BLANK

Category: Daycare

The Father of My Child Has Visitation Rights Ordered by Court, Yet He Will Be in a Different State During His Visitation Time, but Wants His Aunt to Take Over. Do I Have to Allow His Aunt Visitation While He’s on Vacation?

This is a good question and one that arises frequently in one form or another; a parent either can’t or won’t provide personal care and supervision of the parties’ children his/her scheduled parent-time or custody yet does not want the other parent to care for the children in his/her absence.

Some parents try to pull this stunt because either 1) they are territorial about “my time” with the children and thus can’t stand the idea of the other parent caring for the children during “my time”; or 2) they maliciously want to deny the other parent the opportunity to provide this care for the children. Others try to pull this stunt because they are afraid they will lose the child custody or parent-time they were awarded if they allow the other parent the opportunity to provide care for the children (yet believe that if someone else provides the care that somehow makes retaining custody and parent-time more “secure”). This is wrong, and is something you can take to the court to complain about and seek new court orders to remedy.

But sometimes a parent occasionally wants to leave the children in the care of someone else for perfectly reasonable, even laudable reasons, such as wanting the kids to enjoy time with grandma and grandpa or with the cousins, a sleepover at a friend’s house, and things like that. Clearly, it’s not defensible if it is the rule and not the exception, but there is nothing wrong with this on occasion. Indeed, refusing to be flexible and to allow a parent to do this for your kids is unfair to your kids.

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

https://www.quora.com/The-father-of-my-child-has-visitation-rights-ordered-by-court-yet-he-will-be-in-a-different-state-during-his-visitation-time-but-wants-his-aunt-to-take-over-do-I-have-to-allow-his-aunt-visitation-while-he-s-on/answer/Eric-Johnson-311

Tags: , , , , , , ,

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

Tags: , , , , , , ,

In Utah is there a minimum age at which minor children can be left at home or allowed to walk to school by themselves?

No. There is no minimum age at which child can be left unsupervised in Utah. Child and Family Services uses the following definition to evaluate each situation:

Non-Supervision – The child is subjected to accidental harm or an unreasonable risk of accidental harm due to failure to supervise the child’s activities at a level consistent with the child’s age and maturity. Included below is a link to the Utah department of child and family services’ frequently asked questions page for more information.

https://dcfs.utah.gov/resources/faq/

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

Tags: , , , , , , ,

S.B. 122 just passed! So what? Joint equal physical custody.

S.B. 122 (4th Substitute) passed by the Utah State Legislature March 5, 2021!

Who should care and why?

  • The elephant in the room is this: if there is no gender bias/sexual discrimination that is preventing fit, able, worthy fathers from being awarded joint equal physical custody, then why A) did so many people (not only a huge number of men, but women who sympathize with these men and with the plight of men in child custody disputes generally) and B) the overwhelming majority of Utah legislators pass a law to address and, it is hoped, eliminate that bias.
  • If you are a parent (particularly a father) who is worried about having child custody or parent time reduced to minimal levels in your divorce or other kind of child custody case, then for the sake of your children and your relationship with them, you need to know what S. B. 122 means for you and your children.

What will S.B. 122’s passage into law do? It will make it easier to make a case for an award of joint equal physical custody of children. Again, this is especially important to fathers who have historically faced a strong culture of bias and prejudice in the legal system.

Finally! But all is not total sunshine and roses—read on to learn why.

Bottom line: This new joint equal custody option is better than what we had in the past and should make it easier to win a joint equal custody award, but we’re still going to run into parents and commissioners and judges who simply cannot accept the idea of joint equal physical custody. So get your hands on as much proof (proof, as opposed to mere evidence; meaning: objective, independently verifiable facts) as you possibly can to satisfy § 30-3-35.2 factors if you hope to get joint equal physical custody awarded.

S.B. 122:

  • amends Utah Code § 30-3-34 to provide for a new “parent-time” schedule option that, if implemented, would result in the children spending equal periods of time annually with each parent.
  • creates a new code section, § 30-3-35.2, which, if the court orders its application in a child custody case, would result in the parents sharing overnights with the children equally on an annual basis.
  • Amends § 78B-12-208 to provide for how child support is calculated under a § 30-3-35.2 equal custody schedule.

Portions of the changes S.B. 122 bring to the child custody scene are highlighted (in some cases “lowlighted”) in red text because they are important to know about.

NEWLY CREATED § 30-3-35.2 READS AS FOLLOWS:

30-3-35.2. Equal parent-time schedule.
(1) (a) A court may order the equal parent-time schedule described in this section if the court determines that:

(i) the equal parent-time schedule is in the child’s best interest;
(ii) each parent has been actively involved in the child’s life; and
(iii) each parent can effectively facilitate the equal parent-time schedule.

(b) To determine whether each parent has been actively involved in the child’s life, the court shall consider:
(i) each parent’s demonstrated responsibility in caring for the child;
(ii) each parent’s involvement in child care;
(iii) each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

(iv) each parent’s assistance with the child’s homework;

(v) each parent’s involvement in preparation of meals, bath time, and bedtime for the child;
(vi) each parent’s bond with the child; and
(vii) any other factor the court considers relevant.

(c) To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

(i) the geographic distance between the residence of each parent and the distance between each residence and the child’s school;
(ii) each parent’s ability to assist with the child’s after school care;
(iii) the health of the child and each parent, consistent with Subsection 30-3-10(6);
(iv) the flexibility of each parent’s employment or other schedule;
(v) each parent’s ability to provide appropriate playtime with the child;
(vi) each parent’s history and ability to implement a flexible schedule for the child;
(vii) physical facilities of each parent’s residence; and
(viii) any other factor the court considers relevant.

(2) (a) If the parties agree to or the court orders the equal parent-time schedule described in this section, a parenting plan in accordance with Sections 30-3-10.7 through 30-3-10.10 shall be filed with an order incorporating the equal parent-time schedule.

(b) An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.
(c) Under the equal parent-time schedule, neither parent is considered to have the child the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).
(d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.
(e) (i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

(ii) For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).

(3) (a) Unless the parents agree otherwise and subject to a holiday, the equal parent-time schedule is as follows:

(i) one parent shall exercise parent time starting Monday morning and ending Wednesday morning;
(ii) the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and
(iii) each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.

(b) The child exchange shall take place:

(i) at the time the child’s school begins; or
(ii) if school is not in session, at 9 a.m.

(4) (a) The parents may create a holiday schedule.

(b) If the parents are unable to create a holiday schedule under Subsection (4)(a), the court shall:

(i) order the holiday schedule described in Section 30-3-35; and
(ii) designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.

(5) (a) Each year, a parent may designate two consecutive weeks to exercise uninterrupted parent-time during the summer when school is not in session.

(b) (i) One parent may make a designation at any time and the other parent may make a designation after May 1.

(ii) A parent shall make a designation at least 30 days before the day on which the designated two-week period beings.

(c) The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.
(d) The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.

THE AMENDMENTS TO § 30-3-34 ARE:

30-3-34. Parent-time — Best interests — Rebuttable presumption.
(1) If the parties are unable to agree on a parent-time schedule, the court may:

(a) establish a parent-time schedule [consistent with the best interests of the child.]; or

(b) order a parent-time schedule described in Section 30-3-3530-3-35.130-3-35.2, or 30-3-35.5.
(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time
33     schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be [presumed to be in the best interests of the child unless the court determines that Section 30-3-35.1 should apply. The parent-time schedule shall be] considered the minimum parent-time to which the noncustodial parent and the child shall be entitled [unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon one or more of the following criteria:].
(3) A court may consider the following when ordering a parent-time schedule:
(a) whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

*****

(5) A court may not order a parent-time schedule unless the court determines by a preponderance of the evidence that the parent-time schedule is in the best interest of the child.

NEWLY AMENDED § 78B-12-208 READS AS FOLLOWS:

 78B-12-208.Joint physical custody — Obligation calculations.

In cases of joint physical custody, the base child support award shall be determined as
follows:

(1) Combine the adjusted gross incomes of the parents and determine the base combined child support obligation using the base combined child support obligation table.
(2) Calculate each parent’s proportionate share of the base combined child support obligation by multiplying the base combined child support obligation by each parent’s percentage of combined adjusted gross income. The amounts so calculated are the base child support obligation due from each parent for support of the children.
(3) (3) [IfSubject to Subsection 30-3-35.2(2)(e)(ii), if the obligor’s time with the children exceeds 110 overnights, the obligation shall be calculated further as follows:
(a) if the amount of time to be spent with the children is between 110 and 131 overnights, multiply the number of overnights over 110 by .0027, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor’s payment as determined by Subsection (2) to arrive at the obligor’s payment; or
(b) if the amount of time to be spent with the children is 131 overnights or more, multiply the number of overnights over 130 by .0084, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor’s payment as determined in Subsection (3)(a) to arrive at the obligor’s payment.

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

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

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.

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

————————————————————

[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.

Click to listen highlighted text!