timely notice of an increase in daycare expenses, that the shift in daycare provider did not entail an increase in expense worth mentioning. In sum, we conclude that the district court supported its conclusion with adequate findings and therefore did not err in concluding that Mother’s unreasonable delay prejudiced Father.

¶14 In our previous opinion, we recognized that laches could be a viable defense, if supported with appropriate findings of fact. Such findings were made here.[7] The district court provided adequate findings that support its conclusion that Mother unreasonably delayed her action to recover amounts that allegedly became due many years ago and that her delay prejudiced Father. Accordingly, the district court did not erroneously apply the doctrine of laches to Mother’s claim for reimbursement of daycare expenses.

¶15      Affirmed.

VOROS, Judge (concurring in the result):

¶16 I concur in the judgment of the court but on an alternative ground. See Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (“[A]n appellate court may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record . . . .” (citation and internal quotation marks omitted)). I would affirm on the ground that Mother’s claim is barred by section 78B-12-214 of the Utah Code.

¶17 Section 214 provides, “In the absence of a court order to the contrary, the parent [who incurs childcare expenses] shall notify the other parent of any change of child care provider or the monthly expense of child care within 30 calendar days of the date of the change.” Utah Code Ann. § 78B-12-214(2)(b)(ii) (LexisNexis 2012). A parent who fails to comply with this requirement ‚may be denied the right . . . to recover the other parent’s share of the expenses.” Id. § 78B-12-214(3).

¶18 The district court found that “there was nothing presented to the Court indicating that any increased child care expense was ever communicated” to Father. Mother thus did not, to paraphrase section 214, notify Father of the change in the monthly expense of child care within 30 calendar days of the date of the change. This failure to notify satisfies section 214’s factual predicate. In addition, the court determined that Mother should be denied the right to recover Father’s share of expenses incurred before April 2005. Therefore, although the district court found section 214 persuasive rather than dispositive, I would affirm its judgment under that section.

¶19 This resolution of the appeal is, I believe, the most straightforward and analytically sound. For example, it would allow us to sidestep the analysis required by F.M.A. Financial Corp. v. Build, Inc., 404 P.2d 670, 672 (Utah 1965), referring to ‚the practically invariable rule that laches cannot be a defense before the statutory limitation has expired,” and Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 18, 321 P.3d 1021, holding that “that rule is not absolute.” In addition, it is not crystal clear to me that Insight Assets permits application of the doctrine of laches in this case; that opinion states that ‚[t]he doctrine of laches may apply in equity, whether or not a statute of limitation also applies and whether or not an applicable statute of limitation has been satisfied.” Id. (alteration in original) (emphasis added) (citation and internal quotation marks omitted). The emphasized language requires us, I believe, to resolve whether the district court here applied the doctrine of laches “in equity.” I am not confident that it did. But I am confident that section 214 authorized the district court’s judgment. I would therefore affirm on that ground.

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[1] Alexandra Mareschal, a law school graduate who had not yet been admitted to the Utah Bar, presented oral argument on behalf of Appellant under rule 14-807 of the Utah Rules of Judicial Administration. See Utah R. Jud. Admin. 14-807(d)(3)(F).

[2] . See Utah Code Ann. § 78B-5-202(6)(a)(i) (LexisNexis Supp. 2016) (providing that ‚[a] child support order . . . may be enforced . . . within four years after the date the youngest child reaches majority”). Although this statute has been amended, the changes are inconsequential in the context of this case. Therefore, for ease of reference, we cite its most recent codification.

[3] By focusing on laches, we adhere to the analytical framework employed in our prior opinion and the law of the case established there and relied upon by the district court on remand. In so doing, we do not reject the alternative route to affirmance explained by Judge Voros in his separate opinion.

[4] We also reject Mother’s contention that the application of an equitable defense to a legal claim violates the separation of powers doctrine. Cf. Miller v. French, 530 U.S. 327, 340 (2000) ([W]e should not construe a statute to displace courts’ traditional equitable authority absent the ‘clearest command’ or an ‘inescapable inference’ to the contrary[.]”) (citations omitted).  

[5] In relation to this argument, Mother asserts that the district court clearly erred by barring the recovery of daycare expenses before April 2005 but allowing their recovery thereafter. According to Mother, no facts in the record “support the apparently arbitrary cutoff date.” But Father has expressly acknowledged—below and on appeal—that he is not challenging the recovery of expenses after that date. Accordingly, there is no dispute as to those amounts, and we have no occasion to discuss this contention further.

[6] While Mother disputed this contention, Father insisted he might have made some payments in cash, which possibility the district court deemed impossible to confirm or dispel because of the passage of time.

[7] The district court’s thoughtful and systematic findings of fact and conclusions of law are appreciated. The ‚redline‛ style that the court used in amending the order Mother proposed made it easy for us to discern what the court actually found as opposed to what the drafting party hoped it would find.

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