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Category: Procedure and Evidence

Thorup v. Thorup – 2024 UT App 93

Thorup v. Thorup – 2024 UT App 93
THE UTAH COURT OF APPEALS

MONA THORUP, Appellee, v. MARCUS THORUP, Appellant.

Opinion No. 20220583-CA Filed July 5, 2024

Third District Court, Salt Lake Department

The Honorable Amy J. Oliver

Commissioner Joanna Sagers

No. 204906416

Jonathan G. Winn, Attorney for Appellant, Jenna Hatch, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1        In this case, we are asked to consider whether the district court properly allocated—as between a divorcing couple—the equity in the house in which the couple lived during their marriage. In particular, Marcus Thorup challenges the court’s determination that substantial portions of the value of the house, which was originally his separate property, became commingled into the marital estate. We find merit in many of Marcus’s arguments, and therefore reverse the court’s equity allocation order and remand the case for further proceedings.

BACKGROUND

¶2        Marcus and Mona Thorup married in 1986.[1] Eleven years later, in 1997, they moved into a new house (the House) built—at the apparent cost of $445,000—by Marcus’s father’s construction company. For the next seven years, the House was titled in the name of Marcus’s father’s company, and Marcus and Mona lived there rent-free. During some of this time, Marcus and Mona obtained a homeowners insurance policy that listed both of them as “owners” of the House, even though that was not actually the case. And for a year or so around 1997, Mona’s mother lived in a separate apartment on the property, and she paid Marcus and Mona some $13,000 that went toward the costs associated with building the separate apartment.

¶3        In May 2004, Marcus’s father (through his company) “gifted” the House to Marcus “as an inheritance.” Thereafter, title to the House was in Marcus’s name; Mona was never placed on title. In December 2004, Marcus used the House as collateral for a $150,000 loan. Marcus later testified that the proceeds from the loan were not spent on the House but, instead, were spent on marital matters, such as medical bills, credit card bills, some other unspecified “investments,” and a payment on the couple’s “cabin lot.” Over the next ten years, the loan was fully repaid, entirely with marital funds.

¶4        Between 1997 and 2020, Marcus, Mona, and their children lived in and maintained the House. They also made some improvements to the House over that time. For purposes of this dispute, Marcus retained an expert who determined that the out-of-pocket cost of the family’s improvements had been $12,171, and that the family’s maintenance of and improvements to the House “contributed about $20,000 to its current value.”

¶5        In 2020, Mona filed this divorce action and asked (among other things) that the House and all its equity be awarded to her. Marcus responded by filing a counterclaim in which he contended that the House was an “inheritance from his father” and was his “separate property.” This dispute eventually worked its way to trial, and the parties agreed, by written stipulation, to resolve the issue by way of an “informal custody trial” before a domestic relations commissioner, a procedure usually limited to resolution of custody disputes and whose parameters are set forth in rule 4-904 of the Utah Code of Judicial Administration. Under this procedure, the parties agreed to “present[] their case[s]” to the commissioner, under oath, without questioning by attorneys. In addition to providing their own testimony, the parties agreed that they could each “present any documents they want[ed] the [c]ourt to consider” and that, “[a]fter the [c]ourt [had] heard from both parties,” only then would attorneys be allowed “to make legal argument.” In stipulating to this procedure, the parties agreed to “waive the normal question and answer manner of trial” and to “waive the rules of evidence,” and they agreed that “[t]he other party [could] tell the [c]ourt anything he or she feels is relevant.” The parties also waived their right to “challenge any of the documents or testimony that was considered” by the commissioner during the informal trial, and they agreed that “[t]he only issue on appeal [would] be whether the [c]ourt abused its discretion in reaching its findings and conclusions.”

¶6      During the course of the informal trial—which took place over parts of two trial days—the commissioner heard from Marcus and Mona, who testified (largely through proffer by counsel) about the events described above. In addition, the parties by stipulation submitted sworn declarations and other similar documents from other witnesses, which evidence the commissioner accepted and considered. And the parties’ attorneys made extensive arguments, both in written briefs filed prior to the trial and in oral arguments made during the trial.

¶7        Mona took the position that, even if the House was originally Marcus’s separate property, “the separate property converted into marital property during the marriage.” She made two specific arguments in this regard, asserting both (a) that she had contributed to the value of the House through maintenance and improvements, and had thereby acquired an equitable interest in it, and (b) that the House had been commingled into the marital estate. Marcus, on the other hand, took the position that the House was, and always had been, his separate property, and that it had not been commingled into the marital estate. He acknowledged that “Mona may have a contribution claim” regarding the House, but he pointed to evidence indicating that the family’s contributions had increased the value of the House by only $20,000, and he argued that, at most, Mona was therefore entitled to only $10,000 of the House’s total value.

¶8        At the conclusion of the trial, and after hearing the arguments, the commissioner made an oral ruling, determining that much of the House’s value—$150,000 of its original value, plus all of its appreciation—had been commingled into the marital estate. As support for this determination, the commissioner noted that the marital estate had repaid the $150,000 loan that used the House as collateral, and reasoned that the loan indicated “that the family in essence bought that mortgage and paid it back.” The commissioner also relied on the facts that, during the period before Marcus was gifted the House, the parties obtained homeowners insurance indicating that they were both owners of it and that Mona’s mother had paid $13,000 toward “the mother-in-law apartment being enhanced.” And the commissioner found relevant the fact that Mona had been “responsible for maintaining” the House and its “landscaping.” The commissioner also found—by averaging two appraisals—that the House was worth $312,500 in 2004 when it was gifted to Marcus and was worth $765,000 at the time of trial. The commissioner then concluded that Marcus should receive $162,500 ($312,500 minus $150,000) as his separate property, and that the parties would split the remaining $602,500 equally.

¶9        The commissioner’s oral ruling was later encapsulated in written findings of fact and conclusions of law and a decree of divorce, which documents were signed by the assigned district court judge.

ISSUES AND STANDARDS OF REVIEW

¶10 Marcus now appeals, and he challenges the specific portions of the commissioner’s ruling that concern allocation of the value of the House. In particular, he takes issue with the commissioner’s determination that much of the House’s value was commingled into the marital estate. And he challenges the finding that the House was worth $312,500 in 2004.

¶11      Mona asserts that, because this case comes to us from an “informal custody trial,” the applicable standard of review is deferential and the scope of appeal is “steep and constricted.” Mona is certainly correct that, when parties agree to resolve their issues through an informal trial, they waive their right to appeal certain evidentiary issues. See Utah R. Jud. Admin. 4-904(b)(7) (stating that parties may not appeal from an informal trial on “grounds that . . . rely upon the Utah Rules of Evidence”). In this case, Marcus and Mona agreed that they would “not be able to challenge any of the documents or testimony that was considered” during the proceeding, and neither party attempts to raise any evidentiary issues on appeal. But Mona is incorrect when she asserts that the appellate standards of review—on the issues that are appealable—are any different in appeals from informal trials than they are in other cases. The court’s ultimate ruling is appealable, see id. (stating that a “final order” from an informal trial “may be appealed on any grounds” other than grounds that “rely upon the Utah Rules of Evidence”), and will be reviewed under the same appellate standards of review that are applicable in appeals from formally tried cases.

¶12      Mona resists this conclusion by pointing to language in the parties’ stipulation stating that “[t]he only issue on appeal will be whether the [c]ourt abused its discretion in reaching its findings and conclusions.” She argues therefrom that all issues in this appeal—regardless of the usual standards of review—must be reviewed for abuse of discretion. We disagree. The form the parties used to encapsulate their stipulation is a form that—in keeping with the usual usage of the informal trial procedure—is designed for custody cases. We thus interpret the form’s reference to the “abuse of discretion” standard as simply indicating that the court’s ultimate ruling regarding custody will be reviewed as per usual: for abuse of discretion. See Lobendahn v. Lobendahn, 2023 UT App 137, ¶ 18, 540 P.3d 727 (“We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” (quotation simplified)). We do not interpret the form as indicating that—for issues that are appealable—the standards of appellate review are any different in cases coming to us after an informal trial than they are in cases coming to us in the usual manner.

¶13      Now that we have determined that the standards of review in this appeal will be the same as in an appeal from a formally tried case, we must determine what those standards of review are. Marcus contends that both of the court’s determinations that he is here challenging—regarding commingling and the House’s value in 2004—are conclusions of law properly reviewed for correctness. Mona, on the other hand, asserts that these determinations are factual and reviewed for abuse of discretion or clear error. We agree with Mona.

¶14      “[District] courts are in the best position to determine whether property is marital or separate, and we defer to their findings of fact [in this regard] unless clearly erroneous.” Thompson v. Thompson, 2009 UT App 101, ¶ 10, 208 P.3d 539; see also Lindsey v. Lindsey, 2017 UT App 38, ¶ 26, 392 P.3d 968 (“We generally defer to a [district] court’s categorization and equitable distribution of separate property and uphold its determinations in that regard unless a clear and prejudicial abuse of discretion is demonstrated.” (quotation simplified)). Thus, we review a district court’s factual findings in this regard for clear error, and we review for abuse of discretion its ultimate determination of whether a particular item is separate or marital property.

¶15      And this same standard of review also applies to the more specific question of whether the House was commingled into the marital estate. See Dahl v. Dahl, 2015 UT 79, ¶ 143, 459 P.3d 276 (reviewing a commingling ruling for abuse of discretion); Oliekan v. Oliekan, 2006 UT App 405, ¶¶ 18–19, 147 P.3d 464 (same). A court’s determination that a piece of originally separate property has been commingled into the marital estate is just a particular way of determining that the property is marital (rather than separate) property.

¶16      Finally, we also apply a deferential standard of review to Marcus’s challenge to the court’s finding regarding the value of the House in 2004. See Marroquin v. Marroquin, 2019 UT App 38, ¶ 10, 440 P.3d 757 (“We defer to [a] district court’s findings of fact related to property valuation and distribution unless they are clearly erroneous.” (quotation simplified)); see also Rothwell v. Rothwell, 2023 UT App 50, ¶ 33, 531 P.3d 225 (“A district court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” (quotation simplified)), cert. denied, 537 P.3d 1011 (Utah 2023).

ANALYSIS

¶17 We first discuss Marcus’s challenge to the court’s ruling that much of the House’s value had been commingled into the marital estate. We then turn to Marcus’s challenge to the court’s finding that the House was worth $312,500 in 2004.

I. The House: Separate or Marital Property?

¶18      On the question of whether and to what extent the House constitutes marital property, we begin by discussing what is at issue in this appeal and—notably—what is not at issue in this appeal. Neither party challenges the court’s determination that the House was originally Marcus’s separate property when title was placed in his name in 2004. The court awarded Marcus $162,500, intended to represent the original value of the House in 2004, less the later loan amount. The basis for this award, as we understand it, was the commissioner’s (at least implicit) determinations that the House was Marcus’s separate property in 2004 and that Marcus is entitled to keep his separate property to the extent it was not commingled or subject to an equitable contribution made by Mona. No party challenges that portion of the commissioner’s ruling.

¶19 Marcus does challenge two other aspects of the commissioner’s ruling regarding the House’s status as separate or marital property. First, Marcus challenges the commissioner’s determination that $150,000 of the original value of the House— the amount of the December 2004 loan—had been commingled into the marital estate. Second, Marcus takes issue with the determination that the appreciation, over time, in the value of the House became commingled into the marital estate. We discuss these two challenges, in turn, after first setting forth applicable legal principles regarding separate property and commingling.

A. Background Legal Principles

¶20      One of the tasks courts often face in adjudicating divorce cases is making an equitable division of the marital estate between the divorcing spouses. Our supreme court has described this property-division process as follows:

Before a district court distributes marital assets, it must (1) identify the property in dispute and determine whether it is marital or separate property, (2) consider whether there are exceptional circumstances that overcome the general presumption that marital property be divided equally, (3) assign values to each item of marital property so that a distribution strategy can be implemented, and (4) distribute the marital assets consistent with the distribution strategy.

Dahl v. Dahl, 2015 UT 79, ¶ 121, 459 P.3d 276 (quotation simplified). Marcus’s first challenge concerns the first step in this process: assessing whether a particular piece of property—here, the House—is marital property that belongs to the marital estate or is instead separate property that belongs to him alone.

¶21 “Marital property ordinarily includes all property acquired during [the] marriage, whenever obtained and from whatever source derived.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 31, 392 P.3d 968 (quotation simplified). Separate property, on the other hand, includes each spouse’s “premarital property”— that is, property owned by one spouse prior to the marriage—as well as “gifts[] and inheritances” received by a spouse during the marriage. See id.see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (stating that courts should “generally award property acquired by one spouse by gift and inheritance during the marriage . . . to that spouse”).

¶22      Property determined to be part of the marital estate will be divided equitably—and presumptively equally—between the divorcing spouses. See Lindsey, 2017 UT App 38, ¶ 32 (“The presumption is that marital property will be divided equally . . . .”). But separate property “will not be divided at all,” id., and will “generally” be awarded, “together with any appreciation or enhancement of its value,” to the spouse whose separate property it is, see Mortensen, 760 P.2d at 308; see also Lindsey, 2017 UT App 38, ¶ 32 (“Equity generally requires that each party retain the separate property he or she brought into the marriage, including any appreciation thereof.” (quotation simplified)).

¶23      In some situations, however, property that begins as one spouse’s separate property can lose its separate identity and become part of the marital estate. See Mortensen, 760 P.2d at 308; see also Lindsey, 2017 UT App 38, ¶ 33 (stating that, sometimes, “circumstances warrant an equitable override of the separate-property retention rule”). Our case law has identified three such situations: (1) where “separate property has been commingled” into the marital estate, Lindsey, 2017 UT App 38, ¶ 33; (2) where “the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it,” Mortensen, 760 P.2d at 308; and (3) “in extraordinary situations when equity so demands,” Lindsey, 2017 UT App 38, ¶ 33.

¶24 First, with regard to commingling, one rather obvious situation in which commingling occurs is where “one spouse has contributed all or part of the property to the marital estate with the intent that it become joint property.” See Dahl, 2015 UT 79, ¶ 143. But even short of an outright intended contribution, property that started out as separate property may be considered commingled if it becomes inextricably and untraceably intertwined with marital assets. See id. (“[P]remarital property may lose its separate character where the parties have inextricably commingled it with the marital estate . . . .”). Quite important to any commingling analysis, then, is whether the property in question has retained “its separate character.” See id. And this inquiry often turns on whether the property’s separate identity can still be traced or accounted for. See Mortensen, 760 P.2d at 307 (stating that property is commingled when it “completely loses its identity and is not traceable”); see also Pusey v. Pusey, 728 P.2d 117, 119 (Utah 1986) (upholding a district court’s determination that property was commingled because “it could not trace any assets to any source”). Indeed, in one case we phrased the relevant question as whether the property at issue “became so commingled that [it] could not be segregated” from the marital estate, and we determined that it had not, because “the marital and premarital interests were reasonably capable of being determined” and “it was still possible to trace and separately identify” the separate property. Oliekan v. Oliekan, 2006 UT App 405, ¶¶ 20–23, 147 P.3d 464. Thus, separate property will be considered commingled when it has been mixed in with marital assets to such a degree that it is no longer reasonably possible to distinguish between the separate and marital property. On the other hand, if “the marital and premarital interests” are still “reasonably capable” of being traced and identified, then the separate property retains its separate nature and will not be considered commingled. See id.

¶25 Second, “under the contribution exception, a spouse’s separate property may be subject to equitable distribution when the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it.” Lindsey, 2017 UT App 38, ¶ 35 (quotation simplified). “This exception may be satisfied when one spouse brings assets into the marriage and the other spouse’s prudent investment of those assets substantially increases their value, or when marital funds are expended or marital debt is incurred for the benefit of one spouse’s separate property.” Id. (quotation simplified). “Under such circumstances, one spouse’s effort or investment may render the other spouse’s underlying asset, its appreciated value, or some portion thereof subject to equitable distribution.” Id.

¶26      Third, there exists a catch-all exception for situations—not covered by either of the first two exceptions—in which “extraordinary circumstances . . . warrant a departure from the presumptive rule.” Henshaw v. Henshaw, 2012 UT App 56, ¶ 15, 271 P.3d 837. This exception is rarely applied; we have stated that the “bar for establishing an extraordinary situation is high, traditionally requiring that invasion of a spouse’s separate property is the only way to achieve equity.” Lindsey, 2017 UT App 38, ¶ 46 (quotation simplified).

¶27 During the informal trial, Mona made arguments under the first two of these exceptions, arguing that—even if the House was Marcus’s separate property in 2004 when it was gifted to him—at least part of the House’s value became part of the marital estate due to commingling or due to the family’s equitable contribution. The commissioner accepted Mona’s commingling argument, and therefore opted not to consider whether, or to what extent, Mona had acquired an equitable interest in the House through contributions.

B. The $150,000 Loan

¶28      The first part of the commissioner’s commingling analysis with which Marcus takes issue is the ruling that $150,000 of the House’s original value became commingled into the marital estate. In December 2004, some seven months after the House was gifted to Marcus, he used the House as collateral for a $150,000 loan, and that loan was fully repaid, over the next ten years, with marital funds. The commissioner determined that, given these facts, “the marital estate paid for that portion of the [H]ouse directly by paying off the mortgage,” and ruled that the amount of the House’s original value collateralized by the loan ($150,000) was marital property rather than Marcus’s separate property.

¶29 We acknowledge the facial appeal of the commissioner’s ruling: the fact that the marital estate paid the loan back certainly makes it look like the estate might have acquired an interest in the House. But our supreme court has made clear that a separate asset does not necessarily become marital property simply because a marital estate pays back a loan drawn from that asset. See Dahl v. Dahl, 2015 UT 79, ¶¶ 142–145, 459 P.3d 276. At a minimum, more analysis is required in order to reach that conclusion.

¶30 In Dahl, a husband had possessed certain retirement accounts (IRAs) “prior to his marriage” that were his “separate property.” Id. ¶ 142. During the marriage, the husband “withdrew funds from the IRA[s] to pay off a home equity loan secured by the marital home and then replenished the funds using a marital bank account.” Id. The wife contended that, by this action, the husband had “commingled” the IRAs with marital assets and thereby “converted [them] to marital property.” Id. ¶¶ 142, 144.

¶31      Our supreme court rejected the wife’s argument, holding that the husband’s actions did not cause the IRAs to lose “their separate identity.” Id. ¶ 144. In the court’s view, the transaction was “best characterized as a loan from [the husband] to the marital estate, which was in turn repaid with marital funds.” Id. On the facts presented in Dahl, there was “nothing . . . suggesting that [the husband] intended to commingle his IRA funds with the marital estate.” Id. And the court held that the IRAs “did not become so inextricably commingled into the marital estate that the district court was incapable of tracing [them].” Id. (quotation simplified). In summary, the court noted that the IRAs did not lose their “separate identity simply because [the husband] made a loan from [the IRAs] to pay off a home equity loan.” Id. ¶ 145.

¶32 The lesson of Dahl, as relevant here, is that when one spouse uses his or her separate property to facilitate a loan to the marital estate, the proceeds from that loan are used to benefit the marital estate, and the marital estate pays the loan back with marital funds, the separate property used to facilitate the loan does not, simply by virtue of the loan, become commingled into the marital estate.

¶33 Marcus asserts that Dahl is materially indistinguishable from this case. As he sees it, he facilitated a loan to the marital estate using his own separate property—the House—as collateral, and the marital estate was obligated to pay that loan back just like it would have needed to pay off a loan collateralized in any other way. He asserts that—just like the transaction in Dahl—nothing about this transaction indicates any intent on his part to commingle the House with the marital estate. And he notes— correctly—that this loan did not render a factfinder incapable of tracing his separate property. We find Marcus’s arguments at least potentially persuasive, and we note that Mona (in her appellate brief) did not cite Dahl and made no effort to rebut Marcus’s argument that Dahl is controlling here.

¶34      We agree with Marcus that the commissioner’s analysis is at odds with Dahl.[2] The commissioner’s analysis on this point was quite brief, and simply assumed that, because the marital estate repaid the $150,000 loan amount, it had “paid for that portion of the [H]ouse directly.” As noted, it does not necessarily follow, simply from the fact that the marital estate repaid the loan, that the asset that facilitated the loan—here, the House—became commingled into the marital estate. See id. ¶ 144.

¶35 The question of whether repayment of the loan by the marital estate resulted in commingling turns on whether the proceeds of the loan were used for marital-estate purposes unrelated to the House or were, instead, used to increase the value of the House. If the proceeds were used—as they were in Dahl— entirely for marital-estate purposes unrelated to the asset leveraged for the loan, then Marcus is correct that the situation here would be materially indistinguishable from Dahl, and the transaction would be “best characterized as a loan . . . to the marital estate” facilitated by Marcus’s separate property. See id. On the other hand, if the loan proceeds were used to improve the House, the marital estate’s repayment of that loan might accurately be said to have resulted in the marital estate “[paying] for that portion of the [H]ouse directly,” a situation that might support a determination that commingling (or, alternatively, acquisition of an equitable interest) had occurred.

¶36      On the question of what the loan proceeds were used for, the commissioner made no findings. Marcus testified that the loan proceeds were spent not on the House (or on any other personal endeavors of Marcus) but on marital things, such as medical and credit card bills, other unspecified “investments,” and a payment on the couple’s “cabin lot.” But neither in the oral ruling made at the conclusion of the informal trial nor in the written ruling issued thereafter did the commissioner make any specific findings about either the credibility of Marcus’s testimony on this point or about whether any of the loan proceeds were spent on the House.[3]

¶37 In the end, we view the commissioner’s analysis as incomplete. Because the reason the commissioner gave for determining that the loan amount had been commingled does not necessarily support that conclusion, and because the commissioner did not make certain factual findings necessary to complete the analysis, we must reverse the commissioner’s determination that $150,000 of the House’s original value was commingled into the marital estate, and we remand the matter to the district court for further proceedings on this point.

C. The House’s Appreciation

¶38 The second part of the commissioner’s commingling analysis with which Marcus takes issue is the ruling that all of the House’s appreciation since 2004—an amount the commissioner determined to be $452,500 ($765,000 minus $312,500)—was no longer Marcus’s separate property because it had been commingled into the marital estate. As support for this ruling, the commissioner cited (a) the homeowners insurance policies acquired before Marcus owned the House that listed both Marcus and Mona as “owners,” (b) Mona’s testimony that she was responsible for maintaining the House and its landscaping, and (c) the fact that Mona’s mother had paid $13,000 toward “a mother-in-law apartment” in the late 1990s. Even applying a deferential standard of review, we agree with Marcus that the commissioner committed an abuse of discretion in so ruling.

¶39 We begin our analysis by repeating the long-established legal principle that, ordinarily, appreciation on separate property belongs not to the marital estate but, rather, to the spouse whose separate property it is. Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (stating that separate property, “together with any appreciation or enhancement of its value,” belongs to the separate spouse); Keyes v. Keyes, 2015 UT App 114, ¶ 28, 351 P.3d 90 (“In most cases, equity requires that each party retain the separate property that he or she brought into the marriage, including any appreciation of the separate property.” (quotation simplified)); Thompson v. Thompson, 2009 UT App 101, ¶ 12, 208 P.3d 539 (“An award of separate property includes its appreciation during the marriage.”); Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct. App. 1990) (“Inherited or donated property, as well as its appreciated value, is generally regarded as separate from the marital estate and hence is left with the receiving spouse in a property division incident to divorce.”).

¶40      This general rule—that a spouse should receive his or her separate property, together with any appreciation—may be varied on the basis of commingling, but only when it is clear that the spouse intended to contribute the property to the marital estate, or when it becomes functionally impossible to trace or account for the separateness of the spouse’s property. See Oliekan v. Oliekan, 2006 UT App 405, ¶¶ 20–23, 147 P.3d 464 (stating that the question in commingling cases is whether the property “became so commingled that [it] could not be segregated” from the marital estate, and determining that commingling was not present because “the marital and premarital interests were reasonably capable of being determined” and because “it was still possible to trace and separately identify” the separate property); see also Dahl, 2015 UT 79, ¶ 143 (“[P]remarital property may lose its separate character where the parties have inextricably commingled it with the marital estate, or where one spouse has contributed all or part of the property to the marital estate with the intent that it become joint property.”).

¶41 Commingling occurs most commonly with money, because dollars are fungible and, when separate money is deposited into the same account as marital money, it can become difficult to tell which dollar is which. See, e.g.Pusey v. Pusey, 728 P.2d 117, 119 (Utah 1986) (affirming a district court’s finding “that throughout the marriage [the husband] had commingled corporate and personal funds so that [the court] could not trace any assets to any source”). Yet even money will not be considered commingled if the separate property funds can be identified and traced. See, e.g.Oliekan, 2006 UT App 405, ¶ 23 (affirming a district court’s determination that no commingling had occurred because “it was still possible to trace and separately identify the funds” at issue); accord Arnason v. Arnason, 2002 UT App 243U, para. 2.

¶42 Real property is easier to trace than money, and it is therefore perhaps not as common for commingling to occur with regard to real property as it is with money. Cf. Dahl, 2015 UT 79, ¶ 146 (“A spouse can maintain the separate identity of premarital [real] property by utilizing section 1031 exchanges to avoid commingling separate property with marital property.”). But it is at least conceivable that separate real property—or at least the proceeds therefrom—can become commingled into a marital estate. For instance, in one case we concluded that, where proceeds from the sale of separate property (including real property) had been “deposit[ed] into the parties’ joint accounts” and thereby lost its separate identity, commingling had occurred. Dunn v. Dunn, 802 P.2d 1314, 1321 (Utah Ct. App. 1990). And in other cases, we have observed that, where significant or substantial marital assets are invested to support, maintain, or improve separate real property, commingling may have taken place. Keiter v. Keiter, 2010 UT App 169, ¶ 23, 235 P.3d 782 (stating that “expending marital funds toward otherwise separate real estate supports a determination of commingling that may convert separate property into marital property”); Schaumberg v. Schaumberg, 875 P.2d 598, 603 (Utah Ct. App. 1994) (affirming a district court’s determination that commingling of the “appreciated portion” of a husband’s separate real property had occurred where the parties had “used substantial marital funds to maintain and augment” the property).

¶43 In this case, however, the House was never sold, and therefore no proceeds from any sale were ever deposited into a marital account. And there was no evidence presented that the parties invested significant sums of marital money into supporting, maintaining, or otherwise improving the House. Here, tracing the separate nature of the House, including the appreciation in its value, is fairly obvious, and we see no evidence indicating that the House ever lost its separate identity.

¶44 In particular, we find the evidence upon which the commissioner relied unpersuasive and entirely unsupportive of a determination that all appreciation of the House after 2004 was commingled into the marital estate. Two of the three items upon which the commissioner relied—that both Marcus and Mona appeared as “owners” on homeowners insurance policies, and that Mona’s mother paid $13,000—occurred prior to 2004, before Marcus even owned the House. These items therefore have extremely limited value in the analysis, and they simply do not point to any commingling of post-2004 appreciation.

¶45      The other item upon which the commissioner relied—the fact that Mona had been involved in some of the maintenance of the House, especially the landscaping—is likewise insufficient to support a determination that the entirety of the House’s appreciation was commingled into the marital estate. As noted above, the investment of substantial marital assets into separate real property can support a determination that the separate property was commingled. See Keiter, 2010 UT App 169, ¶ 23; Schaumberg, 875 P.2d at 603. But here, no such evidence was presented; Mona did not offer evidence of any specific monetary contributions, nor did she attempt to provide many particulars about the nature of her landscaping and other contributions.[4] One spouse’s residence at, and assistance with the day-to-day maintenance of, the other spouse’s separate real property will not usually be enough to render the entirety of that property’s appreciation commingled into the marital estate. Under the circumstances presented here, we conclude that Mona’s rather non-specific contributions to maintenance and landscaping are insufficient to support a determination that the entirety of the House’s appreciation was commingled into the marital estate.

¶46      That is not to say that such contributions are irrelevant to the ultimate separate-or-marital-property analysis. As noted, Mona also made an argument, at the informal trial, that she had made an equitable contribution to the value of the House that should be recognized under the contribution exception to the general rule that separate property goes to the individual spouse. While Mona’s evidence is insufficient to support a determination that the entirety of the House’s appreciation was commingled into the marital estate, such evidence might be sufficient to support a determination that Mona made an equitable contribution to the House that ought to be quantified and recognized in the distribution of marital property.

¶47 Accordingly, we conclude that the commissioner committed an abuse of discretion in determining, on this record, that the entirety of the House’s appreciation had been commingled into the marital estate, and we therefore reverse that determination. We remand the matter, however, so that the district court might have an opportunity to consider Mona’s alternative argument—not reached by the commissioner—that she made an equitable contribution to the value of the House that should be considered in the distribution of the marital estate.

II. The House’s 2004 Value

¶48      Marcus also challenges the court’s finding that the value of the House, when it was gifted to him in 2004, was $312,500. Marcus argues that the House’s value was actually $445,000—the amount his father’s construction company spent to build it. On this record, however, we conclude that the court’s finding is supported by competent evidence and that the commissioner therefore did not commit clear error in making it.

¶49      When a court is asked to value real property, it may do so in any one of several ways, depending on the evidence presented. Certainly, one way to value a house is to assess how much it cost to build it. See Carter v. Sorenson, 2004 UT 33, ¶ 2, 90 P.3d 637 (referring to the “traditional appraisal methods” as “the cost approach, the income approach, and the sales comparison approach”). But more commonly, appraisers value residential real property using a “comparable sales” approach, in which they attempt to “locate and analyze sales of ‘comparable’ properties . . . between a willing buyer and a willing seller in which the sale price is determined by market forces.” See Utah Dep’t of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 40, 275 P.3d 208.

¶50      During the informal trial, Marcus presented evidence that his father’s construction company spent $445,000 to build the House in the 1990s. Had that been the only evidence presented at trial, Marcus may have a credible argument that the court committed clear error by not adopting that methodology in assessing the House’s 2004 value. But that was not the only evidence presented at trial. Marcus also presented an appraisal of the House, as of May 2004, that applied a comparable-sales methodology; the first draft of that appraisal valued the House at $285,000, and an “amended draft” valued it at $340,000. The court found, based on this evidence, that the best indication of the value of the House in 2004 was an “averag[e] of the two values proposed by” Marcus’s appraiser, which is $312,500.

¶51      This finding is amply supported by evidence in the record and is therefore not clearly erroneous. See Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” (quotation simplified)). We therefore reject Marcus’s challenge to the court’s finding that the House was worth $312,500 when it was gifted to him in 2004.

CONCLUSION

¶52      We reject Marcus’s challenge to the court’s factual finding regarding the value of the House in 2004. But we sustain Marcus’s challenges to the court’s commingling determination, and specifically to its rulings that (a) $150,000 of the House’s original value was commingled and (b) the entirety of the House’s post-2004 appreciation was commingled. We therefore reverse the court’s equity allocation order, and we remand the case to the district court for further proceedings, consistent with this opinion, regarding the use to which the parties put the 2004 loan proceeds and regarding Mona’s claim to an equitable interest in the appreciation of the House under the contribution exception.

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


[1] Because the parties share the same last name, we use their first names for clarity, with no disrespect intended by the apparent informality.

[2] In fairness to the commissioner, Marcus did not cite Dahl during the informal trial. But this does not present a preservation problem, because litigants are permitted to cite new authority for the first time on appeal to support arguments regarding issues properly raised below. See Patterson v. Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828 (“[W]e routinely consider new authority relevant to issues that have properly been preserved . . . .”). In this instance, the parties raised the relevant issue at the informal trial—whether $150,000 of the House’s original value was commingled into the marital estate—and are therefore entitled to bring new authority to our attention on appeal bearing on this preserved issue.

[3] At the conclusion of the informal trial, the commissioner stated that some of the loan proceeds were “used to pay some medical bills for” Mona. It is unclear from the record whether this statement constituted an oral factual finding or merely a musing on the part of the commissioner, and no such finding appears in the written ruling. In any event, we are unaware of any statements or findings, written or oral, made by the commissioner about whether any of the loan proceeds were used on the House.

[4] The best evidence of Mona’s contributions appears to be found in her answer to a written interrogatory from Marcus that asked her to “detail” all her contributions to the House. In that answer, she stated generally that she “maintained and upkept” the House and “was in charge of maintaining the yard.” She also described other remodeling and maintenance activities, such as helping to repaint, retile, and redecorate various rooms in the House. But she made no effort—whether in that interrogatory response or otherwise—to quantify her efforts in dollars, and she did not hire an appraisal expert to assess any increase in value to the House that her efforts might have brought about or to rebut Marcus’s appraisal expert’s conclusions in that regard.

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2024 UT App 91 – In re R.D. – Juvenile Court Jurisdiction – Parental Presumption

2024 UT App 91 – In re R.D.

THE UTAH COURT OF APPEALS

IN THE INTEREST OF R.D. AND Z.J., PERSONS UNDER EIGHTEEN YEARS OF AGE.

K.J., Appellant, v. N.J. AND A.J., Appellees.

Opinion No. 20220798-CA Filed June 27, 2024, Second District Juvenile Court, Ogden Department

The Honorable Debra J. Jensen No. 1174368

K. Andrew Fitzgerald, Attorney for Appellant, Jason B. Richards, Attorney for Appellees Martha Pierce, Guardian ad Litem

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 A mother and her children were in the company of the mother’s boyfriend as he allegedly robbed a business. The children had recently been adjudicated as abused by their father, who was living with the mother at the time of the abusive events, and were thus under the jurisdiction of the juvenile court. Fearing that this latest incident might result in the children being placed in foster care, the mother sent the children to her parents in Texas. The children have been in Texas ever since. After the children moved in with them, the grandparents intervened in the juvenile court case and petitioned the court for guardianship and custody, which the court granted. The mother now appeals, asserting, in addition to other claims of error and ineffective assistance of counsel, that the juvenile court lacked jurisdiction to grant the guardianship and custody. We affirm on all grounds.

BACKGROUND[1]

¶2 K.J. (Mother) has two children (the Children) by the same man (Father)—a girl born in December 2015 and a boy born in January 2018.

¶3 In October 2018, law enforcement was dispatched to a disturbance at the family home. Father was intoxicated, had become “destructive,” and was “not making much sense.” Father transported to the hospital. Within a few days of this incident, Mother sent the Children to live with her parents, N.J. and A.J. (Grandparents), in Texas, where they stayed about three months.

¶4 In February 2019, law enforcement was again dispatched to the family home. Father was again found intoxicated, and he had locked Mother out of the residence. It was reported that Father would “jump on” Mother and “shake her.”

¶5 In April 2019, law enforcement responded to a call involving aggravated assault at the family home. Father was yet again intoxicated, and he had pushed Mother into a wall of their apartment, an action that knocked her to the ground. Father had then grasped Mother from behind and had begun hitting her, giving her a bloody nose. Father had also choked Mother, causing her to nearly lose consciousness. The Children were present during this assault.

¶6 A few days after this incident, having received a referral regarding the Children, the Utah Division of Child and Family Services (DCFS) initiated a home visit. Mother admitted that law enforcement had been called to the home due to Father’s “drinking and getting out of control.” But she “minimized the domestic violence incidents,” noting that that she could usually get the Children to bed and sleeping so they would not hear any of the parents’ arguments. Mother asked the DCFS caseworker to tell Father that she still wanted “to be with him,” but the caseworker advised Mother that doing so would be a violation of a no contact order that was in place. And as the caseworker was leaving the home, Mother said, “So what [you are] saying is the best thing I can do is go to court next week and ask for the no contact order to be dropped?” The caseworker responded that was not what was being communicated, and she discussed with Mother “the concerns of her failure to protect the [C]hildren from the ongoing domestic violence.” Mother responded that she just wanted to speak with Father.

¶7 About a week later, DCFS spoke with Father, who was at this point incarcerated. He admitted that there had been a “scuffle” in which he had “knocked” Mother in the nose but claimed there had only been one physical altercation between the two of them.

¶8        In May 2019, DCFS initiated proceedings, pursuant to Utah Code section 80-3-201(1), by filing a petition for protective supervision services (PSS petition) that alleged the Children were abused, neglected, or dependent.[2] Mother and Father both entered rule 34(e) pleas in response to the allegations contained in the PSS petition. See Utah R. Juv. P. 34(e) (“A respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.”).

¶9 In July 2019, the juvenile court determined that the Children were subject to the jurisdiction of the juvenile court and adjudicated them “abused children” by Father in that they “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence by assaulting Mother. Accordingly, the court appointed a guardian ad litem (GAL) to represent the best interests of the Children; ordered DCFS to provide protective supervision services; ordered Mother and Father to comply with a family plan that included mental health assessments, a domestic violence assessment, completion of a parenting course, and maintenance of stable housing and income; and ordered Father to complete drug and alcohol assessment and treatment. The juvenile court further ordered Mother and Father to “have no contact with each other in the presence” of the Children.

¶10 Notably, the court made a custody determination at this juncture in two respects. First, at least impliedly, it determined that the Children would remain in the custody of Mother, albeit subject to the jurisdiction of the court pursuant to the provisions of the family plan. Second, it placed severe restrictions on Father’s parent-time with the Children. Specifically, the court ordered that Father “shall not return to the family home until further order” of the court. And the court specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by the [GAL], until further order of the [c]ourt.”

¶11 Not long after the adjudication, Mother began a relationship with another man (Boyfriend). This relationship too was marked by incidents of domestic violence. In one instance, Boyfriend called police claiming that Mother tried to hit him with her car, while a witness said it was Boyfriend who jumped on the hood of Mother’s car. But a more serious incident—at least insofar as it concerned the safety of the Children—happened when Boyfriend allegedly robbed an oil-change shop while Mother and the Children were with him in Mother’s car. This prompted Mother, in October 2019, to arrange for the Children to go to Texas to live with Grandparents again. Mother was apparently “afraid that the [Children] would go to foster care if [authorities] thought [she] was involved in the robbery.” The Children have been in Texas ever since.

¶12 In June 2020, Grandparents moved to intervene in the Children’s welfare action and petitioned the juvenile court for temporary child custody. The court granted the motion and awarded them temporary custody. In an October 2020 hearing, the court changed the Children’s permanency goal to permanent custody with a relative and terminated reunification services with Mother and Father. Also in October 2020, Grandparents petitioned for permanent custody and guardianship, which was supported by the GAL. Mother and Father opposed

Grandparents’ petition. As relevant here, Mother argued that there had been a substantial and material change in her circumstances and requested the Children be returned to her custody. In December 2020, the court released DCFS from the case.

¶13 In August 2022, the juvenile court entered detailed findings, concluding that Mother had not changed her circumstances and that it was necessary for the welfare of the Children that Grandparents be awarded permanent custody and guardianship.[3]

¶14      Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Mother first contends that the juvenile court lacked jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), see generally Utah Code §§ 78B13-101 to -318, to enter custody orders in favor of Grandparents. Whether a court has jurisdiction is a matter of law reviewed for correctness. In re adoption of B.B., 2017 UT 59, ¶ 16, 417 P.3d 1.

¶16 Next, Mother argues that the juvenile court violated the Interstate Compact on the Placement of Children (ICPC), see generally Utah Code §§ 80-2-901 to -910, by failing to ensure that Grandparents were fit for custody of the Children prior to placement. “The proper interpretation and application of a statute is a question of law which we review for correctness.” In re adoption of B.H., 2019 UT App 103, ¶ 9, 447 P.3d 110 (cleaned up), aff’d, 2020 UT 64, 474 P.3d 981.

¶17 Mother next asserts that her trial counsel (Counsel) was ineffective for failing to call her therapist to testify on her behalf regarding her current mental health status. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re C.M.R., 2020 UT App 114, ¶ 11, 473 P.3d 184 (cleaned up).

¶18 Mother lastly maintains that the juvenile court erred in applying an incorrect standard of proof, arguing that the custody dispute should have been governed by the parental presumption. The application of the correct standard of proof, including the juvenile court’s “interpretation of the parental presumption, presents a legal issue, which we review for correctness.” In re A.T., 2020 UT App 50, ¶ 11, 464 P.3d 173.

ANALYSIS

I. Jurisdiction

¶19 Mother argues that the juvenile court lacked jurisdiction to consider Grandparents’ custody petition because the Children had been residing in Texas for more than six months prior to the petition. Mother’s argument is grounded in the UCCJEA, which states, in pertinent part, that

a court of this state has jurisdiction to make an initial child custody determination only if . . . this state is the home state of the child on the date of the commencement of the proceeding[] or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

Utah Code § 78B-13-201(1)(a). In developing this argument, Mother points to the definition of a child custody proceeding found in the Utah Code:

“Child custody proceeding” means a proceeding in which legal custody, physical custody, or parenttime with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

Id. § 78B-13-102(4).

¶20 From these statutory provisions, Mother argues that the PSS petition filed by DCFS did not indicate that “legal custody” or “physical custody” of the Children was at issue, asserting “the PSS petition was arguably not a ‘child custody proceeding’ for purposes” of the UCCJEA. Mother further argues that because the Children had been in Texas for more than six months by the time Grandparents petitioned for custody in June and August 2020, “Texas was the ‘home state’ of the Children under” the UCCJEA and Utah did not have jurisdiction to consider Grandparents’ custody petition.

¶21 Mother is mistaken. The statutory language makes it clear that the Utah juvenile court had jurisdiction over the custody petition. Under the plain language of the UCCJEA, Utah was the “home state” of the Children “on the date of the commencement of the proceeding” that determined child custody. See id. § 78B-13201(1)(a) (“[A] court of this state has jurisdiction to make an initial child custody determination only if . . . this state is the home state of the child on the date of the commencement of the proceeding . . . .”). And a “child custody proceeding” includes “a proceeding in which . . . parent-time with respect to a child is an issue.” See id. § 78B-13-102(4) (emphasis added).

¶22 Here, the “child custody proceeding” commenced when the juvenile court adjudicated the PSS petition. While it is true that the PSS petition—filed in May 2019 when the Children were living in Utah—did not mention legal custody, physical custody, or parent-time, it did recount three incidents of domestic violence, one of which was committed in the presence of the Children, perpetrated by Father. Based on these allegations, DCFS asked the juvenile court to adjudicate the Children “abused, neglected and/or dependent” because they had “suffered non-accidental harm or threatened harm . . . [w]hen [Father] committed domestic violence in the presence of the [C]hildren by hitting [Mother,] causing her a bloody nose, choking her, and knocking her to the ground.”

¶23 In adjudicating the PSS petition, the court specifically found that the Children were “abused” by Father in that the Children had “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence.

And, as it was allowed to do given the finding of abuse,[4] the juvenile court also made a “custody” determination—at least according to the terms of the UCCJEA—when it limited Father’s parent-time. Specifically, the juvenile court ordered that Father “shall not return to the family home until further order” of the court. And it further specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by [DCFS] and the [GAL], until further order of the [c]ourt.”

¶24 The Utah juvenile court obtained jurisdiction as soon as it entertained the PSS petition because two conditions were met. First, the PSS petition resulted in a “proceeding for . . . abuse . . . and protection from domestic violence.” Id. § 78B-13-102(4). Second, in that proceeding, “parent-time with respect to [the Children was] an issue.” Id. Accordingly, under the terms of the UCCJEA, the PSS petition gave rise to a child custody determination because parent-time—specifically with respect to Father—was “an issue.” Id. And the juvenile court had jurisdiction from that time on because Utah was the “home state of the [Children] on the date of the commencement” of the PSS petition and resulting proceeding. See id. § 78B-13-201(1)(a).

¶25 Once jurisdiction attached at the commencement of proceedings by the filing of the PSS petition, it remained intact. Mother argues the opposite—that while Utah may have had jurisdiction of the initial matters in the PSS petition, jurisdiction switched to Texas for the custody matters related to

Grandparents. We rejected a similar argument in In re A.J.B., 2017 UT App 237, 414 P.3d 552, where we stated that “once a state makes an initial child custody determination, that state obtains exclusive, continuing jurisdiction, which exists until that state relinquishes or is divested of its exclusive jurisdiction in accordance with the UCCJEA or a similar act.” Id. ¶ 16 (cleaned up). Because the juvenile court never relinquished its jurisdiction over the case here, “whether pursuant to section 207 of the UCCJEA or any other statute,” it retained jurisdiction over the Children. See id.see also Utah Code § 78B-13-207(1) (“A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.”).

¶26 In sum, the Utah juvenile court’s jurisdiction commenced on the filing of the PSS petition—which alleged abuse, neglect, and dependency due to domestic violence—and resulted in limitations on Father’s parent-time. Accordingly, Mother’s first claim of error fails.

II. ICPC Violation

¶27 Mother next contends that the juvenile court also violated the ICPC by failing to ensure that Grandparents were fit for custody before placing the Children with them.[5]

¶28 The purpose of the ICPC is to ensure that “[e]ach child requiring placement” receives “the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide necessary and desirable care.” Utah Code § 80-2-905 art. I(1). The ICPC also allows the “appropriate authorities in a state where a child is to be placed [to] have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.” Id. § 80-2-905 art. I(2). Moreover, the ICPC ensures that the “proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made.” Id. § 80-2-905 art. I(3).

¶29 By its own terms, the ICPC is oriented toward facilitating interstate placements in the context of anticipated adoptions coordinated by state authorities or private agencies, a point that it makes explicitly clear:

This compact shall not apply to . . . [t]he sending or bringing of a child into a receiving state by [the child’s] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or . . . guardian and leaving the child with any such relative or nonagency guardian in the receiving state.

Id. § 80-2-905 art. VIII(1). Thus, the ICPC exempts parents from the requirement of ascertaining the suitability of the placement if the parent is sending the child to one of the identified relatives or guardians.

¶30 Here, Mother is the one who sent the Children to stay with Grandparents, a point about which there is no disagreement. Mother sent the Children to live with Grandparents after a criminal episode allegedly committed by Boyfriend in the presence of the Children because she was concerned that her alleged involvement in the incident might lead to the placement of the Children in foster care. Thus, the sending of the Children to live with Grandparents was voluntarily and directly done by Mother while the Children were in her custody. It was only later, after Grandparents petitioned for custody due to Mother’s persistent instability and ongoing involvement in relationships plagued by domestic violence, that the juvenile court entered custody orders for Grandparents. And by this time, the Children were physically living in Texas.

¶31 The provisions of the ICPC that work to ensure the suitability of the placement to which a child is sent simply do not apply here because Mother herself sent the Children to live with Grandparents long before they petitioned for custody. Accordingly, Mother’s second claim of error fails.

III. Ineffective Assistance

¶32 Mother’s next claim is that she received ineffective assistance when Counsel failed to call her therapist to testify “as to her current mental health status in terms of her ability to parent the Children effectively.” Mother argues that having her therapist testify would have shown that “she was actively engaged in and had never stopped working on her mental health issues/concerns,” thus allowing the juvenile court “to make better informed decisions” about her parenting abilities.

¶33 Parents are entitled to the effective assistance of counsel in child welfare proceedings. See In re. E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (recognizing an implicit guarantee of effective assistance of counsel in a proceeding to terminate the fundamental right of parenting one’s children); see also Utah Code § 78B-22-201(1)(b). “To prevail on an ineffective assistance of counsel claim, Mother must show that (1) Counsel’s performance was deficient and (2) this deficient performance prejudiced the defense. Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address Mother’s claims under either prong.” In re C.M.R., 2020 UT App

114, ¶ 19, 473 P.3d 184 (cleaned up). For the deficiency prong, Mother must demonstrate “that, considering the record as a whole, Counsel’s performance was objectively unreasonable.” In re R.G., 2023 UT App 114, ¶ 16, 537 P.3d 627. “In other words, Mother must show that . . . Counsel rendered a deficient performance in some demonstrable manner, and that Counsel’s performance fell below an objective standard of reasonable professional judgment.” In re C.M.R., 2020 UT App 114, ¶ 20 (cleaned up).

¶34 Here, Counsel had an easily discernable strategic reason to refrain from calling Mother’s therapist to report on her current mental health progress. The record indicates that the juvenile court made findings that Mother had been untruthful throughout the proceedings and was not taking her mental health treatment seriously. Specifically, the court found that Mother (1) had not “internalized her treatment”; (2) was not “truthful with [DCFS], her treatment providers, her parents, or the [c]ourt”; (3) did not disclose domestic violence incidents involving Father; (4) claimed that she “was fully engaging in her individual counseling and being honest with her therapist” while also admitting through her testimony that she was “not fully honest [with her therapist] about the extent of her contact” with Boyfriend; and (5) was “vague” in stating that she did not know if she was present when Boyfriend committed the robbery with the Children in the car. The court also stated that “[b]ecause of [Mother’s] dishonesty to the [c]ourt for nearly two years,” it had no way of knowing whether Mother was currently in contact with Boyfriend. And it concluded, “She has continued to violate [c]ourt orders, . . . and she continues to not understand the dangerous situation she puts [the Children] in when bringing people around them with violence and drug use problems.”

¶35 Knowing of Mother’s serious credibility problems— problems obviously well known to the court—Counsel had a sound strategic reason not to call her current therapist as a witness. Mother’s ongoing pattern of lying, not following court orders, and failing to internalize her therapy would have given Counsel little reason to suspect that anything had changed with respect to her behavior. Counsel might well have feared that calling her current therapist would have, at best, done nothing to help Mother’s case or, more likely, compounded the honesty concerns that already plagued her.

¶36 Moreover, Counsel would have legitimate concerns about what might be revealed on cross-examination. While limiting exposure of inconsistencies that would exacerbate Mother’s credibility issues might be possible on direct examination, Counsel would have no such control over the direction of questioning on cross-examination, where opposing counsel would certainly take the opportunity to highlight Mother’s already glaring credibility issues.

¶37 Because Counsel had a strategically reasonable basis for not calling the therapist as a witness, Mother’s ineffective assistance claim necessarily fails.

IV. Burden of Proof

¶38 Mother’s final assertion is that the juvenile court applied the incorrect standard for the post-adjudication hearing. More specifically, Mother argues that the court “applied the wrong standard by requiring proof” from Grandparents of what was necessary for the welfare of the children, see Utah Code § 78A-6357(4)(a), rather than considering the more demanding parentalpresumption standard. The parental presumption means that “where one party to [a custody dispute] is a nonparent, there is a presumption in favor of the natural parent, even if an ordinary best-interest inquiry would come out in favor of the nonparent.” In re A.T., 2020 UT App 50, ¶ 12, 464 P.3d 173 (cleaned up).

Parental Presumption

¶39 Mother was not entitled to the parental presumption. Our supreme court has expressly stated that “the parental presumption does not apply . . . to cases brought before the juvenile court on abuse, neglect, or dependency petitions. In such cases, the petition alone is sufficient to overcome the parental presumption for purposes of adjudicating the allegations in the petition.” In re K.F., 2009 UT 4, ¶ 69, 201 P.3d 985 (cleaned up); accord In re A.S.A., 2012 UT App 151, ¶ 3, 279 P.3d 419. And “in cases in which abuse, neglect, or dependency is established, the usual parental presumption that prevents the State (a nonparent) from intervening in parental decision-making no longer applies, and the State (supervised by the juvenile court) may take custody of children, even over their parents’ objections, and place them appropriately.” In re A.T., 2020 UT App 50, ¶ 14.

¶40 Here, not only had DCFS filed a petition alleging abuse, neglect, or dependency, but the juvenile court had actually adjudicated the Children as abused. This court long ago observed that “the legislature has determined, as evidenced by the statutory scheme, that in cases involving a petition alleging the abuse, neglect, or dependency of a child, the parental presumption does not apply. . . . The legislature has determined that abuse or neglect of a child at the hands of a parent, or dependency of a child, is incompatible with the presumption that the child is best served by being in the parent’s custody.” In re J.M.V., 958 P.2d 943, 948 (Utah Ct. App. 1998). Since the Children had been so “adjudicated and the court had continuing jurisdiction over them, it was also within the court’s dispositional authority to vest legal custody” in DCFS or in another appropriate person. See In re S.F., 2012 UT App 10, ¶ 44, 268 P.3d 831 (cleaned up); see also Utah Code § 80-3-405(1)– (2) (“Upon adjudication . . . , [t]he juvenile court may vest custody of an abused, neglected, or dependent minor in [DCFS] or any other appropriate person . . . .”). Thus, Mother’s parental presumption didn’t apply because the juvenile court exercised continuing jurisdiction over the Children after the adjudication, which allowed the court “to impose any of the dispositional choices available to it.” See In re M.J., 2011 UT App 398, ¶ 56, 266 P.3d 850; see also In re S.A., 2016 UT App 191, ¶ 6, 382 P.3d 642 (“The adjudication of a child as dependent, neglected, or abused forms the basis for juvenile court jurisdiction, thereby making all of the dispositional options . . . available to that court.”).

¶41 In sum, after the juvenile court’s adjudication pursuant to Mother’s entry of a rule 34(e) plea in response to the allegations of abuse, neglect, or dependency contained in the PSS petition, Mother was not entitled to invoke the parental presumption.

Burden of Proof

¶42 Even deprived of the parental presumption, Mother argues that the juvenile court held her “to a higher standard than required under the rules for her to modify a temporary order of custody,” thereby shifting the burden to her rather than keeping it with Grandparents. It appears that Mother is arguing that the juvenile court erred not in applying the wrong burden of proof to Grandparents—namely “by clear and convincing evidence”—but that it applied that same standard to her as well. But because Mother was not entitled to the parental presumption, the question becomes what standard of proof the juvenile court should have applied to Mother’s petition to modify or restore custody.

¶43 Mother’s petition to modify or restore custody was considered along with Grandparents’ petition for custody. The juvenile court recognized that modifications to custodial orders are generally “treated as disposition hearings and subject to the preponderance of the evidence standard.” However, because DCFS was no longer a party to this case at this point, the juvenile court determined that it was “more similar to a custody dispute between a parent and non-parent.” And given this circumstance, the court concluded that the dispute “should proceed at the clear and convincing standard of proof for all parties.”

¶44 It appears that the juvenile court applied the wrong standard of proof to Mother’s petition to modify or restore custody. Modifications of an interim order, which was the procedural situation here, are governed by rule 47 of the Utah Rules of Juvenile Procedure. See Utah R. Juv. P. 47(b)(2)–(3), (c) (providing the process for modification of prior dispositional orders). And the burden of proof employed in imposing “any of the dispositional choices” available to the juvenile court, In re M.J., 2011 UT App 398, ¶ 56, is the preponderance of the evidence standard, cf. Utah R. Juv. P. 41(c) (“[M]atters regarding child custody, support, and visitation certified by the district court to the juvenile court must be proved by a preponderance of the evidence . . . .”).

¶45 While Mother may be right that the clear and convincing standard should not have been applied to her petition to modify, she has made no showing that an application of the correct standard of proof—preponderance of the evidence—would have resulted in a better outcome. Thus, any error of the juvenile court as to the standard of proof has not been shown to have prejudiced Mother. Cf. In re L.B., 2015 UT App 21, ¶ 6, 343 P.3d 332 (per curiam) (“Harmless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.” (cleaned up)); accord In re A.M., 2009 UT App 118, ¶ 21, 208 P.3d 1058.

¶46 First, Mother makes no showing that Grandparents failed to demonstrate that it was in the Children’s best interest to award them permanent custody and guardianship. Thus, the application of the wrong standard of proof—which was more rigorous in any case—was largely irrelevant to Grandparents’ ability to prove their case.

¶47 Moreover, the juvenile court entered extensive factual findings. Based on these findings, the court concluded that Mother had “not changed her circumstances,” making it unnecessary to conduct an examination of the Children’s best interests with regard to Mother’s petition to modify custody. Such an examination was unnecessary because a change of circumstance is necessary to restore custody to a parent whose legal custody has been transferred by the juvenile court. See Utah Code § 78A-6-357(3)(b) (“A parent or guardian may only petition the juvenile court [for restoration of custody] on the ground that a change of circumstances has occurred that requires modification or revocation in the best interest of the child or the public.”). Mother has not challenged the court’s finding that she has not changed her circumstances. Nor has she made any attempt to show how the court’s application of a less rigorous burden of proof would have made a difference in its determination that a consideration of the Children’s best interests was unnecessary given the lack of the change in circumstances.

¶48 Because Mother has not demonstrated how this alleged error regarding the increased burden of proof prejudiced her, this claim fails.

CONCLUSION

¶49 Mother’s challenge to the jurisdiction of the Utah juvenile court fails because the court’s jurisdiction commenced with the filing of the PSS petition, which resulted in limitations on Father’s parent-time and the continued jurisdiction of the juvenile court. Mother’s claim that the juvenile court violated the ICPC fails because she voluntarily sent the Children to live with Grandparents. Mother’s ineffective assistance claim falls short for lack of deficient performance. And the parental presumption was unavailable to Mother owing to the juvenile court’s jurisdiction over the Children, so Mother has not demonstrated prejudice on her burden-of-proof claim.

¶50      Affirmed.

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


[1] We limit our discussion to “those background facts necessary to resolve the issues on appeal.” Blosch v. Natixis Real Estate Cap., Inc., 2013 UT App 214, ¶ 2 n.2, 311 P.3d 1042 (cleaned up). And we recite the evidence in a light most favorable to the juvenile court’s findings. See In re adoption of B.H., 2020 UT 64, n.2, 474 P.3d 981.

[2] While courts and practitioners frequently refer to a petition for protective supervision services, see, e.g., In re M.J., 2011 UT App 398, ¶ 2, 266 P.3d 850; In re T.M., 2003 UT App 191, ¶ 2, 73 P.3d 959, the term does not formally exist in the juvenile code. Instead, Utah Code section 80-3-201(1) states that “any interested person may file an abuse, neglect, or dependency petition.” The PSS petition filed by DCFS in this case referenced section 78A-6-304, which has since been renumbered and amended as section 80-3201. See Act of Mar. 3, 2021, ch. 261, § 64, 2021 Utah Laws 1752, 1799–800.

[3] The court found that while Father had met the burden of proof showing a change in circumstances, a change of custody was nevertheless in the best interest of the Children.

[4] A custody determination is implicit in a petition asking a juvenile court for a finding of abuse, which is precisely what DCFS presented here. The statute does not require a talismanic invocation of the words “custody” or “parent-time,” because it is presumed that once a finding of abuse is reached, custody or parent-time will naturally be addressed. Indeed, section 80-3-405 states that the “juvenile court may vest custody of an abused, neglected, or dependent minor in [DCFS] or any other appropriate person.” See Utah Code § 80-3-405(1)–(2).

Moreover, that DCFS did not mention “custody” or “parent-time” in the PSS petition did not deprive the juvenile court of jurisdiction, because the petition is not where the issue (continued…) must arise for a proceeding to become a “[c]hild custody proceeding.” See id. § 78B-13-102(4). The statute merely says that a child custody proceeding “includes a proceeding for,” among other things, “neglect, abuse, dependency,” or “protection from domestic violence, in which the issue” of “legal custody, physical custody, or parent-time with respect to a child . . . . may appear.”

Id.

[5] Grandparents argue that this challenge is unpreserved, an assertion that has some merit. However, “if the merits of a claim can easily be resolved in favor of the party asserting that the claim was not preserved, we readily may opt to do so without addressing preservation.” State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (cleaned up). “[B]ecause we can easily dispose of” Mother’s ICPC claim on its “merits, we choose to exercise our prerogative to simply assume that [it was] preserved and proceed to consideration of the merits.” Id.

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Wilson v. Wilson, 2024 UT App 87 – civil stalking injunction, appeals

Wilson v. Wilson – 2024 UT App 87

THE UTAH COURT OF APPEALS

TKS CO-PACK MANUFACTURING, LLC AND TROY WILSON, Appellants and Cross-appellees, v. DOUG WILSON, Appellee and Cross-appellant.

Opinion No. 20210855-CA Filed June 6, 2024 Fourth District Court, Provo Department

The Honorable Robert A. Lund

The Honorable James R. Taylor

No. 200401547

Michael D. Stanger, Scarlet R. Smith, and R. Jesse Davis, Attorneys for Appellants and Cross-appellees Brady Brammer and Brenton Ranck, Attorneys for Appellee and Cross-appellant, assisted by law student Annie Carmack[1]

JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred, with the exception of Part II.B.2.b. JUDGE HARRIS authored a separate opinion regarding Part II.B.2.b, which JUDGE ORME joined.

LUTHY, Judge:

¶1        This opinion addresses a number of issues related to civil stalking injunctions. It also addresses the requirements for judgments as set forth in rule 58A of the Utah Rules of Civil Procedure and the range of discretion given to district courts when deciding whether voluntary dismissal under rule 41(a) of the Utah Rules of Civil Procedure should be granted with or without prejudice.

¶2        Troy Wilson is the president and co-owner of TKS Co-Pack Manufacturing, LLC (TKS). He hired his brother Doug Wilson to work at TKS. After a time, Doug[2] left TKS. Subsequently, Troy and TKS (collectively, the TKS parties) filed a complaint against Doug, which contained several tort claims as well as a request for a civil stalking injunction. With their complaint, the TKS parties also filed a motion for an ex parte civil stalking injunction, an ex parte temporary restraining order, and a preliminary injunction. The district court granted a temporary stalking injunction, and Doug then filed an answer and counterclaims. Doug later asked that his counterclaims be dismissed, and they were dismissed without prejudice.

¶3        After an evidentiary hearing, the district court issued a permanent civil stalking injunction (the Stalking Injunction) against Doug and in favor of Troy. The Stalking Injunction also protected “[a]ny customer of TKS” and “[a]ny employees of TKS.” Subsequently, Doug posted on Facebook about the Stalking Injunction and communicated with a prior TKS customer (Prior Customer). The TKS parties then filed a motion requesting that Doug be held in contempt for violating the Stalking Injunction. The district court held another evidentiary hearing, applied the standard for criminal contempt, found that Troy had not established the alleged violations beyond a reasonable doubt, and denied Troy’s motion.

¶4        In the meantime, the TKS parties had also moved to dismiss their tort claims without prejudice. Doug opposed the motion and moved for dismissal of the claims with prejudice. The court dismissed the tort claims without prejudice.

¶5        The TKS parties appeal the district court’s decision not to hold Doug in contempt. Doug also appeals, asserting that the Stalking Injunction was not properly granted in the first place and that the district court erred by dismissing the TKS parties’ tort claims without prejudice.[3]

¶6        As to Doug’s appeal, we conclude that the district court did not err in issuing the Stalking Injunction and that the court did not abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. As to the TKS parties’ appeal, we unanimously affirm the district court’s determinations to apply the criminal standard in the contempt proceedings and to not hold Doug in contempt for communicating with Prior Customer. Additionally, based on Judge Harris’s separate opinion, which is joined by Judge Orme, we also affirm the district court’s determination to not hold Doug in contempt based on the allegation that his Facebook post and related comments violated the Stalking Injunction.

BACKGROUND
Pre-litigation History

¶7        Troy offered Doug, who was then living in California, a job at TKS, a business in which Troy held a 50% interest. Doug moved to Utah and began working at TKS as a production manager. After about a year and a half, Doug left TKS in mid-2020. Following Doug’s departure, Troy received reports from TKS employees that Doug had allegedly behaved inappropriately toward multiple employees while he worked there.

¶8        Doug then began working for TKS’s landlord (Landlord), a company that had its office in the same building as TKS. In his new role, Doug continued to have interactions with TKS employees that the TKS parties believed were harassment. Thus, Troy emailed Landlord to request that it appoint another of its employees as a point of contact for TKS. TKS also terminated the employment of several of its employees who it believed were attempting to sabotage TKS at Doug’s request.

The TKS Parties’ Complaint

¶9        In October 2020, the TKS parties filed a complaint against Doug, requesting a civil stalking injunction and asserting seven tort claims: tortious interference with employment relationships, tortious interference with customer relationships, tortious interference with government relationships, tortious interference with the landlord-tenant relationship, defamation, tortious infliction of emotional distress, and trespass. The TKS parties alleged, among other things, that after Doug left TKS, he had

·        driven a forklift “into TKS’s roll up door”;

·         convinced several TKS employees to help him fabricate safety violations by TKS by doing such things as staging pictures to make it look like TKS was violating workplace safety regulations;

·         convinced several TKS employees to sabotage TKS by doing such things as putting “grease on a brand new filter that was being used in production”;

·         attempted to falsely “blow the whistle” on TKS by reporting that TKS was transporting CBD without a permit when TKS had such a permit;

·         persuaded Landlord that TKS “was dumping paint and other toxic items into the sewer,” resulting in Landlord terminating TKS’s lease and then reinstating it after another company was identified as the source of the dumping; and

·         continued to harass TKS employees by confronting them for speeding and using a roundabout improperly, “overzealously monitor[ing]” them, “sexually harass[ing] female employees, both on site . . . and via text and phone,” and telling “an employee of TKS that he now knows ‘why Cain killed Abel.’”

The TKS parties asserted that “[t]hese actions by Doug [had] caused Troy and other employees of TKS to fear for their safety and alter their commuting patterns in an attempt to avoid a confrontation with Doug.”

Temporary Civil Stalking Injunction

¶10 With their complaint, the TKS parties also filed a motion for an ex parte civil stalking injunction, an ex parte temporary restraining order, and a preliminary injunction. In that motion, the TKS parties alleged many of the details recounted above and requested that the district court “issue a stalking injunction against Doug and issue an injunction in the form of a Temporary Restraining Order and preliminary injunction enjoining Doug from having any contact with any TKS employee (including Troy) or customer, and to stay away from Troy’s home, and to stay out of TKS’s facilities.” The district court issued an ex parte civil stalking injunction on October 27, 2020.

Doug’s Suicide Attempt

¶11 Three days later, Doug attempted suicide, prompting the TKS parties to move to modify the temporary stalking injunction in light of Doug’s alleged actions during that episode. Specifically, the TKS parties alleged that Doug had come with a shotgun in his car to the building that housed TKS and Landlord, that he had gone into the building and left a suicide note, and that he had “then [gone] to the mountains with the intent of taking his own life.” The TKS parties further alleged that Doug had “eventually [been] talked out of killing himself, . . . placed in police custody, and then transferred to a hospital.” They continued, “After being released from the hospital, Doug has returned to work. This is problematic as Doug and Troy both work in the same building and the [temporary stalking injunction] specifically orders Doug to ‘stay away’ from Troy’s work.” The TKS parties explained that law enforcement had “declined” to remove Doug from his workplace because the temporary injunction identified as protected premises “the suite . . . of the building instead of the building itself.” Accordingly, the TKS parties sought an amendment that would clarify that the term “‘stay away’ includes but is not limited to staying away from the building and the parking lot.” They also requested “language specifically stating that Doug is prohibited from possessing a firearm.”

Doug’s Answer and Counterclaims

¶12      In November 2020, Doug filed both an answer to the TKS parties’ complaint and several counterclaims. He asserted that the allegations against him were based on “speculation and rumors” and that he “was distraught over being accused of sexual misconduct.” He also recited the severe impact the allegations were having on his health, job, and marriage. Doug’s complaint then recounted Doug’s attempt to end his life:

On October 30, 2020[,] Doug Wilson left a suicide note at his . . . desk [in Landlord’s office]. The note read:

“To my family I love you all with everything I have. I feel like there is no other way out of where Troy has put me. I do not have the will or strength to fight. I have come to the end of the line. Forgive me. I want no funeral and no burial. Cremate me and take my ashes anywhere. Kids I love you so much. Everything I own I give to my wife, the house, the belongings, everything.” —Douglas Wilson.

He did not have any shotgun at the time he left the note. He left [Landlord’s office], obtained a shotgun and went to the mountains with intent to take his own life.

Doug’s complaint relayed how he encountered hunters in the mountains, he voluntarily surrendered the gun to them, and they called the police to help him. It further stated that the police had noted, “Douglas believes [his family] would be better off without him because his brother Troy is going to make him lose his job so he can’t support them.” (Alteration in original.) Doug’s complaint then asserted counterclaims of intentional infliction of emotional distress, defamation/libel/slander, interference with economic and employment relations, and wrongful use of civil proceedings. Doug later voluntarily dismissed his counterclaims, purportedly at the behest of his mother. His counterclaims were dismissed without prejudice.

Permanent Civil Stalking Injunction

¶13 In December 2020, the district court held an evidentiary hearing on the motion for a civil stalking injunction. After hearing evidence and arguments, the court first identified incidents that it felt did not provide grounds for making the stalking injunction permanent. Specifically, it said that the allegation that Doug left the suicide note with the intent to harm Troy was “extreme” and “unlikely” and that “[t]he placement of the note at [Doug’s] work” did not evidence “an intent to direct that note or the activity that was . . . intended toward either . . . [TKS] or [Troy].” The court also said that it did not interpret Doug’s reference to Cain and Abel “as a threat to commit bodily harm.” And it reasoned that Doug’s efforts to “enforce parking restrictions” were not “necessarily retaliatory toward . . . the company . . . or Troy . . . or directly committed in a way that intended . . . either physical harm or emotional distress to Troy.”

¶14      The district court then identified evidence that it felt did support a permanent stalking injunction. It first pointed to conversations that Doug had engaged in with his and Troy’s sister (Sister). The court characterized those conversations as Doug communicating, “I will ruin Troy. I will contact customers. I will bring the company down. . . . [T]hey will lose the business. They’ll lose everything.” The court said, “That’s personal, that’s harmful; and that evinces an intent to . . . cause emotional distress to a specific person, which is what’s required by the statute.” The court then pointed to a text message Doug sent to a person (Vendor) who works for another company owned by Troy and is frequently on site for TKS. After Vendor had a conversation with a TKS employee while at the TKS plant, Doug texted Vendor asking what the pair had been talking about. The court observed, “[Doug] create[d] the impression that he’s all-knowing, that . . . he sees. He create[d] a sense of unease and discomfort. And that is fearful, and that is emotionally frightening. And that can upset the workings of a company and . . . create a cloud of suspicion and distrust for the company.” Finally, the court pointed to a conversation between Doug and Vendor during which Doug “suggested that he was going to go to . . . [a] customer [of TKS] and tell them how their . . . product [was] being handled,” which the court said “undermine[d] the wellbeing of the company.” The court concluded by saying that these incidents showed that “Doug engaged in this conduct in order to bring . . . [Troy] down” and “in order to cause distress and ruin the company.” Based on these incidents, the court said, “[I’m] satisfied to a preponderance that there is a course of action, that it was directed in such a way that although it was aimed at the company, [it] was aimed at the company in a particularly harmful way and that it satisfies the requirements of the stalking [statute].”

¶15      The district court further explained that because it did not consider the suicide-related incident to be part of the “course of conduct” required by the stalking statute, see generally Utah Code § 76-5-106.5(2)(a),[4] it was denying the TKS parties’ request that the injunction include “the firearms prescription.” The court also denied the TKS parties’ request that Doug be restricted from the building housing TKS and Landlord’s offices. Instead, it clarified that the permanent stalking injunction would restrict Doug from being involved in any direct interactions between Landlord and TKS, from entering TKS’s premises within the building, and from acting inappropriately on the surrounding premises, such as repeatedly driving around in circles, hovering, or acting with the intent to intimidate.

¶16      The district court thereafter issued the Stalking Injunction, which did not detail the facts giving rise to its issuance but stated, “For the reasons stated on the record, the Court finds that there is reason to believe that Doug Wilson has stalked Troy Wilson.” The Stalking Injunction contained both a “Personal Conduct Order” and a “No Contact Order.” The Personal Conduct Order read:

Doug is not to stalk Troy. This means that Doug must not do things such as follow, threaten, annoy, or harass Troy in a way that could cause a reasonable person to suffer emotional distress or to be afraid for the person’s safety or the safety of another person. For a legal definition of stalking, see Utah Code Ann. § 76-5-106.5.

The No Contact Order read:

Doug must not contact, phone, text, mail, email, or communicate with, either directly or indirectly in any way with Troy and any other person listed below.

The Stalking Injunction was issued in favor of Troy (not TKS) and listed as additional protected persons Troy’s spouse and children, Vendor, three named TKS employees, “[a]ny customer of TKS,” and “[a]ny employee of TKS.”

Motion for Contempt Sanctions

¶17      In March 2021, the TKS parties filed a motion to hold Doug in contempt for violating the Stalking Injunction. The judge who received and adjudicated the contempt motion was not the one who had presided over the proceedings related to the issuance of the temporary stalking injunction and the Stalking Injunction. In their contempt motion, the TKS parties alleged that Doug had violated the Stalking Injunction by making a Facebook post along with subsequent comments related to the post and by communicating with Prior Customer.

¶18      As to the Facebook post, the TKS parties identified a post by “John Dough” that read verbatim:

I have kept my mouth shut for far to long. I have listened to some of my family member bear false witness against me all in a attempt to cover up wrong doing. Had family members try to hurt me to the point to drive me to take my life. They hoped for it. Being sued because I stood up and talked out. For the first time I am appalled to be part of this family. To have family members turn their backs on me. So Christ like to take one side of a story and make it true. All that evil needs to prevale in this world is that good people do nothing. I am so glad you act like Christians.

In response to comments on this post, “John Dough” also posted two comments:

There was a law suite filed against me. I have the document. The stalking injunction was filed against me as well in court. [Sister] mislead and lied in court about what was going on and about what was said. This is why I sent out the post in the first place. You have only one side of a truth which is based in lies.

and

I am just so glad my family has both sides of the story. Oh wait they don’t. Thanks for getting my side of the story so you you have all the information.

Doug admitted that he “uses the name John Dough on Facebook.”

¶19 As to Doug’s communication with Prior Customer, the TKS parties alleged that Doug had informed Prior Customer, “[B]ecause you are a customer of Troy, I am not allowed to talk to you.” The motion ended with the TKS parties’ request that the court “impose a fine and/or incarceration.”

Dismissal of the TKS Parties’ Tort Claims

¶20      By June 2021 and before a hearing on the contempt motion, the parties had engaged in little to no discovery on the TKS parties’ tort claims, and the TKS parties moved to voluntarily dismiss those claims, stating, “Having prevailed on their 8th Cause of Action (Civil Stalking), and having been granted [the] Stalking Injunction against Doug . . . , the TKS [p]arties have obtained the primary relief sought and needed to protect Troy, his family and TKS’[s] employees and customers from Doug.”

¶21      Doug opposed granting a dismissal of the TKS parties’ tort claims without prejudice, and he moved for dismissal of the claims with prejudice. He contended that the TKS parties never “offered any initial disclosures or proof of the . . . devastating smears on Doug’s moral character,” that they did not participate in discovery though the fact discovery period would end in “less than twenty days,” and that they “should not be allowed to raise these serious allegations, idle away their time before the court, and then withdraw their claims with the intent of bringing them again some other time.”

¶22      The court held a hearing on this matter in July 2021. At the conclusion of the hearing, the court stated,

I would have found excusable delay on such a short time frame. I find that the [TKS parties] were involved with other stuff in the case even if they weren’t doing that disclosure. Had they sought additional time from me, I would have granted it. I am loath to dismiss cases. I routinely grant more time . . . for the public policy reasons [the TKS parties’ counsel] outlined about cases being resolved on the merits. So if Doug intends to re-pursue his claims, then I think that it is going to open up the necessity to hear a lot of the evidence that Troy alleges in his claims.

On September 14, 2021, the court issued a written “Order Granting Petitioners’ Motion to Dismiss and Denying Respondent’s Motion to Dismiss,” in which it dismissed the TKS parties’ tort claims without prejudice.

Hearing and Decision on the Motion for Contempt Sanctions

¶23 The following week, the court held a hearing on the contempt matter, with the judge who had not conducted the original stalking injunction proceedings presiding. The court informed the parties that “any of the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. Thus, the court limited the witnesses to giving “testimony in regards to the allegations in the contempt proceeding.” The TKS parties contended that “the question of . . . whether [Troy] suffered emotional distress [from the alleged violations of the Stalking Injunction] is context specific” and that evidence of events that occurred before the contempt action was necessary to establish “what a reasonable person in Troy’s shoes looks like.” The court indicated that it would “take judicial notice of the fact that there were prior proceedings” and “of the order that was issued by [the previous judge] and the findings that [the previous judge] made in relation to” the initial proceedings. The TKS parties noted their concern that “there was testimony underlying those orders” and “some of the facts that . . . came out [were not] necessarily memorialized in [the Stalking Injunction] itself, or in [the prior] ruling.” Doug also stated his contrary concern that Troy not be allowed to testify about matters the previous judge “found irrelevant or unpersuasive for purposes of [the Stalking Injunction].” The court then reiterated its view that “the scope of [the contempt] proceeding” was the “limited allegations of the order [to show cause].”

¶24      During the hearing, Doug did not dispute that he authored the Facebook post and related comments that the TKS parties contended violated the Stalking Injunction, nor did he dispute their contents. Also during the hearing, the court received evidence of an email Doug sent to Prior Customer in March 2021 asking Prior Customer to tell him the last date he did any business with TKS. Prior Customer responded by saying he was not a current TKS customer but that he had purchased some products from TKS a few months earlier. Prior Customer also testified that when he had initiated contact with Doug in the past, Doug had said, “[I]f you’re a TKS customer, I can’t talk to you . . . .”

¶25 The court issued an order on the contempt motion on October 13, 2021. Therein the court first explained that it was applying the standard for criminal contempt:

Because Doug Wilson has substantially complied with the [Stalking Injunction], were the court to sanction Doug Wilson, the [principal] reason would be to vindicate the court’s authority, rather than to compel future compliance. Because the court’s primary purpose would be punitive in nature, the criminal standard of proof beyond a reason[able] doubt applies to the proceeding.

¶26 The court then addressed Doug’s Facebook post and comments by turning to the language of the Stalking Injunction’s Personal Conduct Order and noting that it “contain[ed] a citation” to Utah Code section 76-5-106.5 “for the legal definition of stalking” and that “the statute contains a provision precluding an enjoined party from communicating ‘about’ the protected party.” But the court also noted that the Stalking Injunction did “not contain that language, and no evidence exist[ed] in the record that Doug Wilson ever consulted the statute.” The court then determined that “because no evidence exist[ed] [that] Doug knew speaking indirectly about Troy would violate the order, a reasonable doubt exist[ed] as to whether Doug intended the message to violate[] the order.” The court highlighted that “[n]either Troy Wilson nor any other protected party were friends on the Facebook platform with Doug Wilson at the time of his . . . posting, and Doug deleted the post and his account shortly thereafter.” “Moreover,” the court continued, “the post does not reference Troy Wilson by name, such that acquaintances unfamiliar with the details of the lawsuit would not associate Troy with the content of the post.” And the court observed that “[i]n the subsequent comments to the original post, Doug Wilson asserted that his reference to ‘my family member’ who bore ‘false witness against me’ related to [Sister]” and Sister was not “among the protected parties” of the Stalking Injunction. The court concluded that “because Troy was not a Facebook friend of Doug and because the message [did] not reference Troy by name, a reasonable doubt exist[ed] as to whether Doug intended the message to reach Troy and cause Troy emotional distress.”

¶27      The court also considered “the circumstances surrounding the case at bar,” which involved “great turmoil in the extended Wilson family” as “Doug and Troy are the youngest of 11 siblings, and the controversy was causing division and divided loyalties in the family.” Given this, the court concluded that “a reasonable doubt exist[ed] as to whether the [Facebook] post was designed to harass or annoy Troy, rather than Doug’s stated intention of determining who in the family supported him.” Also of note, the court found “that all of the witnesses from [the] Wilson family possess[ed] such significant biases that the court [could not] credit any of their testimony beyond a reasonable doubt.”

¶28 The court further determined that “a reasonable doubt exist[ed] as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post, even if the post would cause some lesser degree of annoyance.” On this front, the court stated that “[t]he only persons who commented on Doug’s Facebook post were immediate Wilson family members, and the only persons who spoke to Troy about the post were family members and a small number of employees and old family friends.” The court indicated that the evidence suggested that “all of the family members and acquaintances who viewed or learned about the post [held] Troy in high esteem and the post did not influence their perception of him.”

¶29 As to Doug’s communication with Prior Customer, the court stated that “the content” of Doug’s messages to Prior Customer raised “a reasonable doubt as to whether Doug intentionally violated the order by sending those messages or whether he merely attempted to comply with the order, by obtaining written confirmation that [Prior Customer] was not a current customer, after [Prior Customer] initiated contact with Doug.”

¶30 Ultimately, as to both the Facebook post and Doug’s communication with Prior Customer, the court ruled that the TKS parties “failed to meet the heavy burden of establishing the alleged violations beyond a reasonable doubt” and thus denied the motion to find Doug in contempt.

The Appeals

¶31 In November 2021, the TKS parties appealed the district court’s decision declining to hold Doug in contempt. Later that same month, Doug appealed the Stalking Injunction and the district court’s decision to dismiss the TKS parties’ other claims without prejudice.

ISSUES AND STANDARDS OF REVIEW
Doug’s Appeal

¶32 As an initial matter, the TKS parties assert that this court lacks jurisdiction over Doug’s appeal. “Whether this court has jurisdiction over [an] appeal is a question of law that we review for correctness.” Ashton v. Learnframe, Inc., 2008 UT App 172, ¶ 7, 185 P.3d 1135, cert. denied, 199 P.3d 970 (Utah 2008).

¶33      Besides jurisdiction, Doug’s appeal raises three issues. First, Doug asserts that the district court erred by employing a legally incorrect interpretation and application of the stalking statute when it ruled that Doug’s actions “aimed at [TKS]” could form the basis of the Stalking Injunction in favor of Troy. “The proper interpretation and application of a statute is a question of law which we review for correctness . . . .” Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (cleaned up); see also Ragsdale v. Fishler, 2021 UT 29, ¶¶ 15, 20, 491 P.3d 835 (reviewing “for correctness” the district court’s determination of whether particular actions by the respondent legally qualified as a course of conduct “directed at” the petitioner (cleaned up)).

¶34      Second, Doug challenges the district court’s finding that he knew or should have known that his actions constituting a “course of conduct” under the stalking statute would cause a reasonable person in Troy’s position to experience emotional distress. “On review of both criminal and civil proceedings, we accept the trial court’s findings of fact unless they are clearly erroneous.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988) (cleaned up), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991); see also Baird, 2014 UT 08, ¶ 16 (“When reviewing factual determinations, [appellate] court[s] will only rule as a matter of law if the evidence is so clear and persuasive that all reasonable minds would find one way.” (cleaned up)).

¶35 Finally, Doug argues that the district court erred by dismissing the TKS parties’ tort claims without prejudice. “A trial court has discretion to determine whether to grant a motion for voluntary dismissal,” and it is “entitle[d] . . . to grant or dismiss the motion upon such terms and conditions as the court deems proper.” H&H Network Services, Inc. v. Unicity Int’l, Inc., 2014 UT App 73, ¶ 4, 323 P.3d 1025 (cleaned up). Accordingly, “we review a trial court’s decision” as to granting a voluntary dismissal with or without prejudice “for an abuse of discretion.” Id. (cleaned up).

The TKS Parties’ Appeal

¶36      In their appeal, the TKS parties assert that the district court erred when it applied “the criminal standard” for contempt. They further contest the court’s determination not to hold Doug in contempt. When, as here, the alleged “contempt is not committed in the immediate view and presence of the court or judge, we review a district court’s findings of fact for clear error and apply a correction of error standard to our review of the district court’s legal determinations.” Valerios Corp. v. Macias, 2015 UT App 4, ¶ 10, 342 P.3d 1127 (cleaned up). Once a court finds the existence of facts necessary to support a contempt sanction, “the decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court’s action is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.” Anderson v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d 464 (cleaned up). “That discretion includes not just the power to decide whether a party should be held in contempt, but the power to determine whether the purpose of a particular contempt order is civil or criminal.” Dickman Family Props., Inc. v. White, 2013 UT App 116, ¶ 3, 302 P.3d 833 (cleaned up), cert. denied, 312 P.3d 619 (Utah 2013).

¶37      The TKS parties also challenge the district court’s decision to exclude from the contempt proceedings evidence of the full circumstances surrounding the incidents that gave rise to the Stalking Injunction. We review the district court’s “determinations regarding the admissibility of evidence under an abuse of discretion standard.” Anderson, 2008 UT App 3, ¶ 25.

ANALYSIS

I. Doug’s Appeal

¶38 We first address Doug’s appeal. Doug challenges the district court’s decision to issue the Stalking Injunction in the first instance. He also challenges the district court’s decision to dismiss the TKS parties’ tort claims without prejudice. For their part, the TKS parties contend that “this court lacks jurisdiction to consider [Doug’s] appeal because it was not made timely.” We begin by addressing the threshold issue of jurisdiction. We then address, in turn, Doug’s challenges to the district court’s orders.

A.        Whether This Court Has Jurisdiction

¶39 The TKS parties contend that Doug did not file a timely notice of appeal and, therefore, that this court lacks jurisdiction over his appeal. According to the TKS parties, the court’s order dismissing the TKS parties’ claims without prejudice on September 14, 2021, was a final judgment that triggered the thirty-day deadline for Doug to file a notice of appeal. Thus, the TKS parties assert, “Doug’s appeal of the principal action was due October 14, 2021—more than a month before Doug filed a notice of appeal.” We hold that the September 14 order was not a final judgment and, therefore, that it did not trigger the thirty-day deadline for Doug to file a notice of appeal. Instead, the thirty-day deadline for Doug to file a notice of appeal was triggered 150 days after the court entered the September 14 order.[5]

¶40      Rule 4 of the Utah Rules of Appellate Procedure provides that, with a few exceptions not applicable here, “in a case in which an appeal is permitted as a matter of right from the trial court to the appellate court, the notice of appeal . . . must be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Utah R. App. P. 4(a). Rule 58A of the Utah Rules of Civil Procedure requires that, again with some exceptions that are not applicable here, “[e]very judgment and amended judgment must be set out in a separate document ordinarily titled ‘Judgment’—or, as appropriate, ‘Decree.’” Utah R. Civ. P. 58A(a)—(b). Rule 58A also provides that when “a separate document is required, a judgment is complete and is entered at the earlier of” (A) when “the judgment is set out in a separate document signed by the judge and recorded in the docket” or (B) when “150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.” Id. R. 58A(e)(2).

¶41      In Griffin v. Snow Christensen & Martineau, 2020 UT 33, 467 P.3d 833, our supreme court analyzed an “Order of Dismissal with Prejudice” entered by the trial court in that case to determine whether it met the requirements of rule 58A(a) and was thus a “judgment” under that rule. Id. ¶¶ 23–28. The order had been prepared in response to a directive from the trial court to the defendant’s counsel to “draft[] a proposed order confirming the court’s oral ruling” on the defendant’s motion to dismiss. Id. ¶ 23. The supreme court held that the order did not qualify as a “judgment” under rule 58A(a). Id. ¶ 28.

¶42 The supreme court first explained that “the goal of Utah rule 58A(a) is to impose a clear line of demarcation between a judgment and an opinion or memorandum” and that “to distinguish a judgment from an order or ruling, it should be identified accordingly.” Id. ¶ 22 (cleaned up). The court then observed that the order at issue “was not titled ‘Judgment,’ but was instead named ‘Order of Dismissal with Prejudice’” and that this was “not a mere technical deviation” from the rule. Id. ¶ 23. Rather, the title “accurately described” the document’s purpose, which was to confirm the trial court’s oral ruling, not to be “a separate judgment documenting the resolution of all claims in the district court.” Id.

¶43      The supreme court next emphasized the rule’s requirement that a “judgment be set out in a ‘separate document.’” Id. ¶ 24 (cleaned up). It noted that “separate means individual; distinct; particular; disconnected” and declared that “a separate judgment, by definition, must be self-contained and independent from any other document in the case, including the decision that gave rise to it.” Id. (cleaned up). Even if a particular decision “disposes of all claims in the action” and the trial court “directs a party to prepare an order confirming [that] decision,” the court explained, “a separate judgment is required” in order to comply with rule 58A(a). Id. ¶ 26 (cleaned up). Although the order at issue in Griffin was “separate from the [trial] court’s oral ruling and accompanying minute entry, that [was] beside the point.” Id. To be a “judgment,” it needed to be wholly separate from the decision giving rise to the judgment. See id.

¶44 Finally, and “[m]ost importantly,” the Griffin court observed that the order in that case “serve[d] a different function than a 58A(a) judgment.” Id. ¶ 27. The purpose of “a separate 58A(a) judgment” is not to “operate at the decision level” but, rather, to “operate[] at the case level to signal that all claims involving all parties have been resolved.” Id. The fact that the order at issue in Griffin “contain[ed] procedural history, legal reasoning, and factual content” indicated that it operated at the decision level, not the case level. Id. ¶ 28.

¶45 In sum, because the document in Griffin was not “clearly identified as a judgment,” was not “separate from the court’s decision on the relevant motion,” and was not “limited to only that information relevant to a judgment,” it was “not a separate 58A(a) judgment.” Id.

¶46 The reasoning of Griffin applies here, compelling the conclusion that the September 14 order is not a separate rule 58A(a) judgment either. Like the order in Griffin, the September 14 order is not titled “Judgment” but, instead, is titled “Order Granting Petitioners’ Motion to Dismiss and Denying Respondent’s Motion to Dismiss.” Also like the order in Griffin, the September 14 order does not amount to a self-contained judgment that is independent from the decision that gave rise to it. Finally, the September 14 order operates primarily at the decision level, not at the case level. It states, in full:

This case came on for hearing on July 13, 2021[,] on: (1) the Motion to Dismiss filed by [the TKS parties], which sought voluntary dismissal of Causes of Action 1–7 contained in the Verified Complaint & Petition for Civil Stalking Injunction (“the Complaint”), without prejudice; and (2) [Doug’s] Motion to Dismiss, which sought dismissal of the same claims with prejudice. . . . The [c]ourt, having considered the motions and corresponding memoranda, and the oral argument of counsel, for the reasons stated on the record, HEREBY ORDERS THAT:

1. [The TKS parties’] Motion to Dismiss is GRANTED;

2. [Doug’s] Motion to Dismiss is DENIED;

3. Claims 1–7 in the Complaint are dismissed without prejudice; [and]

4. With Claim 8 having resulted in the issuance of a civil stalking injunction, and [Doug] having previously dismissed his counterclaim, all claims in this case have now been resolved.

While the order does not wax long on “procedural history, legal reasoning, and factual content,” id., it does address the procedural posture of the motions, recount details of the hearing, and incorporate the reasoning the court stated at the hearing—all decision-level information. Admittedly, the last sentence of the order says that “all claims in this case have now been resolved,” which is a case-level statement. But because the order predominantly operates at the decision level, it does not qualify as a judgment under rule 58A(a). Cf. In re Cendant Corp., 454 F.3d 235, 241 (3d Cir. 2006) (explaining that to qualify as a judgment under federal rule 58(a), an order “must omit (or at least substantially omit) the [d]istrict [c]ourt’s reasons for disposing of the parties’ claims”).[6]

¶47      The TKS parties ask us to conclude that the September 14 order qualifies as a judgment because “the parties exchanged emails about and edited the document to clarify that the case was over with nothing left to be litigated.” After the TKS parties’ counsel emailed the proposed order to Doug’s counsel for approval, Doug’s counsel responded with an email saying, “What is your position as to [cause of action] #8 (injunction)[?] We probably need to make it clear as to whether the case is over or not through this. It seems that this ends the case, but I am not sure if you are of the same opinion.” Counsel for the TKS parties wrote back, “We are of that opinion. Each of the claims in the Verified Complaint has been resolved, and with this dismissal and Doug’s earlier dismissal of his counterclaim, there is nothing left to be litigated in this case. For clarity, I’ve added a sentence in the attached.” From this exchange, it does appear that the parties intended for the September 14 order to serve as a judgment under rule 58A(a). But because this court’s jurisdiction is tied to a timing determination that depends on when a final judgment is entered, the question of whether a document complies with rule 58A(a) cannot turn on the parties’ subjective intent. Cf. Duke Cap. LLC v. Proctor, 2023 UT App 59, ¶ 25, 531 P.3d 745 (recognizing that “parties cannot create, by contract, jurisdiction that would not otherwise exist” (cleaned up)). Instead, rule 58A(a) compliance is determined by whether the document at issue objectively satisfies the requirements of the rule.

¶48 The September 14 order objectively does not satisfy the requirements of rule 58A(a), and it therefore did not trigger a thirty-day deadline to appeal. Instead, that deadline was triggered 150 days after the clerk recorded the September 14 order. See Utah R. Civ. P. 58A(e)(2)(B). Thus, Doug’s appeal, which was filed before those 150 days had run, was timely. See Utah R. App. P. 4(c) (“A notice of appeal filed after the announcement of a decision, judgment, or order but before entry of the judgment or order will be treated as filed after such entry and on the day thereof.”). We therefore have jurisdiction to consider it.

B.        Whether the Stalking Injunction Was Proper

¶49      Having determined that we have jurisdiction to consider Doug’s appeal, we now address his first contention, which is that the district court should not have granted the Stalking Injunction in the first instance. “Under Utah’s civil stalking [injunction] statute, a person who believes that he or she is the victim of stalking may obtain an injunction against an alleged stalker” by “prov[ing] by a preponderance of the evidence that an offense of stalking has occurred.” Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (cleaned up); see also Utah Code § 78B-7-701. At the time of Doug’s alleged stalking, to prove that an offense of stalking had occurred, a person was required to show that (1) the alleged stalker “intentionally or knowingly engage[d] in a course of conduct directed at [the] person” and (2) the alleged stalker knew or should have known “that the course of conduct would cause a reasonable person to fear for the person’s own safety or suffer other emotional distress.” Ragsdale2021 UT 29, ¶ 25 (cleaned up); see also Utah Code § 76-5-106.5(2) (2020). Doug asserts that (1) the district court committed legal error when it ruled that Doug had engaged in a course of conduct and (2) even if Doug had engaged in a course of conduct, the evidence does not support a finding that Doug knew or should have known that the course of conduct would cause a reasonable person to suffer emotional distress. We disagree with each of Doug’s assertions.

1.         Course of Conduct

¶50      Doug asserts that the court committed legal error when it ruled that he had engaged in a course of conduct. The stalking statute’s definition of a “[c]ourse of conduct” is broad. See Utah Code § 76-5-106.5(1)(a)(i). It defines a course of conduct as “two or more acts directed at or toward a specific individual,” id., and it says that those acts may include “acts in which the actor . . . communicates to or about an individual, or interferes with an individual’s property . . . directly, indirectly, or through any third party,” id. § 76-5-106.5(1)(a)(i)(A). It also says that the acts may include instances when the actor “appears at the individual’s workplace or contacts the individual’s . . . coworker”; “enters property owned, leased, or occupied by an individual”; or “sends material . . . for the purpose of . . . disseminating information about . . . the individual to a . . . coworker, friend, or associate of the individual.” Id. § 76-5-106.5(1)(a)(i)(B)(II)–(IV). Any of the foregoing types of conduct qualifies to be part of a course of conduct even if the actor “uses a computer, the Internet, text messaging, or any other electronic means to commit [the] act.” Id. § 76-5-106.5(1)(a)(i)(B)(VI).

¶51      In this case, Doug agrees that the district court identified three instances of stalking behavior that the court said amounted to a course of conduct. First, the court identified the conversations during which Doug essentially told Sister, “I will ruin Troy. I will contact customers. I will bring the company down. . . . [T]hey will lose the business. They’ll lose everything.” Second, the court identified the text message Doug sent to Vendor asking what he had been talking about with a TKS employee, even though Doug had not been visibly present during the conversation and the participants would not, therefore, have had reason to know that Doug was aware the conversation had occurred. Third, the court identified a conversation between Doug and Vendor wherein Doug “suggested that he was going to go to . . . [a] customer [of TKS] and tell them how their . . . product [was] being handled.”

¶52      After identifying these instances of stalking behavior, the district court said, “[I’m] satisfied to a preponderance that there is a course of action, that it was directed in such a way that although it was aimed at the company, [it] was aimed at the company in a particularly harmful way and that it satisfies the requirements of the stalking [statute].” Based on this statement, Doug contends that the court’s finding of a course of conduct was “mistaken as a matter of law” because “[n]owhere in the stalking statute does it suggest that a harm can be directed at a company” and qualify as part of a course of conduct but, rather, “harms to companies, as opposed to specific individuals, are simply not contemplated by the statute.” Restated, we understand Doug’s argument to be that conduct that the court acknowledges was “aimed at [TKS]” cannot at the same time legally qualify as conduct “directed at” Troy for purposes of finding a course of conduct under the stalking statute.[7]

¶53 Our supreme court considered a related question in Ragsdale v. Fishler, 2021 UT 29, 491 P.3d 835. There, the director of “an inpatient treatment facility for young women recovering from severe depression and anxiety” sought a civil stalking injunction protecting her from a neighbor living on the same street as the facility. Id. ¶¶ 1, 6–7. The neighbor “feared [the facility] would increase noise and traffic in the neighborhood,” and he “began protesting the facility directly” by placing “signs in his yard” that disparaged the facility. Id. ¶¶ 6–7. “He also began flipping off and swearing at employees, clients, and anyone else involved with [the facility].” Id. ¶ 7. Eventually, after the neighbor routinely flipped off the director and began “coming out of his garage to say things” to her directly, the director sought a stalking injunction against the neighbor. Id. ¶¶ 7–9. The district court issued an ex parte temporary injunction, but following an evidentiary hearing, it declined to issue a permanent stalking injunction, reasoning that the neighbor had “not direct[ed] his conduct at [the director] but toward [the facility] as a business.” Id. ¶¶ 9, 12.

¶54      On appeal, the supreme court ruled that the district court had “erred in concluding that because [the neighbor] claimed to subjectively target only [the facility], he did not direct his conduct at [the director].” Id. ¶ 24. The supreme court observed that “nothing in the statute defines the term ‘directed at’” or “expressly indicate[s] that [a stalking] petitioner must be the ‘ultimate target’ of a respondent’s course of conduct.” Id. ¶ 31. Instead, the court explained, “regardless of whether a petitioner is a respondent’s ultimate target, the fact that the respondent engaged in any act proscribed by the statute two or more times makes his or her conduct ‘directed at’ the petitioner.” Id. ¶ 32. Thus, the Ragsdale court concluded, “the person toward whom a respondent’s behavior is ‘directed at’ . . . is determined by an objective assessment of whether the respondent engaged in conduct prohibited by the stalking statute.” Id. ¶ 37. “And this is true even where a respondent directs his or her conduct at a petitioner indirectly or through a third party.” Id. (cleaned up). Accordingly, “[t]he fact that [the facility] was allegedly [the neighbor’s] ultimate target [did] not shield him” from a finding that his actions constituted a course of conduct toward the director. Id. ¶¶ 39, 42. “It simply mean[t] [that the facility] could potentially obtain an injunction against [the neighbor] as well.” Id. ¶ 39; see also supra note 7. Based on this holding, the supreme court remanded the Ragsdale case to the district court for a course-of-conduct determination under a proper understanding of the statute. 2021 UT 29, ¶ 43.

¶55 Another case merits mention in this context as well. In Carson v. Barnes, 2016 UT App 214, 385 P.3d 744, a petitioner sought a stalking injunction based on an alleged course of conduct that included an incident where the respondent had taken “a handgun from his vehicle and confronted” two business associates of the petitioner when the petitioner was not present. Id. ¶¶ 3, 9, 16. The respondent contended that reliance on this incident was “problematic because [the petitioner] was not present, and therefore [the respondent’s] actions on that day were not ‘directed at’ [the petitioner] as the statute requires.” Id. ¶ 16. We disagreed and held that “the statute does not require the victim to be physically present for an act to be considered in the course of conduct” because “the plain language of the statute . . . includes situations in which the actor comes to the person’s workplace or contacts the person’s . . . coworkers, without requiring the presence of the victim.” Id. ¶¶ 16–17 (cleaned up).

¶56 The Ragsdale and Carson holdings apply to this case. Specifically, under the Ragsdale holding, the district court’s acknowledgment that Doug’s conduct “was aimed at [TKS]” is not legally at odds with a determination that Doug had engaged in a course of action directed at Troy. That is because an objective assessment reveals that each of the three instances of stalking behavior the court identified qualify as conduct prohibited by the statute. Doug’s conversations with Sister wherein he said, among other things, that he would ruin Troy amounted to acts in which Doug “communicate[d] . . . about [Troy] . . . directly, indirectly, or through any third party.” Utah Code § 76-5-106.5(1)(a)(i)(A)(I). And Doug’s text message to Vendor about a conversation Doug had not been visibly present for as well as Doug’s conversation with Vendor wherein he suggested that he was going to tell a TKS customer how their product was being handled each amounted to Doug “contact[ing] [Troy’s] . . . coworker,” id. § 76-5-106.5(1)(a)(i)(B)(II), and perhaps also to Doug “send[ing] material . . . to a . . . coworker” of Troy “for the purpose of . . . communicating with [Troy],” id. § 76-5-106.5(1)(a)(i)(B)(IV). Additionally, under the Carson holding, none of these actions by Doug are disqualified from contributing to a course of conduct directed at Troy by virtue of the fact that Troy was not present for or the direct recipient of the conduct. Because an objective assessment reveals that each of the three instances of stalking behavior the court identified qualify as conduct prohibited by the stalking statute as against Troy, the court committed no legal error by ruling that these three instances constituted a course of conduct directed at Troy, even if the same instances might also have been aimed at TKS.

2.         Emotional Distress

¶57      Doug also asserts that, even if he engaged in a course of conduct directed at Troy, the evidence does not support the district court’s implicit finding that Doug knew or should have known that the course of conduct would cause a reasonable person to suffer emotional distress.[8] At the time of Doug’s alleged conduct, a determination that stalking had occurred required a finding that the actor “[knew] or should [have known] that the course of conduct would cause a reasonable person . . . to fear for the person’s own safety or the safety of a third person” or “to suffer other emotional distress.” Utah Code § 76-5-106.5(2) (2020).[9] The statute defines “[e]motional distress” to mean “significant mental or psychological suffering.” Id. § 76-5-106.5(1)(a)(ii)(A) (2024). And it defines “[r]easonable person” to mean “a reasonable person in the victim’s circumstances.” Id. § 76-5-106.5(1)(a)(v). “By including ‘in the victim’s circumstances’ as part of the reasonable person definition, the statute provides for an individualized objective standard, meaning that a court must consider the entire context surrounding the defendant’s conduct.” Richins v. Weldon, 2023 UT App 147, ¶ 67, 541 P.3d 274 (cleaned up). “Courts applying this individualized objective standard have considered such factors as the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking, and the cumulative effect of the defendant’s repetitive conduct.” Id. (cleaned up). “Another consideration could be whether the behavior might cause damage to one’s reputation, relationships, or livelihood.” Id. (cleaned up).

¶58 With regard to the consideration of whether a course of conduct might cause damage to one’s reputation, relationship, or livelihood, the stalking case of Richins v. Weldon, 2023 UT App 147, 541 P.3d 274, is instructive. There, this court emphasized that the respondent “was saying very negative things” about the petitioner, a vice president of a company, to the petitioner’s “fellow employees and boss, including telling [the boss] that he should fire” the petitioner. Id. ¶¶ 2, 69. Because the respondent’s “behavior could have damaged [the petitioner’s] work relationships and reputation as well as his livelihood,” we determined that “ample evidence existed for the district court to conclude that a reasonable person in [the petitioner’s] circumstances would feel emotional distress.” Id. ¶ 69.

¶59      Here, Doug was a former production manager of TKS who was familiar with TKS’s operations and employees. After leaving TKS, he was employed by Landlord and continued to work in the same building that housed TKS. Thus, Doug was well positioned to harm Troy by harming TKS. And that’s exactly what he told Sister he intended to do. Doug asserts that “[e]xpressing an intent to sue is not emotionally distressing” and that “[w]anting to ‘ruin’ someone is more so an expression of frustration or anger rather than a phrase intended to cause significant stress or suffering.” We agree that a threat of civil litigation by itself would not satisfy the emotional distress component of stalking. But Doug did not simply threaten to file a lawsuit, and we do not agree that, under the circumstances, the court was required to interpret Doug’s express desire to “ruin” Troy and cause both TKS and Troy to “lose everything” to be a mere expression of frustration. Actions undermining TKS could certainly undermine Troy’s livelihood where Troy held a 50% interest in TKS. And if TKS employees felt targeted by Doug in his effort to get at Troy, that could certainly interfere with Troy’s work relationships. Indeed, the district court specifically found that the sum of Doug’s communications to Sister “evince[d] an intent to . . . cause emotional distress to a specific person,” namely Troy; that the text from Doug to Vendor “create[d] the impression” that Doug was “all-knowing” and “create[d] a sense of unease and discomfort” that could “upset the workings of a company and . . . create a cloud of suspicion and distrust for the company”; and that the conversation wherein Doug “suggested that he was going to go to . . . [a] customer and tell them how their . . . product [was] being handled” “undermine[d] the wellbeing of the company.” All of these findings were reasonable under the circumstances, and they amply support the overarching finding that Doug knew or should have known that his course of conduct would cause emotional distress to a reasonable person in Troy’s position.

¶60 Accordingly, Doug has failed to demonstrate that the district court erred in issuing the Stalking Injunction.[10]

C.        Whether the TKS Parties’ Tort Claims Were Properly Dismissed Without Prejudice

¶61    Apart from challenging the Stalking Injunction, Doug also argues that the district court abused its discretion when it dismissed the TKS parties’ tort claims without prejudice, as opposed to with prejudice. Rule 41 of the Utah Rules of Civil Procedure indicates that “[u]nless the order states otherwise, a [voluntary] dismissal [by court order] is without prejudice.” Utah R. Civ. P. 41(a)(2). This provision confirms that the default for voluntary dismissals is dismissal without prejudice. The rule also directs a court to grant a motion for voluntary dismissal “only on terms the court considers proper.” Id. In Rohan v. Boseman, 2002 UT App 109, 46 P.3d 753, cert. denied, 59 P.3d 603 (Utah 2002), we adopted the Tenth Circuit’s analysis in Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997), which includes a list of “relevant factors the trial court should consider” when determining “proper” terms of dismissal under rule 41(a)(2). Rohan, 2002 UT App 109, ¶¶ 20–22 (cleaned up). The Ohlander factors include “the opposing party’s effort and expense in preparing for trial; excessive delay and lack of diligence on the part of the movant; insufficient explanation of the need for a dismissal; and the present stage of the litigation.” Id. ¶ 21 (cleaned up). These factors have since been employed in analyzing a district court’s decision to grant or deny a motion for voluntary dismissal, see, e.g.Keystone Ins. Agency v. Inside Ins., 2019 UT 20, ¶¶ 25‒26, 445 P.3d 434, and in analyzing a district court’s decision to grant a motion for voluntary dismissal with or without prejudice, see H&H Network Services, Inc. v. Unicity Int’l, Inc., 2014 UT App 73, ¶ 5, 323 P.3d 1025. These factors “are by no means exclusive[,] and any other relevant factors should also be considered.” Id. (cleaned up).

¶62      Doug frames his argument in terms of the factors set forth in Westinghouse Electric Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876 (Utah 1975), which are used when determining whether a dismissal with prejudice for failure to prosecute should be granted: “the length of time since the suit was filed,” “the conduct of both parties,” “the opportunity [the parties have] had to move the case forward and what they have done about it,” “what difficulty or prejudice may have been caused to the other side,” and “whether injustice may result from the dismissal.” Id. at 879. These factors are similar to the Ohlander factors, and we agree that some of them are also relevant here.

¶63      Under the Ohlander and Westinghouse factors that we deem to be relevant here, we conclude that the district court did not abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. First, as to whether injustice resulted from a dismissal without prejudice, we note that Doug’s claims—which he raised as counterclaims to the TKS parties’ complaint—were also voluntarily dismissed without prejudice, leaving Doug able to bring his claims again in the future if he so desires. On this score, the court’s dismissal of the TKS parties’ claims without prejudice preserved parity between the parties regarding possible future litigation, an outcome that appears just on its face. Cf. Clear Creek Dev., LLC v. Peterson Pipeline Ass’n, 2024 UT App 22, ¶ 24, 545 P.3d 306 (stating, in the context of determining when a counterclaim is compulsory under rule 13(a) of the Utah Rules of Civil Procedure, that an outcome “allowing both parties the option to bring their claims anew in a subsequent action . . . is certainly the more just outcome”).

¶64      Doug argues that the district court abused its discretion by dismissing the TKS parties’ claims without (as opposed to with) prejudice because “[t]he case had been on the court’s docket for almost eight months,” “fact discovery was set to end [in] less than three weeks,” and “the TKS parties had done nothing to litigate any of their [tort] claims.” These facts implicate the Ohlander factor regarding excessive delay and lack of diligence on the part of the movant. But we believe that these factors ultimately weigh neutrally or in the TKS parties’ favor here. During the eight months that their tort claims were pending, the TKS parties did not exhibit a lack of diligence generally; they were actively litigating their request for a stalking injunction as well as their motion for contempt sanctions. Additionally, we credit the district court’s indication that, in its view, the eight-month delay in discovery was a relatively “short time frame” under the circumstances and that an allowance of “additional time” for discovery would have been merited if the TKS parties had sought it.

¶65      As to the factor regarding the opposing party’s expense in preparing for trial, we do not have reason to doubt Doug’s claim that his litigation expenses “amounted to over a third of his yearly salary.” Yet those expenses were nevertheless limited by the TKS parties’ decision not to initiate depositions and other costly discovery related to their tort claims while they litigated the Stalking Injunction. Thus, we believe that this factor weighs out neutrally when it comes to evaluating the propriety of dismissing the TKS parties’ claims without prejudice.

¶66 Finally, Doug argues that dismissal with prejudice was required because the TKS parties’ “unsubstantiated claims have cost [him] his personal relationships and led him to try and commit suicide.” While we are not unsympathetic to the emotional and relationship costs that are often incurred through litigation, Doug provides no support for the proposition that this type of prejudice is properly within the scope of our inquiry. Without such authority, we are unconvinced that emotional and relationship costs constitute the type of “legal prejudice” that the Ohlander factors are designed to prevent. See 114 F.3d at 1537 (explaining that “[t]he parameters of what constitutes ‘legal prejudice’ are not entirely clear” but providing factors to guide this inquiry, which speak in terms of “effort,” “delay,” “expense,” and “diligence”). Indeed, although to this point the TKS parties’ tort claims have not been substantiated, there has been no contention that they are frivolous, and our system does not condition the ability to maintain potentially meritorious litigation on a showing that the process will not cause stress to the opposing party.

¶67 In sum, in light of the factors that are relevant here, we determine that the district court did not abuse its discretion by dismissing the TKS parties’ tort claims without prejudice.

II. The TKS Parties’ Appeal

¶68 We now turn to the TKS parties’ appeal. The TKS parties first challenge the district court’s decision to treat their motion for contempt sanctions as a motion to hold Doug in criminal contempt rather than civil contempt. The TKS parties also challenge, for several reasons, the court’s decision not to hold Doug in criminal contempt. We address the TKS parties’ various arguments in turn.

A.        Whether the District Court Applied the Correct Standard for Contempt

¶69 The TKS parties assert that the district court erred by “applying the criminal standard” for contempt. We disagree.

¶70      Whether a contemplated contempt order is civil or criminal determines the standard of proof a court must apply to find that the elements of contempt have been met: for civil contempt, the standard is clear and convincing evidence; for criminal contempt, it is proof beyond a reasonable doubt. Koehler v. Allen, 2020 UT App 73, ¶ 14 & n.3, 466 P.3d 738. “The primary determinant of whether a particular contempt order is to be labeled civil or criminal is the trial court’s purpose in entering the order.” Von Hake v. Thomas, 759 P.2d 1162, 1168 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). “A criminal contempt order is punitive in nature, whereas a civil contempt order has a remedial purpose.” Koehler, 2020 UT App 73, ¶ 14 n.3. “A remedial purpose is indicated when the contemner is allowed to purge him- or herself of the contempt by complying with the court’s orders.” Von Hake, 759 P.2d at 1168. Accordingly, “a contempt order is criminal if the fine or sentence imposed is fixed and unconditional, but [it] is civil if the fine or imprisonment is conditional such that the contemner can obtain relief from the contempt order merely by doing some act as ordered by the court.” Id. at 1168 n.5. For example, in the stalking injunction context, this court has found a contempt order civil when its sanctions included “a jail term of 10 days and a fine of $300” because “these sanctions were stayed to allow [the contemner] an opportunity to purge his contempt . . . by having no further contact . . . with [the protected party] for a period of two years.” Koehler, 2020 UT App 73, ¶ 14 n.3 (cleaned up).

¶71 The district court determined that the contemplated contempt order in this case was criminal, explaining:

Because Doug Wilson has substantially complied with the [Stalking Injunction], were the court to sanction Doug Wilson, the [principal] reason would be to vindicate the court’s authority, rather than to compel future compliance. Because the court’s primary purpose would be punitive in nature, the criminal standard of proof beyond a reason[able] doubt applies to the proceeding.

This determination was not an abuse of discretion.

¶72 First, the TKS parties did not indicate in their motion for contempt that they were seeking a civil contempt adjudication. Their motion asked the court to “impose a fine and/or incarceration,” without any mention of giving Doug an opportunity to purge his contempt. That the relief the TKS parties requested was not conditional suggests that the contempt they sought was not civil. See id. (“Because this order was conditional such that [the contemner] could obtain relief by staying away from [the protected party], the contempt order is not criminal but civil.”).

¶73 Moreover, regardless of what the TKS parties requested, the court gave sound reasons for its application of the criminal standard. Its finding that Doug had “substantially complied” with the terms of the Stalking Injunction—a finding that the TKS parties do not challenge on appeal—supports the court’s determination that the chief reason for it to hold Doug in contempt “would be to vindicate the court’s authority, rather than to compel future compliance.” This finding supports the court’s determination that a contempt sanction in this case would be “punitive in nature.” The court employed the correct standard in approaching this issue, and it provided sound reasoning for its determination that the proceeding was criminal in nature. Thus, the court did not abuse its discretion related to this issue.

B.        Whether the District Court Erred in Not Holding Doug in Contempt

¶74      The TKS parties next challenge the district court’s decision, even under the criminal standard, not to hold Doug in contempt. Relatedly, the TKS parties also assert that the court abused its discretion by excluding certain evidence during the contempt hearing. The TKS parties’ motion for contempt sanctions was based on two sets of alleged violations of the Stalking Injunction: Doug’s communications with Prior Customer and Doug’s Facebook post and related comments. We first review the court’s determination that Doug’s communications with Prior Customer did not satisfy the elements of contempt. We then review the court’s determination that Doug’s Facebook post did not satisfy the elements of contempt. We address the evidentiary issue as part of our review of the court’s determination that Doug’s Facebook post did not satisfy the elements of contempt.

1.         Doug’s Communications with Prior Customer

¶75 The TKS parties identified Doug’s communications with Prior Customer as violative of the Stalking Injunction’s No Contact Order. “As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). The district court found that the TKS parties failed to prove beyond a reasonable doubt that by communicating with Prior Customer Doug intentionally failed to comply with the Stalking Injunction. The TKS parties challenge that finding. We determine that this finding is not clearly erroneous and, therefore, that Doug’s communications with Prior Customer cannot be a basis for holding Doug in contempt.

¶76 The Stalking Injunction’s No Contact Order stated that “Doug must not contact, phone, text, mail, email, or communicate . . . either directly or indirectly in any way with . . . [a]ny customer of TKS.” While there was evidence that Doug spoke with and emailed Prior Customer, who had at some point been a customer of TKS, the district court was also presented with evidence that Prior Customer had been the one to initiate contact with Doug and that when he had initiated contact, Doug told him, “[I]f you’re a TKS customer, I can’t talk to you . . . .” The court also received evidence that Doug subsequently sent Prior Customer an email asking for the last date on which he had done business with TKS. Prior Customer responded by saying he was not a current TKS customer but that he had purchased some products from TKS a few months earlier. The court found that “the content” of Doug’s communications with Prior Customer raised “a reasonable doubt as to whether Doug intentionally violated the order by sending those messages or whether he merely attempted to comply with the order, by obtaining written confirmation that [Prior Customer] was not a current customer, after [Prior Customer] initiated contact with Doug.”

¶77      The TKS parties acknowledge that if Prior Customer was the one who initiated contact with Doug, “it is unclear how Doug could have handled [the situation] differently” and that when Doug subsequently emailed Prior Customer, Doug “was apparently trying to determine whether [he] was a ‘current’ customer or a prospective customer.” Yet the TKS parties appear to argue that because Doug’s email asking Prior Customer “how long he had been working with TKS” was sent three days after Doug was served with the motion for contempt sanctions, the email must have amounted to an intentional failure by Doug to comply with the Stalking Injunction. Specifically, they apparently contend that because “Doug knew Troy considered his communications with [Prior Customer] to be a violation of the Stalking Injunction” yet “reached out to him anyway,” it was clear error for the court not to find that Doug intentionally violated the No Contact Order when he emailed Prior Customer. We are not convinced.

¶78      Nothing in the record suggests that Doug trusted Troy or the assertions of Troy’s counsel. Accordingly, the fact that Doug learned that Troy and Troy’s counsel considered communications with Prior Customer to be a violation of the Stalking Injunction does not definitively establish that Doug intentionally violated the Stalking Injunction by inquiring of Prior Customer himself whether he was a current customer of TKS, especially where he told Doug that he was not a current customer. Given the evidence that Doug repeatedly told Prior Customer that Doug could not speak with him if he was a TKS customer and the evidence that Doug’s email to Prior Customer was merely to confirm whether he was a current customer, we see no clear error in the district court’s finding that the TKS parties failed to prove beyond a reasonable doubt that by communicating with Prior Customer Doug intentionally violated the Stalking Injunction. That alleged violation of the Stalking Injunction cannot serve as a basis for holding Doug in contempt.

2.         Doug’s Facebook Post and Related Comments

¶79      We now consider the TKS parties’ challenge to the court’s determination that Doug’s Facebook post and related comments did not satisfy the elements of contempt. While the Stalking Injunction was in place, Doug made a series of communications on Facebook. The full text of those communications is quoted above. See infra ¶ 18. We address, in turn, the district court’s determination that these communications did not violate the No Contact Order and its determination that they did not violate the Personal Conduct Order.

a.         Whether Doug’s Facebook Post and Comments Violated the No Contact Order

¶80      The Stalking Injunction’s No Contact Order forbade Doug from communicating with Troy, even indirectly. For the district court to impose contempt sanctions based on the allegation that the Facebook communications violated the No Contact Order, the TKS parties had to prove beyond a reasonable doubt that, among other things, Doug intended the Facebook post and comments to be a direct or indirect communication with Troy or that he knew they were a direct or indirect communication with Troy. See Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). The district court determined that it could not find beyond a reasonable doubt that the Facebook post was an intentional or knowing violation of the No Contact Order, and we see no clear error in that finding.

¶81      On this point, the court reasoned that “because Troy was not a Facebook friend of Doug and because the message [did] not reference Troy by name, a reasonable doubt exists as to whether Doug intended the message to reach Troy.” Indeed, there was evidence that Troy was not a Facebook friend with Doug, which does support a finding that the post was not a knowing or intentional attempt by Doug to communicate with Troy directly. And there is no evidence that any of Doug’s Facebook friends routinely shared Doug’s posts with Troy, which supports a finding that the post and related comments did not amount to a knowing or intentional attempt to communicate with Troy indirectly.

¶82 Admittedly, we have held in the context of a no-contact order that “a factfinder could readily infer that calls [an ex-husband] placed to [his ex-wife’s new husband] . . . would routinely and predictably be conveyed to [the ex-wife]” and, therefore, that by making those calls, the ex-husband “intentionally or knowingly” contacted his ex-wife at least indirectly. State v. Fowers, 2023 UT App 128, ¶ 13, 538 P.3d 1274 (cleaned up). Similarly, we have held that a factfinder could infer that an estranged husband intended to communicate with or contact his wife, who had obtained a protective order against him, by sending letters with language directed to his wife to the address of the wife’s “sister who lived next door.” State v. Fouse, 2014 UT App 29, ¶¶ 3, 41, 43, 319 P.3d 778, cert. denied, 329 P.3d 36 (Utah 2014). But in neither of those cases did we say that the evidence required a finding that the defendant knowingly or intentionally communicated indirectly with the protected person. See Fowers, 2023 UT App 128, ¶ 13; Fouse, 2014 UT App 29, ¶ 43. And we are unwilling here to hold that a person who is subject to an order not to contact his or her sibling indirectly necessarily violates that order any time he or she communicates about the sibling with any other family member or friend of the sibling.

¶83 In short, we affirm the district court’s determination that Doug’s Facebook post and related comments did not violate the No Contact Order.

b.         Whether Doug’s Facebook Post and Comments Violated the Personal Conduct Order

¶84 The TKS parties allege that Doug’s Facebook communications violated the Stalking Injunction’s Personal Conduct Order because he was thereby communicating “about” Troy. On this issue, Judge Harris’s opinion, joined in by Judge Orme, is the majority opinion; my views in this Part II.B.2.b constitute a dissenting opinion on this issue.

¶85 As to the allegation that Doug’s Facebook post and comments violated the Stalking Injunction’s Personal Conduct Order, I address each of the elements of contempt in turn. Again, those elements include that Doug “knew what was required [of him by the Personal Conduct Order], had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991).

(i) Whether Doug Knew What Was Required

¶86      The Personal Conduct Order said:

Doug is not to stalk Troy. This means that Doug must not do things such as follow, threaten, annoy, or harass Troy in a way that could cause a reasonable person to suffer emotional distress or to be afraid for the person’s safety or the safety of another person. For a legal definition of stalking, see Utah Code Ann. § 76-5-106.5.

The district court found that “no evidence exists [that] Doug knew speaking indirectly about Troy would violate the order.” In making this finding, the court reasoned that while the Personal Conduct Order “contains a citation” to Utah Code section 76-5­106.5 “for the legal definition of stalking” and while “the statute contains a provision precluding an enjoined party from communicating ‘about’ the protected party,” the Stalking Injunction “does not contain that language, and no evidence exists in the record that Doug Wilson ever consulted the statute.” I believe this approach was erroneous.

¶87 The Personal Conduct Order prohibited Doug from stalking Troy. The supplied list of actions that constitute stalking was not exhaustive, as evidenced by the order’s use of “such as.” See State v. Green, 2023 UT 10, ¶ 70, 532 P.3d 930 (explaining that a rule’s “use of ‘such as’ indicates that the list” following that phrase is “illustrative and not exclusive” (cleaned up)); State v. Verde, 2012 UT 60, ¶¶ 14–15, 296 P.3d 673 (discussing a list following “such as” as “illustrative and not exclusive”), abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. Thus, the fact that communicating about Troy was not among the listed examples of stalking is not dispositive.

¶88      Furthermore, the Personal Conduct Order unambiguously stated that the legal definition of stalking could be found in Utah Code section 76-5-106.5. I have some doubt as to whether Doug could successfully claim ignorance on the meaning of stalking even if the stalking statute had not been explicitly cited in the Personal Conduct Order, because “citizens are generally presumed to know what the law is.” Laker v. Caras, 2023 UT App 125, ¶ 21, 538 P.3d 926. At any rate, however, Doug’s argument that he only knew of the listed examples of stalking and not the full definition of stalking is unavailing given that he was plainly forbidden from stalking and told where to find the definition of that term. Cf. State v. Barlow, 153 P.2d 647, 653 (Utah 1944) (“Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law.”). I reject the district court’s position that a person subject to a court order not to engage in certain conduct does not know what is required if the person elects not to read a statute that defines the forbidden conduct that is expressly identified in the order. Accordingly, I would vacate the district court’s finding that “no evidence exists [that] Doug knew speaking indirectly about Troy would violate the [Personal Conduct Order],” remand the case, and instruct that the court make a new finding on this issue.

(ii) Whether Doug Was Able to Comply

¶89      As the TKS parties point out, the district court did not make a finding regarding Doug’s ability to comply with the Personal Conduct Order’s restriction against communicating about Troy. However, while it is true that a “district court must make explicit findings, whether written or transcribed, on the three elements of contempt,” Koehler v. Allen, 2020 UT App 73, ¶ 14, 466 P.3d 738 (cleaned up), I would find the lack of an explicit finding on this element to be harmless, see generally Green, 2023 UT 10, ¶ 101 (“[W]hen an error is harmless, we do not disturb the district court’s decision.”). Because there is simply no evidence to suggest that Doug would have been unable to refrain from posting about Troy on Facebook, the only supportable finding on this point is that Doug could have complied with the Personal Conduct Order.

(iii) Whether Doug Intended Noncompliance

¶90 On the element of whether Doug knowingly or intentionally violated the Personal Conduct Order, the district court found that “because no evidence exists [that] Doug knew speaking indirectly about Troy would violate the order, a reasonable doubt exists as to whether Doug intended the [Facebook post and related comments] to violate[] the order.” I have already expressed my view that the court’s finding of no evidence that Doug knew communicating about Troy would violate the Personal Conduct Order was the product of legal error. See supra ¶¶ 86‒88. Because I would have thus vacated this basis for the court’s finding that Doug did not knowingly or intentionally violate the Personal Conduct Order through his Facebook post and related comments, I would vacate the court’s finding on this point as well.

¶91 Doug contends that there is evidence apart from his professed ignorance of the restrictions imposed by the Personal Conduct Order that supports a finding that he did not knowingly or intentionally violate that order with his Facebook communications. Specifically, he asserts that the post and comments were not knowingly or intentionally “about” Troy but, instead, “only about” Sister. I am skeptical on this point. While the Facebook post and comments may have been, in part, about Sister, that does not necessarily mean they were not also about Troy. They refer to the lawsuit and the request for the Stalking Injunction, neither of which was filed by Sister. Additionally, the Facebook post declares, “I have . . . [h]ad family members try to hurt me to the point to drive me to take my life.” And Doug’s suicide note stated: “I feel like there is no other way out of where Troy has put me. I do not have the will or strength to fight.” Doug explicitly blamed Troy for his suicidal thoughts, so I am doubtful that his Facebook reference to the “family members” who prompted such thoughts was not intended to be about Troy. For these reasons, I do not believe that we can say that the evidence supported only the district court’s finding that Doug did not knowingly or intentionally violate the Personal Conduct Order through his Facebook post and related comments. I would instruct the court to make a new finding on this issue on remand as well.

¶92      In the context of stalking, this third element of contempt—that the stalker intentionally failed or refused to comply with the court’s order, see Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991)—required the TKS parties to also prove that, to the extent the Facebook post and comments were about Troy, the communications would have caused “emotional distress to a reasonable person in [Troy’s] circumstances,”[11] Baird v. Baird, 2014 UT 08, ¶ 25, 322 P.3d 728; see also Utah Code § 76-5­106.5(2). The district court found that “a reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than an inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” I would conclude that the court’s approach that led to this finding suffered from a legal error and that the court exceeded its discretion when it excluded certain evidence related to this finding.

¶93 A determination of whether Doug’s Facebook post and comments would have caused emotional distress involves an “objective inquiry into whether [Doug’s] conduct would have caused a reasonable person in [Troy’s] circumstances emotional distress.” Baird, 2014 UT 08, ¶ 21. This objective inquiry is “an individualized objective” inquiry, “meaning that a court must consider the entire context surrounding the [alleged stalker’s] conduct,” Anderson v. Deem, 2023 UT App 48, ¶ 29, 530 P.3d 945 (cleaned up), including, as we have already noted, “such factors as the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking, . . . the cumulative effect of the defendant’s repetitive conduct[, and] whether the behavior might cause damage to one’s reputation, relationships, or livelihood,” Richins v. Weldon, 2023 UT App 147, ¶ 67, 541 P.3d 274 (cleaned up); see also State v. Miller, 2023 UT 3, ¶¶ 84, 86, 527 P.3d 1087; Ragsdale v. Fishler, 2021 UT 29, ¶ 45, 491 P.3d 835; Baird, 2014 UT 08, ¶ 27. “In this context, acts that seem perfectly innocent or even well intentioned may constitute stalking. For example, conduct such as sending the victim a dozen roses may seem benign and loving to the casual observer, but could mean a very different thing when understood in the context of the victim’s experience.” Ragsdale, 2021 UT 29, ¶ 45 (cleaned up). Moreover, courts “must consider the conduct cumulatively.” Id. (cleaned up).

¶94 At the outset of the contempt hearing, the district court expressly stated its view that “the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. As the majority opinion on this issue points out, the court thereafter did say that it would “take judicial notice of the [Stalking Injunction] and the findings that [the previous judge] made in relation to . . . issuing” it, and the court admittedly had before it evidence of many of the circumstances surrounding the controversy in general. However, after the court expressed its willingness to take judicial notice of the Stalking Injunction and the findings that the previous judge had made in relation to it, the court again affirmed its view that “the scope of [the contempt] proceeding” allowed it to consider only the “limited allegations of the order [to show cause],” not the circumstances surrounding the issuance of the Stalking Injunction in the first place. If we take the district court at its word—and I do—even if it took judicial notice of the findings that the previous judge made in relation to the Stalking Injunction, it did not consider those facts when ruling on the contempt motion.

¶95 A conclusion that the district court did not properly consider the entire context surrounding Doug’s conduct is further supported by an evidentiary ruling the court made at the contempt hearing. Specifically, the court limited testimony at the hearing to “testimony in regards to the allegations in the contempt proceeding.” While a judge who presides over both a stalking injunction hearing and a subsequent contempt hearing may not need to rehear evidence of the events leading to the stalking injunction to be able to fulfill its charge to consider the entire context surrounding the stalker’s conduct when deciding the contempt issue, in this case the same judge did not preside over both hearings. And because the first judge’s findings fell far short of telling the whole story of the parties’ history, the second judge’s willingness to take judicial notice of those findings was insufficient to demonstrate that it met its charge. For example, the TKS parties alleged various misdeeds by Doug that the first judge did not discuss when determining whether there was a course of conduct justifying issuance of the Stalking Injunction. See supra ¶¶ 9, 13–16. Accordingly, I believe the court abused its discretion by excluding from the contempt hearing evidence of the events surrounding the issuance of the Stalking Injunction on the basis that it was irrelevant to the contempt proceeding. And that abuse of discretion further confirms that the district court did not properly consider the entire context surrounding Doug’s conduct when it ruled on the contempt issue.

¶96 The majority opinion on this issue begins by correctly reciting “a few background concepts,” including the standard of review related to a district court’s factual findings and the burden of proof related to criminal contempt. Infra ¶¶ 103‒05. But as the majority opinion on this issue recognizes, those concepts come into play only if “a district court applies the correct legal standard.” Infra ¶ 103. And the correct legal standard was whether, considering the entire context, Doug’s Facebook post and comments would have caused a reasonable person in Troy’s position emotional distress. And, as explained, it is the district court’s repeatedly expressed intention not to consider the entire context that undergirds my opinion on this issue.

¶97      The majority opinion on this issue also states, alternatively, that, even assuming the district court did not consider the entire context surrounding Doug’s Facebook post and comments, no reasonable factfinder who had considered the entire factual context could conclude beyond a reasonable doubt that Doug’s Facebook post and comments were more than a “blip on the radar screen” and were capable of causing a person in Troy’s position emotional distress. Infra ¶¶ 107, 113. I disagree. As already noted, even the “seem[ingly] . . . innocent” or “well intentioned” “sending [of] . . . a dozen roses” might, in some circumstances, constitute a violation of a stalking injunction “when understood in the context of the victim’s experience.” Ragsdale, 2021 UT 29, ¶ 45 (cleaned up). In light of that, and given the established context of “division,” “escalated” tensions, and “great turmoil” into which the Facebook post and comments were placed, I am not prepared to hold as a matter of law that no reasonable factfinder considering the entire context could determine that the post and comments would cause an ordinary person in Troy’s position emotional distress.

¶98 For the foregoing reasons, I would vacate the court’s finding as to whether Doug’s Facebook post and comments would cause a reasonable person in Troy’s position emotional distress and direct that the court make a new finding on this issue as well.[12]

CONCLUSION

¶99      We have jurisdiction over Doug’s appeal. As to his appeal, the district court did not interpret or apply the stalking statute erroneously when it found a course of conduct directed at Troy. The court’s finding that Doug knew or should have known that his course of conduct would cause a reasonable person in Troy’s position emotional distress was not clearly erroneous. And the court did not abuse its discretion by dismissing the TKS parties’ tort claims without prejudice.

¶100 As to the TKS parties’ appeal, we unanimously affirm the district court’s determinations to apply the criminal standard in the contempt proceedings and to not hold Doug in contempt for communicating with Prior Customer. Additionally, based on Judge Harris’s opinion, joined by Judge Orme, we also affirm the district court’s determination to not hold Doug in contempt based on the allegation that his Facebook post and comments violated the No Contact Order.

HARRIS, Judge (concurring in part and authoring the Opinion of the Court as to Part II.B.2.b, in which ORME, J., joined):

¶101 Judge Orme and I join the first 83 paragraphs of the lead opinion without reservation. That is, we agree that this court has jurisdiction over Doug’s appeal—as a direct appeal and not as a cross-appeal—and that, on the merits of that appeal, the district court did not err in issuing the Stalking Injunction, nor did it abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. We also agree that, with regard to the TKS parties’ appeal, the district court correctly treated the motion for contempt sanctions as a motion to hold Doug in criminal contempt rather than civil contempt, and we further agree that the court did not commit reversible error either (a) in finding that Doug’s communication with Prior Customer was not contemptuous or (b) in determining that Doug’s Facebook communications did not violate the No Contact Order. To that extent, we concur fully in the lead opinion.[13]

¶102 We disagree, however, with the lead opinion’s conclusion that the district court committed reversible error in determining that the TKS parties had not proved, beyond a reasonable doubt, that Doug’s Facebook communications violated the Personal Conduct Order. In particular, we take issue with the lead opinion’s assessment regarding the emotional distress component of the analysis. On that score, we agree wholeheartedly with the district court’s determination that “reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” On that basis, we affirm the judgments of the district court in their entirety, a result that will bring this case to a well-deserved conclusion and present no need for further proceedings on remand.

¶103 Let us begin with a few background concepts, starting with the applicable standard of review. Assuming that a district court applies the correct legal standard—an “individualized objective standard,” see Baird v. Baird, 2014 UT 08, ¶ 26, 322 P.3d 728—its determination regarding whether a claimant suffered the sort of emotional distress the stalking statute contemplates is a factual finding that we review only for clear error. See Richins v. Weldon, 2023 UT App 147, ¶ 42, 541 P.3d 274 (reviewing an emotional distress finding, in this context, “for clear error” (cleaned up)). In this case, the district court applied the correct standard, expressly asking whether “a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person,” suffered emotional distress. Accordingly, the court’s ultimate finding regarding emotional distress is, in this case, a determination we review only for clear error.

¶104 Moreover, the overarching standard of review generally applicable in contempt cases is quite deferential. Indeed, the lead opinion, supra ¶ 36, acknowledges that—regardless of whether the case involves civil or criminal contempt—a district court’s “decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court’s action is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.” Anderson v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d 464 (cleaned up).

¶105 We also note that the TKS parties were seeking criminal contempt, not civil contempt, and therefore they were required to prove Doug’s contempt beyond any reasonable doubt. See supra ¶¶ 69–73. This is the most stringent burden of proof found in the law, and the district court recognized this concept in its ruling.

¶106 Furthermore, the type of emotional distress at issue here is something far greater than mere annoyance. Utah’s stalking statute—incorporated into the Personal Conduct Order—defines “[e]motional distress” to mean “significant mental or psychological suffering.” Utah Code § 76-5-106.5(1)(a)(ii)(A) (2021). This court has previously noted that this definition requires claimants to demonstrate that they have suffered more than just “some emotional distress.” See Noel v. James, 2022 UT App 33, ¶ 20, 507 P.3d 832; see also Meyer v. Aposhian, 2016 UT App 47, ¶ 16, 369 P.3d 1284 (affirming a district court’s determination that the incidents in question, while “upsetting, intimidating, and annoying,” were not sufficient to cause the sort of emotional distress contemplated by the stalking statute).

¶107 With these foundational principles in mind, we see no error at all—let alone a clear one—in the district court’s determination that “reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” In the grand scheme of this family’s lengthy dispute, this Facebook post was merely a blip on the radar screen, and the district court was well within its contempt-case discretion to determine that the TKS parties hadn’t proved, beyond a reasonable doubt, that—of all things in this case’s history—it was these rather innocuous Facebook communications that tipped Troy over the emotional edge into “significant mental or psychological suffering.”

¶108 The lead opinion’s inclination to reverse and remand on this point appears largely driven by the district court’s (perhaps somewhat ill-considered) remarks that “any of the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. In our view, one reasonable reading of the court’s remarks is simply that it did not want to unduly elongate the evidentiary hearing by having witnesses come in and rehash the same testimony they’d given under oath some nine months earlier. Indeed, at one point the court referred to its request—made previous to the contempt hearing—that “the parties . . . provide declarations of any witnesses,” and it stated that it had made that request in an attempt “to avoid going back to other proceedings and trying to listen to the” audio recording of the previous hearing. Nevertheless, the lead opinion has decided to “take the district court at its word” and assume that, because of these remarks, the court “did not properly consider the entire context surrounding” Doug’s Facebook communications. See supra ¶¶ 94–95.

¶109 Our reading of the record is different from the lead opinion’s. As we see it, the district court actually did consider the entire context of the case in making its contempt ruling, even if it refused to allow additional testimony and evidence to be re­presented at the hearing. At the contempt hearing, during the debate over the scope of the witnesses’ testimony, the court noted that “there is a record with regard to” what had happened at the previous hearing that could be reviewed and consulted. The court then expressly took “judicial notice of the fact that there were prior proceedings” and “judicial notice of the [Stalking Injunction] and the findings” the prior judge made in entering it. Our reading of this exchange is that the court was not just taking judicial notice of the Stalking Injunction and related findings made by the previous judge, but of the “record with regard to” the previous hearing. Indeed, in its contempt order, the district court expressly stated that it had considered “the circumstances surrounding the case at bar” that had “created great turmoil in the extended Wilson family.”

¶110 Moreover, during that same debate, Troy’s counsel noted that Troy had submitted a lengthy declaration in advance of the contempt hearing, with the intent of informing the court about “what [Troy] had experienced prior to” the entry of the Stalking Injunction. That declaration was just one of many exhibits submitted by the parties with their briefing in advance of the contempt hearing; that briefing, including the exhibits, contained a whole lot of context and descriptions of past underlying events. Unless this court is aware of some indication to the contrary, it should presume that lower courts read the relevant briefing, including the submitted exhibits, before rendering a decision. See, e.g.Merrick Young Inc. v. Wal-Mart Real Estate Bus. Trust, 2011 UT App 164, ¶ 29, 257 P.3d 1031 (noting the lower court’s statement that it had “fully reviewed this matter” before making its ruling, and “presum[ing]” therefrom that the court “closely examined all of the documents filed in support of the parties’” positions). Here, the district court stated, at the hearing, that it had “received and reviewed all the declarations” submitted by the TKS parties, and it indicated in its final written ruling that it “took evidence and received briefing from the parties” and that it was “fully advised in the premises” before making its ruling. We therefore presume that the district court read all the material Troy submitted in support of his motion.

¶111 In addition, at the contempt hearing, the court heard live testimony not only from Troy but also from several other witnesses, including at least four other members of the family. Two of those witnesses—Troy and his sister—offered testimony about Troy’s reaction to Doug’s Facebook communications.

¶112 In our view, it is nigh on impossible to read the file in this case well enough to be able to rule on a contempt motion and not be fully aware of the circumstances surrounding the controversy in general and the Facebook communications in particular. Here, the district court not only read the file but then presided over an evidentiary hearing at which live testimony was presented and these matters were further discussed. We therefore reach a different conclusion than the lead opinion; as we see it, the district court considered all the relevant contextual circumstances before concluding that the TKS parties had not met their burden of proving that Troy had suffered emotional distress.

¶113 But be all of that as it may, even if we were to assume for purposes of the discussion that the district court truly did not consider the entire context surrounding Doug’s Facebook communications, the parties have—in this appeal—provided this court with all of that context, through briefing and citations to the record, and we have certainly considered that contextual evidence. After undertaking that consideration, we are of the view that—to the extent the district court actually failed to consider the underlying circumstances—any error on the part of the court here was harmless. In our view, no reasonable factfinder, after considering the contextual evidence to which the TKS parties now point, could conclude beyond a reasonable doubt that Doug’s “John Dough” Facebook posts caused a reasonable person in Troy’s position to suffer the sort of significant emotional distress contemplated by the stalking statute.

¶114 Accordingly, for all these reasons, we part ways with the lead opinion’s analysis in paragraphs 90 through 98. On this record, reasonable doubt exists as to whether a reasonable person in Troy’s shoes would have sustained significant mental or psychological suffering from Doug’s Facebook posts. The district court’s contempt ruling was sound, and we therefore affirm it. Because we agree with the lead opinion’s analysis affirming the court in all other respects, the court’s rulings are affirmed across the board.

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


[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah).

[2] Because the parties share a surname, we use their given names, with no disrespect intended by the apparent informality.

[3] As explained in more detail below, although Doug’s appeal has been designated as a cross-appeal for ease of reference, the two appeals in this matter are separate and distinct appeals. See infra note 5.

[4] The stalking statute was amended after the events relevant to this appeal. Compare Utah Code § 76-5-106.5 (2020), with id. (2024). Because the changes to the relevant text are mostly minor and do not affect our analysis, we cite the current version of the statute except where the text has materially changed. See infra note 9.

[5] We are not unaware of rule 4(d) of the Utah Rules of Appellate Procedure, which states that “[i]f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed.” If rule 4(d) applied here, Doug would have had fourteen days from the date the TKS parties filed their notice of appeal to file his notice of appeal, and Doug in fact did file his notice of appeal within fourteen days of when the TKS parties filed theirs. But rule 4(d) does not apply here. This matter involves both the TKS parties’ original lawsuit and a subsequent criminal contempt proceeding, see infra ¶¶ 69‒73 (concluding that the district court did not abuse its discretion in classifying the contempt proceeding as criminal), and a criminal contempt proceeding is an action “separate and apart from the [principal] action,” Robinson v. City Court, 185 P.2d 256, 258 (Utah 1947). Because the original lawsuit and the contempt proceeding are separate actions, the appeal deadlines for those separate actions operate independently. See Burgers v. Maiben, 652 P.2d 1320, 1322 (Utah 1982) (per curiam) (holding that a notice of appeal that was untimely to perfect an appeal from the original action was timely and conferred appellate jurisdiction to review a related criminal contempt proceeding). Thus, notwithstanding that they have been designated cross-appeals for ease of reference and share a common appellate case number, the two appeals in this matter are separate, and the deadline for Doug to perfect his appeal from the TKS parties’ original lawsuit was thirty days after entry of the final judgment in that lawsuit, see Utah R. App. P. 4(a).

[6] Our supreme court has said that In re Cendant Corp., 454 F.3d 235 (3d Cir. 2006), “provides a helpful description of what a proper separate judgment should look like.” Griffin v. Snow Christensen & Martineau, 2020 UT 33, ¶ 21, 467 P.3d 833.

[7] We understand this to be Doug’s argument because the Stalking Injunction was entered in favor of Troy and not in favor of TKS. Because the Stalking Injunction was not entered in favor of TKS, this case cannot implicate or resolve the issue of whether a stalking injunction may be issued in favor of a company. With our supreme court, “we note that at least one court has found its state’s civil stalking statute to ‘protect[] institutions as well as people.’” Ragsdale v. Fishler, 2021 UT 29, ¶ 39 n.29, 491 P.3d 835 (quoting Board of Regents-UW System v. Decker, 2014 WI 68, ¶ 26, 850 N.W.2d 112 (alteration in original)). But again, this case does not raise that issue, and we, like the supreme court before us, do not address it. See id.

[8] We see in the record no explicit finding that Doug knew or should have known that his course of conduct would cause a reasonable person to suffer emotional distress. Generally, however, “unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.” Uhrhahn Constr. & Design, Inc. v. Hopkins, 2008 UT App 41, ¶ 23, 179 P.3d 808 (cleaned up). And here, the necessary finding regarding emotional distress is implicit in the court’s statement that “although [the course of conduct] was aimed at the company, [it] was aimed at the company in a particularly harmful way and . . . satisfies the requirements of the stalking [statute].” At a minimum, Doug makes no argument to the contrary.

[9] In contrast, the current version of the code requires a finding that the actor “[knew] or [wasreckless as to whether the course of conduct would cause a reasonable person . . . to fear for the individual’s own safety or the safety of a third individual” or “to suffer other emotional distress.” Utah Code § 76-5-106.5(2)(a) (emphasis added).

[10] While we have concluded that the district court correctly interpreted the stalking statute and that its findings here are supported by the evidence, courts should remain cautious about allowing civil stalking injunctions to be used as tools in commercial litigation.

[11] The TKS parties do not argue that the Facebook post and comments would have caused a reasonable person in Troy’s position to fear for his or her safety or the safety of a third person.

[12] The TKS parties also contend that “[t]he district court erred in categorically finding that ‘all of the witnesses from [the] Wilson family possess such significant biases that the court cannot credit any of their testimony beyond a reasonable doubt.’” However, “the factfinder serves as the exclusive judge of both the credibility of witnesses and the weight to be given particular evidence.” State v. Jok, 2021 UT 35, ¶ 28, 493 P.3d 665 (cleaned up). This includes when the trial court is the factfinder. See In re J.R.H., 2020 UT App 155, ¶ 17, 478 P.3d 56 (“Trial courts . . . have wide latitude to make credibility determinations, and we defer to such determinations . . . .”). Hence, I believe the TKS parties have not demonstrated error on this point.

[13] Moreover, we take no issue with the lead opinion’s analysis in paragraphs 86 through 88, in which the lead opinion expresses a desire to “vacate the district court’s finding that ‘no evidence exists [that] Doug knew speaking indirectly about Troy would violate the [Personal Conduct Order].’” But our affirmance of the court’s emotional distress determination is, by itself, sufficient to conclude our analysis on the overarching question of whether Doug’s Facebook communications violated the Personal Conduct Order; thus, Judge Orme and I do not need to specifically assess the other elements contained in Part II.B.2.b of the lead opinion.

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Elder v. Elder – 2024 UT App 68 – enforcement vs. modification

Elder v. Elder – 2024 UT App 68

THE UTAH COURT OF APPEALS

BRITTANY LEE ELDER, Appellee, v. MATT BLAKE ELDER, Appellant.

Opinion No. 20210902-CA Filed May 9, 2024

Second District Court, Farmington Department

The Honorable David M. Connors No. 154700355

Julie J. Nelson and Jaclyn Robertson, Attorneys for Appellant Steven C. Tycksen, Attorney for Appellee

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

TENNEY, Judge:

¶1 The district court issued an order requiring Matt Blake Elder to reimburse his ex-wife, Brittany Lee Elder, for the amount she had paid to satisfy a loan on a townhouse that she had been awarded in the divorce.[1] Matt challenges this ruling on appeal, arguing that it was a procedurally improper modification of the couple’s divorce decree. For the reasons set forth below, we affirm.

BACKGROUND

¶2 Brittany and Matt were married in 2008. In early 2015, Brittany filed a petition for divorce. Later that year, Brittany and Matt entered into a stipulated agreement that the district court subsequently adopted in a Decree of Divorce (the Decree). Under a “Division of Property” heading, the Decree divided the couple’s real property, vehicles, and other personal property. Matt received the “marital home along with any accompanying debts and/or equity.” Of note here, Brittany was awarded a townhouse “as an equalization of the distribution of the assets.” The Decree specified that “Matt will be responsible for any loans associated with the townhouse and have them paid off within 120 days of signing this Stipulation.”

¶3        A separate provision in the Decree was captioned “Remedies on Default.” It stated that in “the event that either party defaults in her or his obligations, or must seek relief from the Court in the enforcement of the Decree of Divorce, the nonprevailing party shall be liable to the other party for all reasonable expenses, including attorneys’ fees and court costs actually incurred.”

¶4        Matt failed to remove the loan on the townhouse within 120 days. After that 120-day period expired, Brittany filed a motion for an order to show cause. In this motion, Brittany asked the court to hold Matt in contempt for failing to comply with several terms of the Decree—including, of note here, his obligation to pay off the loan associated with the townhouse. The district court later issued an order in which it refused to find Matt in contempt on the townhouse issue, but it did order Matt to “remove all liens on the townhouse” within 30 days. Matt failed to comply with this order.

¶5        In 2017, Matt filed for bankruptcy. Later that year, Brittany sold the townhouse. “[P]ursuant to a short sale agreement she made with the bank,” she paid off a discounted loan balance of $143,165.

¶6        In April 2019, Brittany filed another motion for an order to show cause relating to the townhouse. In this motion, Brittany requested a judgment in excess of $180,000, a figure that included the final loan balance, realtor’s commissions, closing costs, and repairs that she alleged were necessary to make the townhouse habitable.

¶7        During a hearing in July 2020, the district court noted that a domestic relations commissioner had certified for hearing the issue of “the amount [Matt] should pay [Brittany] due to his failure to have the liens removed from the townhouse.” At that point, Brittany’s counsel expressed the desire to conduct discovery on the issue. In response, Matt’s counsel suggested that she wasn’t sure if discovery was warranted because there was “no petition to modify pending,” after which she asked the court to “clarif[y]” whether it would “allow[] there to be discovery between the parties.” The court responded that it was allowing “discovery” on “what amounts, if any,” it should order Matt to pay Brittany for his “failure to have the liens removed from the townhouse,” and the court specifically ruled that the parties could depose each other on this if they wished.

¶8        Brittany subsequently submitted interrogatories, a request for production of documents, and requests for admission to Matt. For his part, Matt issued several subpoenas duces tecum to financial institutions. At a pretrial hearing in November 2020, Brittany argued that Matt’s responses to her requests for admission had been inadequate. Over the protest of Matt’s counsel, the court agreed that Matt’s responses had been inadequate and ordered Matt to submit more detailed responses. In the course of that hearing, Matt never argued that he was being deprived of the opportunity to conduct discovery of his own.

¶9        A few weeks later, the court held an evidentiary hearing on the question of “potential damages connected with the failure to deliver the title” to the townhouse “free and clear of liens.” At that hearing, both parties presented extensive arguments about their positions.

¶10      After almost a year of additional litigation, the court issued a written ruling on Brittany’s motion for an order to show cause. There, the court first noted that the provision in the Decree that made Matt “responsible” for any loans associated with the townhouse had “never been modified.” The court also ruled that Matt’s bankruptcy had not discharged his obligations relating to the townhouse.

¶11      The court then found that Matt had “failed to satisfy, pay off or remove the liens related to the loans associated with” the townhouse and that Matt’s failure had “forced” Brittany to sell the townhouse in order to pay off the discounted loan balance. The court also found that the “actual amount paid by” Brittany to the bank “to remove the lien” on the townhouse “that was associated with the loan was $143,165.00.” And it further found that the “required payment of this amount” by Brittany “was a direct result of [Matt’s] failure to comply with the provisions of the Decree of Divorce.” The court accordingly awarded Brittany “the actual amount she paid the bank, $143,165,” plus post-judgment interest, though it then determined that she was not entitled to any additional amounts related to the renovation and sale of the townhouse. Finally, the court awarded Brittany her “reasonable expenses, including attorney fees and court costs actually incurred, related to the issue of [Matt’s] failure to comply with his obligations” under the Decree.

ISSUE AND STANDARD OF REVIEW

¶12 Matt challenges the district court’s ruling granting Brittany’s motion for an order to show cause. In Matt’s view, the ruling was not a valid enforcement of the Decree but instead improperly modified it. “We review procedural issues for correctness and afford no deference to the lower court’s ruling.” Berman v. Yarbrough, 2011 UT 79, ¶ 12, 267 P.3d 905.[2]

ANALYSIS

¶13 Matt argues that when the district court ordered him to reimburse Brittany for what she had paid to satisfy the loan on the townhouse, the court modified the Decree. In Matt’s view, because Brittany had only filed an enforcement action, not a modification action, this ruling was procedurally improper. We disagree with Matt’s assessment of the nature of the ruling.

¶14 District courts enjoy “inherent” authority, “when properly invoked,” to “enforce a final judgment.” Little Cottonwood Tanner Ditch Co. v. Sandy City, 2016 UT 45, ¶¶ 23–24, 387 P.3d 978 (quotation simplified); see also id. ¶ 33 (explaining that district courts may “make such orders as may be necessary to carry out and give effect to their decrees” (quotation simplified)). “If a party fails to comply with a specific directive of a judgment, another party to the judgment may move to enforce this directive.” Id. ¶ 24. However, a “court’s power to enforce a judgment is confined to the four corners of the judgment itself.” PacifiCorp v. Cardon, 2016 UT App 20, ¶ 6, 366 P.3d 1226 (quotation simplified). And a “motion to enforce cannot be used to take up matters beyond the contours of the judgment and thereby short-circuit the usual adjudicative processes.” Berman v. Yarbrough, 2011 UT 79, ¶ 15, 267 P.3d 905 (quotation simplified). A motion to enforce is thus “procedurally improper” where a judgment contains neither an “unequivocal mandate” nor a “clear directive” enjoining “the respondent to undertake some action.” Id. (quotation simplified). This is so because, “without a directive or unequivocal mandate, there is nothing for the court to enforce.” Id.[3]

¶15 Separate from the enforcement power, courts in some instances have power to modify a final judgment that has already been entered. And we’ve previously recognized that a key difference between the power to modify and the power to enforce is that the latter does “not generally extend to modifying the substantive rights of parties that have previously been agreed to or adjudicated.” Robertson v. Stevens, 2020 UT App 29, ¶ 8, 461 P.3d 323. In the family law context, “proceedings to modify a divorce decree . . . must be commenced by filing a petition to modify.” Utah R. Civ. P. 106(a). And a petition to modify allows courts to “revisit many of the provisions contained in a typical divorce decree, including provisions pertaining to child custody, child support, alimony, property distribution, and debts,” under the terms set forth by certain statutes. Robertson, 2020 UT App 29, ¶ 7.

¶16      Here, Brittany filed a motion for an order to show cause, which, as noted, was the procedural mechanism at the time for filing an enforcement action. But Brittany did not file a petition to modify the Decree. The question before us, then, is whether the district court moved beyond its enforcement powers when it ordered Matt to reimburse Brittany for what she had paid to satisfy the loan on the townhouse. Put differently, the question is whether this ruling was authorized from within “the four corners of the judgment,” Little Cottonwood, 2016 UT 45, ¶ 24 (quotation simplified), or whether it instead “modif[ied] the substantive rights of [the] parties,” Robertson, 2020 UT App 29, ¶ 8. In our view, this was indeed an enforcement ruling, as opposed to a modification, because it was grounded in the four corners of the Decree itself and did not alter the parties’ substantive rights.

¶17 “We interpret a divorce decree according to established rules of contract interpretation.” Osborne v. Osborne, 2011 UT App 150, ¶ 6, 260 P.3d 202 (quotation simplified). “When interpreting a contract, a court first looks to the contract’s four corners to determine the parties’ intentions, which are controlling.” Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179. “If the language within the four corners of the contract is unambiguous, then a court does not resort to extrinsic evidence of the contract’s meaning, and a court determines the parties’ intentions from the plain meaning of the contractual language as a matter of law.” Id. Finally, in “interpreting a contract, we determine what the parties intended by examining the entire contract and all of its parts in relation to each other, giving an objective and reasonable construction to the contract as a whole.” G.G.A., Inc. v. Leventis, 773 P.2d 841, 845 (Utah Ct. App. 1989).

¶18 The Decree in question stated that “Matt [would] be responsible for any loans associated with the townhouse and have them paid off within 120 days of signing this Stipulation.” And it further explained that the townhouse was being awarded to Brittany “as an equalization of the distribution of the assets.” In this sense, the Decree plainly contemplated that Brittany would receive the townhouse free and clear. But she didn’t. As indicated, Matt failed to pay off the loan within 120 days. And when the court subsequently issued another order requiring Matt to remove the liens within an additional 30-day period, Matt failed to comply with that order too.

¶19 In the ruling at issue, the court found that Brittany was ultimately “forced to sell” the townhouse and “pay the discounted bank loan balance in the amount of $143,165,” and it further found that the “required payment of this amount” by Brittany “was a direct result of [Matt’s] failure to comply with the provisions of the Decree.” Matt has not challenged these findings on appeal.

¶20 In light of these findings, the order requiring Matt to reimburse Brittany was a proper exercise of the court’s enforcement power. The language of the Decree didn’t narrowly require Matt to pay a particular amount to a particular bank. Rather, the provision in question was worded more broadly, requiring Matt to “be responsible for any loans associated with the townhouse” and requiring him to “have them paid off within 120 days.” (Emphasis added.) As a result, when Brittany was subsequently “forced” to pay the loan off herself due to Matt’s failure to comply with his obligations, the court’s decision to place that financial burden back onto Matt’s shoulders did nothing more than “carry out and give effect” to the Decree’s own terms. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified).

¶21      Matt responds on several fronts, but we find none of them availing.

¶22      First, Matt argues that under the principles set forth in Gullickson v. Gullickson, 2013 UT App 83, 301 P.3d 1011, the court’s order could only have been accomplished through a modification action. We disagree. In Gullickson, the divorce decree had set forth a specific arrangement for how to deal with the marital home after the divorce: namely, the wife was permitted to live in it for a period of five years, during which period she was responsible for making the mortgage payments; at the end of the five years, the husband would be required to either buy out the wife’s share of the equity in the home or instead sell it and give her half of the proceeds. Id. ¶ 2. Of some note, the arrangement under which the wife could remain in the home for five years was “prompted at least in significant part” by the “ongoing special needs” of the parties’ son. Id. ¶ 22. When the wife subsequently faced a changed financial situation, however, she decided to move from the home earlier than planned. Id. ¶ 4. To facilitate this, she “filed a petition to modify the divorce decree,” asking the court to require the husband to either buy her out sooner than was required by the decree (thus changing the time-period set forth in that decree), or to instead agree that she could move from the home and rent it out in order to help her pay the mortgage. Id. ¶ 4. The district court granted the wife’s request and directed the husband to make that choice. Id. ¶¶ 6–7, 13.

¶23 On appeal, we considered various questions relating to whether the district court had properly followed the modification procedures. Id. ¶¶ 21–25. Drawing on aspects of that discussion, Matt now suggests that Brittany’s request in this case could only have been brought as a modification petition. But unlike the wife in Gullickson, Brittany did not file a petition to modify her divorce decree; rather, she filed a motion for an order to show cause, so she chose an entirely different procedural tack all along. Moreover, unlike the wife in Gullickson, Brittany did not ask the court to change any particular term of her divorce decree. Rather, when Brittany asked the court to order Matt to reimburse her for the pay-off amount on a loan that Matt was supposed to have paid from the beginning, Brittany was asking for Matt to be held “responsible” for that loan, which is what her divorce decree already required. Thus, Gullickson involved a modification because the order changed that divorce decree’s terms; by contrast, this case involved an enforcement action because it sought to effectuate the divorce decree’s terms. Gullickson therefore doesn’t mean that Brittany could only proceed through a modification action.

¶24      Second, Matt argues that because the Decree required him to pay off any loans within 120 days, and because the amount at issue had been paid by Brittany much later than those 120 days, the court’s order effectively changed the Decree’s essential terms, thus constituting a modification. If the Decree had only said that Matt was required to pay off a particular loan to a particular bank within 120 days, Matt’s argument might have a little more force (although we might still have some skepticism). But as noted, the Decree wasn’t worded that narrowly. In addition to the language Matt relies on, the Decree said that “Matt will be responsible for any loans associated with the townhouse,” and it further noted that Brittany was being awarded the townhouse “as an equalization of the distribution of the assets.” (Emphasis added.)

¶25 As indicated, when reading contracts or divorce decrees, we interpret surrounding provisions in harmony with each other. The unmistakable intent of the Decree was to require Matt to assume the financial obligations associated with the townhouse. When Matt repeatedly failed to do so in a timely manner, the court had authority to “make such orders as may be necessary to carry out and give effect” to these provisions. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified). Since it’s uncontested on appeal that Matt’s failure to timely pay off the loan “forced” Brittany to sell the townhouse, the order in question placed the financial cost of that sale back onto Matt, thereby making him “responsible” for the loan, which is what the Decree always required.

¶26 Third, Matt complains of the alleged unfairness that resulted from the court treating this as an enforcement action, as opposed to requiring Brittany to proceed through a petition to modify. According to Matt, if this had been filed as a modification petition, the rules would have provided him with delineated discovery powers. In Matt’s view, these discovery powers would have allowed him to obtain evidence to support various defenses, such as “whether Brittany could have (or even did) take mitigating action,” whether Brittany received any benefit from living in the townhouse between the time of the Decree and when Brittany sold it, and whether “the marital estate was smaller than the parties thought when they stipulated to its division.”

¶27      Matt’s concerns seem grounded in the fact that, both before and after the 2021 amendments, the rules don’t provide for formalized discovery relating to an enforcement action (whether filed as an old motion for an order to show cause or instead through a current motion to enforce). But the question of whether a party should automatically be entitled to discovery in an enforcement action is a question best left to those tasked with drafting the rules. Here, however, Brittany filed a motion for an order to show cause, and as explained above, that motion was warranted to enforce the terms of the Decree. We see no basis for overturning the district court’s ruling simply because the rule drafters have not provided for automatic discovery in such cases.

¶28    In any event, even if it’s possible that the absence of automatic discovery might result in some unfairness in some other enforcement action, Matt is not in a position to complain about any such unfairness here. As noted, the district court specifically allowed the parties to conduct discovery—including taking depositions, if the parties desired—on “what amounts, if any,” the court “should order [Matt] to pay [Brittany] due to the failure to have the liens removed from the townhouse.” In reliance on that, Matt issued several subpoenas duces tecum to financial institutions. And Matt never argued below that he was being deprived of the opportunity to conduct any additional discovery.

¶29      Moreover, Matt also has not persuaded us that any of the proposed evidence would have constituted a valid defense to Brittany’s request for relief. Under the Decree, Brittany was entitled to receive the townhouse without any loans as of 120 days after the stipulation was signed. Nothing in the Decree obligated her to take any mitigation efforts if Matt failed to comply with his obligations to pay off the loans, and any benefits that she received from living in the townhouse in the ensuing years were benefits that she was always entitled to receive. As for Matt’s claim that the parties underestimated the marital estate’s size, we note that Matt stipulated to the terms of the Decree. If he later thought that some error had infected that stipulation or the ensuing Decree, he could have made his own request to somehow alter or modify it. But what Matt wasn’t entitled to do was simply not comply with its terms. And in the meantime, Brittany was entitled to ask the court to enforce the Decree as written, which is what she did.

¶30      In short, we conclude that the district court’s order appropriately “carr[ied] out and [gave] effect to” the terms of the Decree. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified). Because of this, the district court did not err in granting Brittany’s motion for an order to show cause.

¶31 As a final matter, Brittany has requested an award of attorney fees and costs that she incurred in this appeal, and she has done so pursuant to the same provision from the Decree that authorized the fee award she received below. That provision stated that in “the event that either party defaults in her or his obligations, or must seek relief from the Court in the enforcement of the Decree of Divorce, the nonprevailing party shall be liable to the other party for all reasonable expenses, including attorneys’ fees and court costs actually incurred.”

¶32      “If the legal right to attorney fees is established by contract, Utah law clearly requires the court to apply the contractual attorney fee provision and to do so strictly in accordance with the contract’s terms.” Vierig v. Therriault, 2023 UT App 67, ¶ 13, 532 P.3d 568 (quotation simplified), cert. denied, 537 P.3d 1013 (Utah 2023). And as a general matter, “when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Tronson v. Eagar, 2019 UT App 212, ¶ 39, 457 P.3d 407 (quotation simplified). Because Brittany has prevailed on appeal, she is entitled to her fees reasonably incurred on appeal. We therefore remand this case to the district court for determination of those fees and an entry of that award.

CONCLUSION

¶33      The ruling in question was a valid exercise of the district court’s power to enforce the Decree. As a result, we affirm the court’s decision and remand for an award of attorney fees reasonably incurred on appeal.

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


[1] Because the parties share a last name, we’ll refer to them by their first names moving forward, with no disrespect intended by the apparent informality.

[2] In his opening brief, Matt surmised that the district court’s ruling might be read as a contempt ruling, and he then argued that the ruling was not justified under the court’s contempt powers. In her responsive brief, Brittany declined to defend the ruling on this basis, instead insisting that it was a valid enforcement action. We accordingly address the ruling solely on those terms.

[3] The rule in effect at the time that Brittany filed the motion at issue allowed her to file an order to show cause, and it further stated that such a motion could be granted for the “enforcement of an existing order.” Utah R. Civ. P. 7(q) (2019). The cases we’ve discussed above referred to a court’s enforcement power.

Under a rule that became effective in May 2021 and that remains in place, a motion for an order to show cause in a “domestic relations action[]” is now referred to as a “motion to enforce.” See Utah R. Civ. P. 7B(a), (i), (j) (2023). (The same is true in civil cases more generally under rule 7A of the Utah Rules of Civil Procedure.) Rule 7B further provides that its process “replaces and supersedes the prior order to show cause procedure.” Id. R. 7B(j). As with the old regime, however, the new one turns on the court’s enforcement power. See id. R. 7B(a) (allowing a party to file a motion to “enforce a court order or to obtain a sanctions order for violation of an order”).

Neither party in this case has argued that this new rule was intended to alter the substantive scope of a court’s enforcement power, much less that the new rule did so in a manner that would change the outcome of this case. Having surveyed the matter ourselves, we see no authority suggesting that such a change was intended.

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2024 UT App 54 – Tilleman v. Tilleman – custody factors, income, fees

2024 UT App 54 – Tilleman v. Tilleman

THE UTAH COURT OF APPEALS

MICHAEL ROBERT TILLEMAN, Appellant, v. MICHAL CHRISTINE TILLEMAN, Appellee.

Opinion No. 20210637-CA Filed April 11, 2024

Fourth District Court, Provo Department

The Honorable M. James Brady No. 164402522

Julie J. Nelson, Attorney for Appellant, Douglas B. Thayer, Andy V. Wright, and Jessica Griffin Anderson, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1        Michael Robert Tilleman (Father) and Michal Christine Tilleman (Mother) were married and share one child (Child). Following rather contentious divorce proceedings, the trial court awarded sole legal custody of Child to Mother but awarded the parties joint physical custody. The court also imputed federal minimum wage income to Mother for child support purposes, and it awarded her attorney fees and costs.

¶2        On appeal, Father makes various arguments challenging the court’s legal custody award. He also contends that the court abused its discretion in imputing federal minimum wage income to Mother and in awarding her attorney fees and costs. Although we affirm several aspects of the court’s legal custody award, we nevertheless hold that the court abused its discretion in applying the wrong legal standard and accordingly reverse and remand for the court’s consideration of all the statutorily mandated custody factors. We also reverse the court’s imputation of Mother’s income and its attorney fee award and remand for further proceedings.

BACKGROUND[1]

¶3        Mother and Father married in 2013, and Child was born a little over a year later. In 2016, following a separation, Father filed a petition for divorce. This was soon followed by Mother’s counter-petition for divorce. The trial court characterized the ensuing litigation as “contentious” and the parties as “unusually accusatory, intransigent, and uncooperative.” We limit our recounting of the divorce proceedings to facts relevant to the issues raised on appeal.

¶4        In 2018, the court entered a stipulated, bifurcated decree of divorce reserving for trial, in relevant part, the issues of custody, parent-time, child support, and attorney fees. Although the parties each initially sought sole physical custody and joint legal custody of Child, by the time of trial they had each amended their pleadings to request sole physical and sole legal custody of Child.

¶5        In conjunction with her counter-petition for divorce, Mother also filed a motion asking that the court order Father to undergo a psychological examination under rule 35 of the Utah Rules of Civil Procedure “to properly address his ability to parent” Child.[2] The motion alleged that Father “has exhibited intense anger toward [Mother] and has engaged in mental and emotional abuse,” that “such anger has been exhibited toward” Child, and that he “may be suffering from mental health conditions.”

¶6        Father opposed Mother’s rule 35 motion and denied its allegations. In turn, he asked the court to order that Mother undergo a rule 35 evaluation, alleging that she “has been verbally and physically abusive towards” him, that she “is unable to control her anger and aggressions towards” him, and that “recent irrational and inappropriate actions, behaviors, and instability indicate that she may be suffering from some form of mental illness.”

¶7        In 2017, at a hearing on temporary orders, Mother’s counsel informed the trial court that the parties had stipulated, among other things, “that either party can request and . . . the other party will participate in a Rule 35 mental health exam as long as the requesting party pays the cost up front.” Accordingly, the court’s temporary order included a provision stating that “[e]ither party may request the other party to participate in [a] Rule 35 examination at the requesting party’s expense.”

¶8        Mother subsequently provided Father with a list of three potential rule 35 evaluators, of which Father selected one (First Expert) to conduct his exam. When First Expert requested that Father sign medical releases for his psychological health records, Father refused. In response, Mother filed a motion requesting that the court order Father “to sign and execute all necessary medical releases, upon presentation by [First Expert], so that [Father’s] Rule 35 mental examination can proceed as expeditiously as possible.” At a hearing before a commissioner on the matter, Father argued that he never agreed to sign medical releases and that his understanding of the stipulation was “that he was agreeing to an independent, objective, standardized psychological test.” He also argued that releasing his medical records “prejudices him down the road” because “it allows information that would not otherwise be admissible to become admissible.”

¶9        In ruling on the motion, the commissioner first stated that because the trial court—and not a jury—would be the finder of fact in this case, he did not consider prejudice “to be a significant issue.” Next, in addressing the scope of the rule 35 exam, the commissioner stated that based on his decades of experience interacting with mental health professionals, “the one thing that they all assure me is true [is that] the best predicter of future behavior is past behavior.” The commissioner also noted that the parties had not submitted affidavits from professionals indicating what their usual practice is for such evaluations. Thus, the commissioner recommended, “If it is the Rule 35 examiner’s professional opinion that certain information would assist him in completing his evaluation/report, then both parties shall cooperate in good faith and sign whatever releases for records or information the evaluator wants[.]” Father objected to the commissioner’s recommendation, but the trial court overruled his objection and ordered him to sign the requested medical releases.

¶10 Upon completion of the rule 35 evaluation, First Expert reached the following conclusions, as summarized by the trial court. First Expert noted that “Father was so guarded and defensive when he took the psychological testing that credible information from testing is not available.” First Expert did not observe Father with Child as part of the evaluation. Nevertheless, First Expert concluded, among other things, that Father exhibited “varying degrees” of several negative personality traits; that he “is a very persistent person,” which when “utilized to intimidate and control others” can cause substantial harm to himself and others; and that he “tends to place his own interests before those of others and is not invested in cooperative relationships.” See also infra note 5. First Expert also recommended against joint legal custody of Child.

¶11      In anticipation of trial, Father filed a motion in limine to exclude First Expert’s testimony, contending that his “report and his corresponding testimony have not been shown by [Mother] to be reliable, based on sufficient facts or data, and reliably applied to the facts as required by rule 702 of the Utah Rules of Evidence.” See Utah R. Evid. 702(b). In support of his motion, Father included a report from his own expert (Second Expert) who reviewed the rule 35 evaluation. Second Expert opined, among other things, that “the methodology employed” by First Expert “did not comport with generally accepted standards of practice.” He further stated that First Expert’s “recommendation against joint legal custody is concerning because there is no indication the purpose of the evaluation was to aid the Court in determining custody.”

¶12 Following a hearing, the court ruled that First Expert would be permitted to testify at trial because his “report and his . . . procedures, his methodology, and his data gathering and his qualifications meet that low threshold of showing an indicia of reliability.” But because First Expert’s “qualifications and methodology don’t meet the requirements for a custody evaluation,” the court limited his testimony by precluding him from offering his opinion on that subject at trial.

¶13 Toward the end of 2020, the court held a ten-day bench trial, after which it entered thirty-three pages of findings of fact and conclusions of law. In addressing custody, the court prefaced its findings by discussing Utah Code sections 30-3-10(2) and 30-3-10.2(2), which govern child custody determinations. Section 30-3-10(2) states, with our emphasis, that “[i]n determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent” and then lists various factors. The court interpreted that section to mean that it “is not required to make findings on all factors listed in” that section. Further, section 30-3-10.2(2) provides, again with our emphasis, that “[i]n determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10 and” additional factors listed in section 30-3-10.2(2). The court stated that it understood the interplay between the two sections to mean that when considering joint legal or physical custody of a child, it is “obligated to address the enumerated factors in” section 30-3-10.2(2), but that its consideration of each factor listed in section 30-3-10(2) is not mandatory.

¶14      The trial court then proceeded to make extensive findings pertaining to custody and parent-time, as summarized below. The court found that “[a] primary condition that permeated the marriage was Father’s underlying hostility,” which also “affected the first few years of [Child’s] life and [Father’s] early relationship with, and care for” Child. Throughout Child’s life, Mother has been Child’s primary caregiver. Although “Father rarely, if ever, held, fed, changed, or played with” Child during the marriage, since the separation he has cared for Child during his parent-time. Father and Mother have “demonstrated a strong desire for parent-time since their separation,” and Father “has rearranged work schedules and career goals to accommodate as much time as possible with” Child. His interactions with Child have “significantly improved,” and he “has bonded more with her.” But his “anger towards Mother occasionally interferes with his ability to see, understand, and meet the needs of” Child. Child “has a strong bond with Father” and “enjoys spending time with” him.

¶15 The court found that Mother consistently demonstrated the ability to meet Child’s developmental needs and that Father had demonstrated an improvement in his ability to do so, although the court was unsure whether this was a long-term change. Each parent was able to meet Child’s physical needs and to function as an effective parent, although Father’s “apparent lack of insight of how his anger towards Mother, and his efforts to embroil Mother in allegations of abuse,” see infra ¶ 17, “have physically impacted” Child and have interfered with his parenting abilities. The court determined that both parents have negatively impacted Child’s emotional wellbeing—albeit Mother to a lesser extent—through their poor responses and behaviors when in each other’s presence.

¶16      The court found that although “each parent has shown that they have the capacity and willingness to function as a parent to” Child, “[t]he difficulty lies in their inability to co-parent and properly interact with the other parent,” particularly during drop-off and pick-up, as well as when communicating about Child. Regarding drop-off and pick-up, the court stated that “[t]he difficulty comes about by actions of both parents, although Father more consistently causes [Child’s] transitions to be difficult” by not encouraging her to transition to Mother’s care and by saying things that “weigh negatively on [Child’s] emotions in a manipulative and passive aggressive manner.” Mother also occasionally expressed displeasure about Father’s behavior in Child’s presence. Concerning the parents’ communication, the court stated that in 2017, “[d]ue to the high level o[f] conflict,” it ordered Mother and Father to communicate through a third-party service that reviewed and, if necessary, edited and revised the messages they sent each other. The third-party service had to make substantial edits to many of Father’s messages and advised him that it would “not send emails that are threatening.” Because Father also became adversarial with the third-party service, it withdrew, and the parties had to find another communication intermediary. But in the months leading up to trial, communication between the parties had “been relatively civil.”

¶17 The court next expressed concern regarding Father’s “emotional and sometimes indirect physical abuse of” Child through his repeated claims, “without sufficient justification,” that Mother was physically abusive toward Child. Specifically, between 2017 and 2020, Father made multiple reports of abuse to various police departments, the Division of Child and Family Services (DCFS), and medical providers. This “exposed [Child] to unnecessary emotional trauma and invasive physical examinations” and never resulted in criminal charges being filed against Mother or in DCFS taking enforcement action against her. “When the agencies did not confirm his opinion, [F]ather became overly focused, argumentative, and belligerent” and “was unwilling to accept the many conclusions of DCFS.” The court found that “Father’s reports of abuse were vexatious and were calculated and designed to harm Mother,” and he either “was not aware of, or did not care about the emotional harm he was causing [Child] through the continuous filing of unsupported claims of abuse.”

¶18      The court then addressed Father’s rule 35 evaluation.[3] At trial, First Expert, Second Expert, and another expert (Third Expert) testified about the evaluation. The court noted that based on First Expert’s own testimony, it appeared that First Expert “primarily identified personality traits of [Father] from testing which [First Expert himself] considered invalid.” The court also agreed with many of Second Expert’s critiques of First Expert’s opinions, including that First Expert’s “opinions based on testing should not be considered” because First Expert “testified that the test results were unreliable due to Father’s high degree of defensiveness”; that First Expert “did not utilize many of the standard tests and methods for determining parenting capacity and therefore his opinions on parenting capacity are not helpful”; and that First Expert did not observe Father interact with Child. Accordingly, the court “found little value in much of [First Expert’s] diagnostic expert opinions,”[4] but it noted that, based on other trial testimony and on its own review of some of the records that First Expert examined that were also submitted into evidence, it agreed with his conclusions regarding Father’s negative characteristics and personality traits. Specifically, the court noted Father’s “historical demonstration of grandiosity, entitlement, interpersonal exploitativeness, lack of empathy, high levels of persistence, rigidity, lack of agreeableness, vexatious intimidation, along with a tendency to resort to arrogant and intimidating behaviors toward others, particularly when encountering others whom he believes stand in his way.” The court, however, rejected several of First Expert’s other opinions.[5]

¶19 The court also found Third Expert to be “qualified,” “credible,” and “an unbiased witness.” Third Expert testified that in counseling sessions, he “worked with Father to understand how to modify his behavior” and that Father had demonstrated improvement. Third Expert described Father’s current character traits as “[p]ersistent,” “[i]ntelligent,” “[e]ven keeled,” “[c]onstant in demeanor,” and “[a]ble to rise and process issues and disagreement more effectively.”

¶20      Turning to the question of legal custody, the court held that the presumption that joint legal custody is in the child’s best interest was rebutted in this case by the parties’ inability “to set aside their personal differences and focus on the needs of” Child, and it awarded sole legal custody to Mother. The court based this decision on several things: the difficulties the parties had in setting aside their personal differences to attend to Child’s needs, although it noted that Mother was better able to do so; Father’s emotional abuse of Child “by subjecting her to repeated interviews and physical examinations when he repeatedly raises allegations of abuse against Mother without sufficient cause”; “Father’s need to control and dominate Mother” and to disrespect her; Father’s “inability to recognize the value of input from others, including Mother”; Father’s history of being unable to effectively communicate with Mother; Father’s aggressive and passive-aggressive behavior during pick-up and drop-off and his failure to make it a less emotionally draining experience for Child; Father’s lack of encouragement that Child “equally share time, love and affection with Mother”; and Mother’s constant meaningful participation in raising Child, while Father did not do so for the first few years of Child’s life due to “his anger issues” and university studies.

¶21 Regarding physical custody, the court determined that it was in Child’s best interest “that Father be actively involved in her life” and that he “should have frequent and consistent time with” her so long as there were orders in place enforcing respectful communication between Mother and Father and reducing their interactions during pick-up and drop-off. Accordingly, the court awarded the parties joint physical custody, with Mother as the primary physical custodian and with Father having “frequent and expanded rights of parent time.”

¶22 The court then considered child support, the main issue of which was the income to be imputed to Mother. The court noted that Mother had left full-time employment when Child was born and that she was not employed at the time of trial, but she was attending university classes. The court found that Mother had the experience and skills to find employment in the fields of marketing and public relations with a likely starting income of between $2,500 and $2,800 per month. But the court also found that as a result, Mother would necessarily incur childcare costs and either have to terminate or significantly modify her studies. Ultimately, the court determined that Mother was voluntarily underemployed. But because there was insufficient evidence presented regarding childcare costs or whether current employment was “available in either of her experience categories, or what the current rate of pay would be,”[6] the court imputed to Mother “the federal minimum wage of $1,257 per month.” And based on Father’s actual income and Mother’s imputed income, the court ordered Father to make $666 monthly child support payments to Mother.

¶23      Finally, the court awarded Mother $161,066.94 in attorney fees and costs pursuant to Utah Code section 30-3-3, holding that Mother had substantially prevailed and finding, among other things, that Father had a greater ability to pay.[7]

¶24      Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶25      Father raises five primary issues on appeal. First, Father argues that the trial court erred in awarding sole legal custody of Child to Mother.[8] Specifically, he contends that the “court’s analysis of Utah Code sections 30-3-10 and 30-3-10.2 does not comply with Utah law.” Generally, we review a trial court’s custody award for an abuse of discretion. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “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.” Id. (quotation simplified). But whether the court correctly interpreted the legal standards set forth in sections 30-3-10 and 30-3-10.2 is a question of law that we review for correctness. See Ross v. Ross, 2019 UT App 104, ¶ 8, 447 P.3d 104. See also State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (stating that because “trial courts do not have discretion to misapply the law,” “the abuse-of-discretion standard of review will at times necessarily include review to ensure that no mistakes of law affected a lower court’s use of its discretion”) (quotation simplified).

¶26 Second, Father contends that the court abused its discretion when it found that he had emotionally abused Child. We review the trial court’s findings of fact for clear error. See T.W., 2021 UT App 132, ¶ 15. Under this standard, “the factual findings of the district court will not be disturbed unless they are clearly erroneous by being in conflict with the clear weight of the evidence. But the existence of conflicting evidence is not sufficient to set aside a district court’s finding.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 28 n.4, 505 P.3d 1136 (quotation simplified).

¶27      Third, Father argues that the trial court erred in allowing First Expert to testify at trial.[9] In reviewing the admissibility of evidence, we review the underlying legal questions for correctness and the “court’s decision to admit or exclude evidence and [its] determinations regarding the admissibility of expert testimony” for an abuse of discretion. Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 41, 513 P.3d 729 (quotation simplified). “However, error in the district court’s evidentiary rulings will result in reversal only if the error is harmful.” Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT App 134, ¶ 17, 351 P.3d 832.

¶28      Fourth, Father challenges the court’s imputation of federal minimum wage income to Mother for child support purposes. “We review the district court’s interpretation of statutory requirements for correctness” and “the court’s ultimate imputation of income . . . for abuse of discretion.” Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 23, 455 P.3d 1071 (quotation simplified).

¶29      Fifth, Father takes issue with the court’s award of attorney fees and costs to Mother under section 30-3-3 of the Utah Code. “We review a district court’s decision to award attorney fees pursuant to this statute for an abuse of discretion,” Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134, but review its underlying legal conclusions for correctness, see De La Rosa, 2019 UT App 110, ¶ 4.

ANALYSIS

I. Legal Custody Factors

¶30      Utah law establishes “a rebuttable presumption that joint legal custody . . . is in the best interest of the child.”[10] Utah Code Ann. § 30-3-10(3) (LexisNexis Supp. 2023). This presumption “may be rebutted by a showing by a preponderance of the evidence that [joint legal custody] is not in the best interest of the child.” Id. § 30-3-10(4)(b). The Utah Code also provides several factors to aid in the best interest analysis. See id. §§ 30-3-10(2), -10.2(2) (2019).

¶31      In challenging the trial court’s award of sole legal custody to Mother, Father argues that (A) the court wrongly interpreted Utah Code sections 30-3-10(2) and 30-3-10.2(2) to mean that its consideration of the factors listed in section 10(2) was discretionary; (B) the court’s application of the wrong legal standard resulted in its failure to consider certain relevant factors in its custody analysis; and (C) the court “analyzed certain factors only as they related to Father but not to Mother.”[11] We address each argument in turn.

A.        Statutory Interpretation

¶32 At issue is the interplay between Utah Code sections 30-3-10(2) and 30-3-10.2(2). Section 10(2) provides that “[i]n determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent[.]” Utah Code Ann. § 30-3-10(2) (LexisNexis 2019) (emphasis added). There then follows a list of factors, (a) through (r), several of which have subparts. See id. Taken in isolation, section 10(2) suggests that while the trial court must consider the child’s best interest when determining custody, the court has discretion as to which specific factors are appropriate for consideration in making that key determination.

¶33      But when joint legal or physical custody is at issue, section 10.2(2) also comes into play. That section provides that “[i]n determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10, and the following factors[.]” Id. § 30-3-10.2(2) (emphasis added). And here again, a number of factors are then listed, (a) through (i), several of which include subparts. See id.

¶34      The parties are at odds on whether, when joint custody is at issue, the court’s consideration of the section 10(2) factors is discretionary or mandatory. We agree with Father that, in undertaking any joint custody determination, courts are required to consider, in some fashion, all the section 10(2) factors and all the section 10.2(2) factors.

¶35 “Our primary goal when interpreting a statute is to ascertain the legislature’s intent,” the best evidence of which “is the plain language of the statute itself.” McKitrick v. Gibson, 2024 UT 1, ¶ 31, 541 P.3d 949 (quotation simplified). In this pursuit, “where the statute’s language marks its reach in clear and unambiguous terms, it is our role to enforce a legislative purpose that matches those terms, not to supplant it with a narrower or broader one.” Id. (quotation simplified). See Brindley v. Logan City, 2023 UT App 46, ¶ 22, 530 P.3d 557 (“When the meaning of a statute can be discerned from its language, no other interpretive tools are needed.”) (quotation simplified). Furthermore, to determine legislative intent “when two statutory provisions conflict in their operation, the provision more specific in application governs over the more general provision.” Taghipour v. Jerez, 2002 UT 74, ¶ 11, 52 P.3d 1252 (quotation simplified). With this charge, we look to the directives our Legislature mandated regarding determinations of joint custody.

¶36      Section 10(2) provides that when “determining any form of custody,” the court may consider, among other things, the factors listed in that section. Utah Code Ann. § 30-3-10(2) (emphasis added). Section 10.2(2), on the other hand, applies when the court is tasked with “determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both.” Id. § 30-3-10.2(2) (emphasis added). Thus, although both section 10(2) and section 10.2(2) purport to govern custody determinations, because section 10(2) applies more generally to “any form of custody,” id. § 30-3-10(2), and because section 10.2(2) “is tailored precisely” to address joint custody—the type of custody at issue here—section 10.2(2) is the more specific of the two provisions and thus governs, see Taghipour, 2002 UT 74, ¶ 14.

¶37 Therefore, based on the plain language of section 10.2(2) that “the court shall consider the custody factors in Section 30-3-10 and” additional factors listed in section 10.2(2), see Utah Code Ann. § 30-3-10.2(2) (emphasis added), our Legislature has deemed it necessary to impose additional requirements and heightened sensitivities regarding a court’s decision to order joint custody. In simple terms, this means that in cases where joint custody is under consideration, trial courts lose much of their discretion about which factors to consider. In other words, when considering the best interest of the child under section 10.2(2), the court is required to consider all the custody factors identified by both section 10(2) and section 10.2(2). Cf. Martinez v. Sanchez-Garcia, 2023 UT App 60, ¶ 21, 532 P.3d 105 (stating that under Utah Code section 30-3-10.4(2), which similarly states that when considering whether modifying a custody order is in the child’s best interest, the trial court shall consider the factors listed in section 10(2) and section 10.2(2), courts “are statutorily required to consider, at least in some form, twenty-five enumerated factors, as well as any other relevant factor”) (quotation simplified).

¶38 We note, however, that “not all [the section 10(2) and section 10.2(2)] factors are on equal footing, and a district court generally has 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. ¶ 22 (quotation simplified). “Some factors might not be relevant at all to the family’s situation, and others might be only tangentially relevant or will weigh equally in favor of both parents.” Id. For example, among the other custody factors, section 10(2) indicates that the court must consider “the relative benefit of keeping siblings together.” Utah Code Ann. § 30-3-10(2)(o). But in some cases, such as the one currently before us, the child does not have any siblings. In such circumstances, it is obviously unnecessary to analyze this factor because it is inapplicable to the court’s ultimate decision, although best practice suggests that the court should at least make a note of the factors it considers inapplicable in a given case. See Martinez, 2023 UT App 60, ¶ 22 n.6 (“Even with factors not relevant to the situation or factors that do not move the needle one way or the other, a court is well-served to at least mention those factors in its ruling and briefly indicate that it deems them irrelevant or of equal weight for each party. By mentioning them, even if only to say that they are irrelevant, a court ensures that the parties—and, significantly, a reviewing court—will be able to tell that the court at least considered them.”) (quotation simplified).

¶39 In sum, the trial court erred when it interpreted the relevant statutes to mean that its consideration of the section 10.2(2) factors was mandatory, while its consideration of the section 10(2) factors was discretionary. The court was required to consider, at least to some degree, all factors listed under both sections, and its failure to do so constituted an abuse of discretion. But “unless an appellant demonstrates that an error is prejudicial, it will be deemed harmless and no appellate relief is available.” See Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 (quotation simplified). We consider this question in conjunction with Father’s argument addressed in the next section of this opinion.

B.        Consideration of All Relevant Factors

¶40      Father argues that the trial court’s misinterpretation of the governing statutes resulted in its failure to consider a number of relevant factors. Specifically, he asserts that the court abused its discretion when it did not consider the parent’s “ability to provide personal care rather than surrogate care”; “the past conduct and demonstrated moral character of the parent”; and “previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community,” Utah Code Ann. § 30-3-10(2)(c)(iii), (d), (n) (LexisNexis Supp. 2023), even though he presented evidence at trial relevant to each of these factors.

¶41 As an initial matter, we commend the trial court for providing thirty-three pages of detailed findings in this matter, in which it addressed the majority of the section 10(2) and section 10.2(2) factors. But even given these extensive findings, the court expressly stated that it did not consider certain statutorily mandated factors in making its legal custody determination. Instead, it stated that it would consider the 10(2) factors “if it elects to do so.” Furthermore, because at least one of the three factors Father identifies, i.e., each parent’s “past conduct and demonstrated moral character,” id. § 30-3-10(2)(d), carries some weight in the legal custody determination,[12] we cannot say that the court’s failure to consider all the section 10(2) factors was harmless.

¶42 We therefore vacate the trial court’s legal custody determination and remand the case for consideration of all section 10(2) factors, and for such adjustment in the court’s legal custody determination, if any, as may then become appropriate. See Twitchell v. Twitchell, 2022 UT App 49, ¶ 25, 509 P.3d 806.

C.        Comparative Findings

¶43 A best-interest determination is “based on a number of factors that compare the parenting skills, character, and abilities of both parents in light of a realistic and objective appraisal of the needs of a child.” Woodward v. LaFranca, 2013 UT App 147, ¶ 22, 305 P.3d 181 (quotation simplified), cert. denied, 312 P.3d 619 (Utah 2013), abrogated on other grounds by Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422. See Twitchell, 2022 UT App 49, ¶ 23 n.4 (noting that a trial court’s findings should compare both parents’ “relative character, skills, and abilities” and not just that of one parent in particular). In other words, the court is required to undertake a comparative analysis whereby the court must consider the evidence relating to each parent.[13]

¶44 Father argues that the court’s comparative analysis and subsequent findings on a number of factors addressed only him and did not adequately compare the evidence as it related to Mother. Specifically, Father asserts that the court failed to make findings relating to Mother’s emotional stability, Child’s bond with her, her maturity and willingness to protect Child from parental conflict, and her ability to cooperate with Father. See Utah Code Ann. § 30-3-10(2)(e), (q) (LexisNexis Supp. 2023); id. § 30-3-10.2(2)(g), (h) (2019). Although Father acknowledges that the court made certain findings relating to these factors, he contends that the findings did not account for specific pieces of evidence he identifies on appeal.[14] But the trial court is not required to recite all evidence presented at trial in its findings of fact; just the evidence that is key to its custody decision. See Twitchell, 2022 UT App 49, ¶ 21 (highlighting that “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” and instead must present sufficiently detailed findings and “include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached”) (quotation simplified).

¶45      We address each of the factors Father challenges on appeal and ultimately reject his suggestion that a court’s comparative analysis must proceed in a point-by-point, side-by-side comparison of each piece of evidence presented at trial in the context of each custody factor. Overall, the court’s comparative analysis in this case was sufficient.

¶46 Emotional Stability. Father contends that the court included specific findings regarding his emotional stability but did not include similar findings related to Mother despite evidence he presented at trial reflecting negatively on her in that respect. But Father misinterprets the trial court’s charge. The court is required to make only sufficient findings to support its decision. And the trial court is in the best position to weigh the evidence.

¶47      The court found that each parent had shown “the capacity and willingness to function as a parent” but that they both demonstrated an “inability to co-parent and properly interact with the other parent” and that they had “shown [a] limited ability to communicate effectively about [Child] over the years.” The court also found Third Expert to be credible and made findings consistent with his opinion that Father had improved his character traits since the parties’ separation. But despite Father’s improvement, the court also found that Father “says things to [Child] which weigh negatively on her emotions in a manipulative and passive aggressive manner.” Comparatively, the court found that “Mother occasionally expresses her displeasure of Father’s behavior openly in front of [Child] either by word or by her actions.” Based on its charge to make sufficient findings necessary to support its decision, the trial court’s findings are sufficiently comparative as concerns the parties’ emotional stability, particularly as concerns the issue of legal custody.

¶48 Child’s Bond with Parent. Father argues that the court specifically found that Child “has a strong bond with” and “enjoys spending time with” him but made no comparative findings regarding Mother’s bond with Child. He further asserts that the court did not consider evidence he presented that Mother and Child have a weak bond. But the court’s findings demonstrate that the court at least implicitly considered the strong bond between Child and Mother. The court found that “Mother has been the primary caregiver of [Child] from the time she was born, both during the marriage and after separation” and that although Father seemed uninterested in Child during the marriage, since the separation Father’s bond with Child had improved through his beginning to care for her during his parent-time. With the court’s recognition that Child’s bond with Father had improved and became “strong” as he began to show interest in and to care for Child, which Mother has done from the very beginning of Child’s life, the court sufficiently compared Child’s bonds with each parent.

¶49 Maturity and Willingness to Protect Child. Father next contends that the court made findings relating to his maturity and willingness to protect Child from parental conflict but did not make such findings relating to Mother. We disagree. The court specifically found that each parent showed an “inability to co-parent and properly interact with the other parent,” resulting in difficulty surrounding parenting decisions and custody handoffs. The court also found that Mother “occasionally expresses her displeasure of Father’s behavior openly in front of [Child] either by word or by her actions.” Similarly, the court found that Father displayed “inappropriate interactions with [Child] and Mother during pickup and drop off,” demonstrated an “insistence on addressing speculative and false allegations of abuse at the expense of [Child’s] emotional well-being,” did not encourage Child to look forward to being with Mother, and “is either unaware of the emotional upset his behavior causes [Child] or he is aware but prefers to upset her.” Thus, because the court addressed both parents’ interactions on custody handoffs and the like, the court’s findings are sufficiently comparative as to the parties’ maturity and willingness to protect Child from parental conflict.

¶50      Ability to Cooperate. Lastly, Father challenges the court’s findings regarding his inability to cooperate with Mother. He does not assert that the court did not make comparative findings regarding Mother’s ability to cooperate with him. Instead, Father’s argument is limited to asserting that the court’s findings on this point did not reflect evidence he presented at trial regarding his cooperation with Mother and her lack of cooperation with him. But, as discussed above, the trial court is not required or expected to make a finding on every bit of evidence presented. The litigation in this matter comprised numerous motion hearings and a ten-day trial with multiple witnesses, resulting in an appellate record in excess of 6,000 pages. The court made thirty-three pages of specific findings and those findings sufficiently show how the court arrived at its decision.

¶51 For these reasons, while the court did not undertake granular comparisons of each piece of evidence deemed problematic by Father, the court did adequately consider Child’s best interest by making appropriate comparisons. From the court’s extensive findings, it appears that the court made the difficult decision concerning the best interest of Child, who obviously has two very loving parents. See Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996) (“A trial court need not find one parent inadequate before awarding custody to the other.”).

¶52      In conclusion, because the court abused its discretion in not considering every factor it was statutorily required to, we remand this matter with instructions that the court reconsider its joint legal custody award in light of all the factors listed in section 10(2) and section 10.2(2), and in particular each parent’s “past conduct and demonstrated moral character,” Utah Code Ann. § 30-3-10(2)(d), as explained in Part I.B.

II. Emotional Abuse

¶53      Father argues that the court’s finding of his “substantial emotional abuse of [Child] through false allegations” was against the clear weight of the evidence. He primarily asserts that the court did not address the evidence of Child’s repeated injuries (cuts, bruises, and welts) that prompted him to alert authorities, and that “Mother presented little to no evidence that Child was [harmed], or even affected by the reports.”

¶54      As discussed above, under section 30-3-10.2(2) of the Utah Code, the court must address all the factors included in section 30-3-10(2) and make comparative findings for those factors. This includes consideration of “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent.” Utah Code Ann. § 30-3-10(2)(a) (LexisNexis Supp. 2023). Here, the trial court expressed concern about “Father’s use of emotional and sometimes indirect physical abuse of [Child] by claiming [Mother] has harmed [Child] without sufficient justification” that “exposed [Child] to unnecessary emotional trauma and invasive physical examinations.” The court then provided three pages of findings concerning this factor, including a list of some, but not all, of the reports of physical abuse Father made to the authorities about Mother and their outcomes.[15] But because neither party presented expert testimony at trial to establish or rebut whether Father’s many reports amounted to emotional abuse in a diagnostic sense, the court’s reference to emotional abuse is properly understood as usage in a more colloquial sense with a rather limited purpose.

¶55 The court limited its findings relating to emotional abuse to its legal custody award. Although emotional abuse resulting in harm to Child would absolutely play a significant role in a physical custody determination, the court made no mention of it when it awarded the parties joint physical custody of Child. Instead, the court concluded that it was in Child’s best interest that “Father be actively involved in her life” and “have frequent and consistent time with” her.

¶56 And in addressing legal custody, the court discussed its emotional abuse findings in the limited context of discussing the issue of Mother and Father being unable “to set aside their personal differences and focus on the needs of” Child, which formed the basis for the court’s determination that the presumption in favor of joint legal custody had been rebutted. The court awarded Mother sole legal custody because she was better able to set aside her differences, while “Father is not able to set aside his differences with Mother to give first priority to the welfare of [Child] and reach shared decisions in [Child’s] best interests.” Father’s “subjecting [Child] to repeated interviews and physical examinations when he repeatedly raises allegations of abuse against Mother without sufficient cause” was one such example of this.

¶57 Also notable is that the trial court applied the statutory presumption in favor of joint custody in its analysis (holding that it had been rebutted) when such a presumption does not apply in cases involving emotional abuse. See id. § 30-3-10(3)(a) (stating that the presumption in favor of joint legal custody does not apply in cases involving, among other things, “emotional abuse”). This further illustrates the very limited purpose for which the court applied its findings on “emotional abuse,” focusing on how it reflected that Father’s hostility toward Mother was paramount even if it entailed exposing Child to repeated interviews and physical exams—and not on any harm Child actually suffered as a result.

¶58 With this limited view in mind, we conclude that the court’s findings were sufficiently supported by the evidence. Even in light of all the evidence Father presented at trial supporting the various cuts, bumps, and bruises that prompted him to alert authorities, the court’s finding that his “reports of abuse were vexatious and were calculated and designed to harm Mother” is supported by the sheer number of reports Father made that never resulted in criminal charges being filed against Mother or in DCFS taking enforcement action against her. Several different agencies all investigated Mother and each investigation produced the same result. Although, as Father points out, they could not conclusively rule out the possibility that Mother abused Child, the many investigations did not produce sufficient evidence of abuse to cause intervention by the authorities. After multiple reports of such injuries to various authorities and medical professionals did not produce the desired intervention, it was not unreasonable for the court to find that Father’s primary motivation in continuing to file such reports was his desire to harm Mother.[16]

¶59 For these reasons, and given the limited role the court’s findings related to “emotional abuse” served in the legal custody analysis, we do not disturb those findings.

III. First Expert’s Testimony

¶60      Father argues that the trial court abused its discretion in not excluding First Expert’s testimony as unreliable under rule 702 of the Utah Rules of Evidence. In support of this argument, he points to the court’s ultimate agreement with Second Expert’s testimony that, among other things, First Expert’s “opinions based on testing should not be considered” and that First Expert “did not utilize many of the standard tests and methods for determining parenting capacity and therefore his opinions on parenting capacity are not helpful.” But even assuming, without deciding, that the court’s decision to allow First Expert to testify amounted to an abuse of discretion, such error was harmless here.

¶61      “Not every trial error requires reversal.” State v. Leech, 2020 UT App 116, ¶ 42, 473 P.3d 218 (quotation simplified), cert. denied, 481 P.3d 1039 (Utah 2021). “Unless an appellant demonstrates that an error is prejudicial, it will be deemed harmless and no appellate relief is available.” Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 (quotation simplified). “An error is harmless and does not require reversal if it is sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings.” State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (quotation simplified).

¶62 Here, after agreeing with several of Second Expert’s concerns and critiques of First Expert’s rule 35 evaluation of Father, the court stated that it ultimately “found little value in much of his diagnostic expert opinion” and that it agreed with only some of his “conclusions regarding characteristics and personality traits” of Father. But even here, the court stated that First Expert’s opinions with which it agreed “are consistent with other evidence presented to the Court regarding Father’s historical demonstration of” certain negative personality traits, specifically records submitted into evidence and other trial testimony. Thus, First Expert’s testimony did not serve as the sole basis for the court’s findings regarding some of Father’s characteristics and personality traits. Indeed, the court seemed to emphasize that its agreement with First Expert in that regard was based on the corroboration furnished by the court’s own review of some of the records First Expert examined and on other trial testimony.

¶63 For these reasons, Father has not demonstrated a reasonable likelihood that First Expert’s testimony affected the outcome of the trial, and this argument therefore fails.

IV. Mother’s Imputed Income

¶64 Father contends that the court abused its discretion by imputing Mother’s income at only the federal minimum wage, when a higher income was in order given the evidence before the court. Because the trial court misapplied the controlling legal standard, we agree.

¶65      “Because income imputation itself is primarily focused on a spouse’s ability to produce income, it is not unusual for courts to impute income to a spouse who has not worked during the marriage (or who has not worked for a number of years preceding the divorce) but who is nevertheless capable of producing income.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 26, 461 P.3d 1134 (quotation simplified). “The purpose of such imputation is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.” Connell v. Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified).

¶66 Section 78B-12-203 of the Utah Code establishes the guidelines by which income may be imputed. It provides that in contested cases, a trial court may not impute income to a party without first holding a hearing on the matter and entering “findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis 2022). The statute further provides that the court’s imputation of income “shall” be based on the following ten factors, “to the extent known”: “(i) employment opportunities; (ii) work history; (iii) occupation qualifications; (iv) educational attainment; (v) literacy; (vi) age; (vii) health; (viii) criminal record; (ix) other employment barriers and background factors; and (x) prevailing earnings and job availability for persons of similar backgrounds in the community.”[17] Id. § 78B-12-203(8)(b).

¶67 Here, the trial court deemed Mother voluntarily underemployed and found that she “has experience and skills in the workforce that would enable her to find employment in marketing and public relations work.” The court further found that “[i]f Mother were able to find employment as either a PR Specialist or in Advertising Sales her likely income would start around $2,500 to $2,800” per month. But the court opined that to become employed full-time, “Mother would necessarily incur childcare costs for a six (6) year old with transportation to and from school and would need to terminate or significantly modify her current study program” and that the evidence presented at trial “does not provide a calculation of the costs of day care expense necessary for Mother to become full time employed.” The court further stated that “the evidence provided is insufficient for the Court to determine that there is current employment available in either of her experience categories, or what the current rate of pay would be,” presumably given the impact of the COVID-19 pandemic. Based on those considerations, the court imputed to Mother “the federal minimum wage of $1,257 per month.”

¶68      The court’s reasons for reducing Mother’s imputed income from between $2,500 and $2,800 per month to the federal minimum wage go against the legal standard set forth in section 78B-12-203. As an initial matter, the reasoning that Mother would need to make adjustments to her schooling in order to pursue full-time employment has no legal basis. “[T]he pursuit of a higher education simply does not preclude employment.” Mancil v. Smith, 2000 UT App 378, ¶ 17, 18 P.3d 509. Although section 78B-12-203 provides that a trial court may not impute an income to a parent who “is engaged in career or occupational training to establish basic job skills” when such training “is not of a temporary nature,” Utah Code Ann. § 78B-12-203(8)(d)(iii), this is not the case here. Mother already had a bachelor’s degree and was pursuing a graduate program. Moreover, the court already found that she possessed skills and experience in the field of marketing and public relations. See Fish v. Fish, 2010 UT App 292, ¶ 18, 242 P.3d 787 (“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.”) (quotation simplified). Thus, the court incorrectly based its reduction in Mother’s imputed income on her pursuit of higher education.

¶69 As for daycare expenses, at age six, Child would begin school soon, thus drastically reducing childcare costs as well. In any event, Utah law provides that “[t]he child support order shall require that each parent share equally the reasonable work-related child care expenses of the parents.” See Utah Code Ann. § 78B-12-214(1) (LexisNexis 2022). Accordingly, the child support order—and not Mother’s imputed income—was the appropriate means by which to address childcare costs.

¶70      Lastly, section 78B-12-203(8) mandates that the trial court base its imputation of income on “employment potential and probable earnings” by evaluating the ten enumerated factors, “to the extent known.” Id. § 78B-12-203(8)(b) (emphasis added). The statute thus expressly provides for possible uncertainty regarding the factors. Here, the vocational expert, whom the trial court found to be “qualified and credible,” provided a projection of future job openings in the field and stated that the unemployment rate in the area had doubled from the previous year due to the COVID-19 pandemic. Insofar as the court felt that additional information regarding current employment opportunities in the area was necessary, the uncertainty regarding this factor did not support a reduction of the already determined likely beginning wage of between $2,500 and $2,800 per month to the federal minimum wage. To be sure, the trial court has discretion when weighing the statutory factors, but because the statute expressly allows for uncertainty regarding the factors, that uncertainty cannot rationalize the court’s somewhat speculative decision.

¶71      For these reasons, the trial court abused its discretion by applying the wrong legal standard when imputing Mother’s income. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. We therefore reverse the trial court’s imputation of federal minimum wage income to Mother and remand for recalculation of her imputed income consistent with this opinion.

V. Attorney Fees and Costs

¶72      Finally, Father contends that in awarding attorney fees and costs to Mother, the trial court misapplied Utah law by incorrectly applying the “substantially prevailed” standard and by basing its decision, in part, on Father’s greater ability to pay. We agree.

¶73      A trial court may award attorney fees in a divorce action pursuant to section 30-3-3 of the Utah Code. “Both the decision to award attorney fees and the amount of such fees are within the district court’s sound discretion.” Lobenduhn v. Lobenduhn, 2023 UT App 137, ¶ 44, 540 P.3d 727 (quotation simplified). But the court must still “make detailed findings of fact supporting its determination.” Connell v. Connell, 2010 UT App 139, ¶ 27, 233 P.3d 836.

¶74      Section 30-3-3 “creates two classes of attorney fees—those incurred in establishing court orders and those incurred in enforcing court orders.” Id. ¶ 28 (emphasis in original). Subsection (1) provides,

In any action . . . to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action. The order may include provision for costs of the action.

Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2023) (emphasis added). “[T]he party to be awarded attorney fees under this [subsection] has the burden to prove (1) that the payee spouse has a financial need, (2) that the payor spouse has the ability to pay, and (3) that the fees requested are reasonable.” Lobendahn, 2023 UT App 137, ¶ 44.

¶75      Subsection (2) provides,

In any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may award costs and attorney fees upon determining that the party substantially prevailed upon the claim or defense. The court, in its discretion, may award no fees or limited fees against a party if the court finds the party is impecunious or enters in the record the reason for not awarding fees.

Utah Code Ann. § 30-3-3(2) (emphasis added). In contrast to subsection (1), when “awarding fees under subsection (2), the court may disregard the financial need of the moving party” using the “substantially prevailed” standard as “the guiding factor.” Connell, 2010 UT App 139, ¶ 28 (quotation simplified).

¶76 The differing standards of the two subsections are attributed to the different purposes each subsection serves. See id. ¶ 29. “Attorney fees are granted under subsection (1) to enable a party to prosecute or defend the action.” Id. (quotation simplified). Otherwise, “a spouse lacking a separate income would be unable to meaningfully participate in divorce proceedings.” Id. “Consequently, the moving spouse’s need is a sine qua non of a subsection (1) award.” Id. Conversely, “fee awards under subsection (2) serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Id. ¶ 30.

¶77      Here, in addressing the question of attorney fees and costs, the trial court prefaced its findings with the observation that the litigation in this matter “was contentious and relied on a significant amount of documents, which caused a significant amount of fees to be incurred by the parties.” The court first denied Father’s request for attorney fees “as a sanction for [Mother’s] unreasonableness in requiring these proceedings to go to trial,” ruling that “[a]ttorney’s fees as sanctions are not applied because a party has been unreasonable in requiring disputes to go to trial.” The court then turned to Mother’s competing request premised on her “having ‘substantially prevailed.’” The court stated that Mother “did substantially prevail, not only at trial, but at interim hearings on motions prior to trial.”

¶78 Following this preface, the court entered findings regarding the parties’ need and ability to pay. The court found that Mother “has limited income, if any, at this time,” and it noted Father’s annual salary. The court then proceeded to make findings on the parties’ expenses and disposable income, prefacing its findings by stating that it “has limited information regarding each party’s monthly expenses.” The court found that Father has “approximately $44,500 in disposable funds annually.” Turning to Mother next, the court first noted that neither party provided any evidence of her expenses, leaving the court “with no basis to find Mother has any expenses beyond those which are covered by her need for child support.”[18] The court thus found that Mother “has no income and no evidence of expenses.” The court also noted that “it received no evidence that Mother can pay for her costs and attorney fees.” Based on this, the court found that “[a]s between Father and Mother, Father has the greater ability to pay attorney’s fees” and held that “Mother should be awarded her reasonable costs and attorney fees.”

¶79      The court then addressed the reasonableness of Mother’s attorney fees. It again prefaced its findings by stating that “[a]lthough the issues of custody, parent time, and child support are routinely dealt with in our courts, this case is not a ‘usual’ case” because “[t]he parties have been unusually accusatory, intransigent, and uncooperative which has significantly raised the costs of this litigation to both parties.” The court noted that “Father’s decisions caused Mother to successfully bring multiple orders to show cause, motions to compel, and statements of discovery issues,” and have “forced Mother to incur otherwise unnecessary legal costs.” Against this backdrop, the court found that not all Mother’s requested costs and fees, totaling almost $410,000, were “reasonable and necessary,” and it ultimately awarded her $161,066.94 in attorney fees and costs. The court largely based this reduction on Mother’s “duplication of legal services, unnecessary review and consultation between multiple attorneys, and inefficiencies in presenting evidence at trial,” which the court deemed to be unreasonable.

¶80      There are two problems with the trial court’s award. First, the court conflated the two distinct bases for awarding fees under section 30-3-3, resulting in an undifferentiated attorney fees award. See Connell, 2010 UT App 139, ¶ 31. The court began its analysis by stating that Mother “substantially prevail[ed], not only at trial, but at interim hearings on motions prior to trial.”[19] This statement in and of itself is concerning as the purpose of the ten-day bench trial was largely “to establish an order of custody, parent-time, [and] child support,” thereby implicating subsection (1). See Utah Code Ann. § 30-3-3(1). But subsection (1) does not apply a “substantially prevailed” standard. See Lobendahn, 2023 UT App 137, ¶ 44; Connell, 2010 UT App 139, ¶ 29.

¶81      Although some pre-trial motions dealt with enforcing the court’s temporary orders regarding “custody, parent-time, child support, alimony, or division of property,” thereby falling under the ambit of subsection (2), see Utah Code Ann. § 30-3-3(2), the court did not distinguish between the two distinct statutory bases for awarding attorney fees. Rather, the court took the total amount of attorney fees Mother sought and reduced the amount to the sum it considered reasonable based on multiple inefficiencies on Mother’s part.

¶82 The second problem is that in awarding attorney fees under subsection (1), the court did not expressly find that Father “has the ability to pay” the requested attorney fees. Lobendahn, 2023 UT App 137, ¶ 44. Instead, the court found that between the two, “Father has the greater ability to pay attorney’s fees.” Whether Father is in a better position than Mother to pay attorney fees and whether Father has an actual ability to pay both his and Mother’s attorney fees are two different inquiries. Although the answer to both questions may, on remand, end up being the same, the court nonetheless did not make the required finding when awarding Mother attorney fees. See Connell, 2010 UT App 139, ¶ 27 (stating that as part of its attorney fees award, the court “must make detailed findings of fact supporting its determination”).

¶83      In sum, we reverse the trial court’s award of attorney fees and costs and remand with instructions that the court distinguish the fees that fall under subsection (1) and subsection (2) of section 30-3-3, and that it apply the corresponding legal standard to each group of fees. In the course of this effort, the court also needs to make a specific finding regarding Father’s ability to pay Mother’s attorney fees as to any fees awarded under subsection (1).

CONCLUSION

¶84      There remain issues that require additional attention and must be revisited on remand. Although we affirm certain of the trial court’s findings of fact and evidentiary rulings relating to its award of sole legal custody of Child to Mother, we reverse and remand with instructions that the court reevaluate its legal custody award by considering all the statutorily mandated custody factors, in particular the one focused on past conduct and moral character. We likewise reverse and remand for further consideration of Mother’s imputed income and the award of attorney fees and costs in Mother’s favor.[20]

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


[1] “On appeal from a bench trial, we view the evidence in a light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard.” Chesley v. Chesley, 2017 UT App 127, ¶ 2 n.2, 402 P.3d 65 (quotation simplified).

[2] As relevant here, rule 35(a) of the Utah Rules of Civil Procedure states, When the mental or physical condition or attribute of a party or of a person in the custody or control of a party is in controversy, the court may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or control. The order may be made only on motion for good cause shown.

[3] Mother also underwent a rule 35 examination, but it does not appear that those results were admitted into evidence at trial.

[4] The trial court initially found First Expert “to be credible although not entirely unbiased.” But following Father’s post-trial motion, the court did not include that statement in the amended findings of fact and conclusions of law that it later issued.

[5] Specifically, the court rejected First Expert’s opinion that Father “is prone to bouts of depression”; that he “appears to have a disconnect between his emotions and his cognitive abilities, which impedes his ability to utilize constructive feedback and an inability to learn from his experience and mistakes”; and that “[i]t is likely that Father has not emotionally separated, or moved on from his relationship with Mother.”

[6] A vocational expert, whom the court found to be “qualified and credible,” opined at trial that Mother could earn “approximately $2,800 to $3,750 gross per month” as a public relations specialist. But the court stated that the expert’s calculations did not take the COVID-19 pandemic’s impact on the job market into consideration, and although the expert provided a projection of future job openings in the field, he did not identify any current job openings or pay rates.

[7] We recount the relevant details of the trial court’s attorney fees award in Part V.

[8] Father does not challenge the trial court’s physical custody award on appeal.

[9] Father also contends that the trial court erred in ordering him to sign medical releases for his mental health records without first undertaking the analysis set forth in Debry v. Goates, 2000 UT App 58, 999 P.2d 582, cert. denied, 9 P.3d 170 (Utah 2000). See id. ¶ 26. But because Father did not raise this issue below, and instead opposed the release of the records only on prejudice and scope-of-the-stipulation grounds, this argument is not preserved, and we do not address it further.

[10] The presumption in favor of joint legal custody does not apply in cases that include, among other things, “emotional abuse.” Utah Code Ann. § 30-3-10(3)(a) (LexisNexis Supp. 2023). Although the trial court in this case did make several findings regarding emotional abuse, the court nonetheless applied the presumption but found that it was rebutted by the parties’ inability “to set aside their personal differences and focus on the needs of” Child.

[11] Father also argues that the trial court made unsupported findings concerning Mother’s financial stability, Father’s involvement in Child’s life, and the parties’ communications. But because Father has not marshaled the evidence in support of these findings, he has not carried his burden of persuasion. See Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A party will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal the evidence sufficient to overcome the healthy dose of deference owed to factual findings.”) (quotation simplified).

[12] The other two factors, the “ability to provide personal care rather than surrogate care” and the “previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community,” Utah Code Ann. § 30-3-10(2)(c)(iii), (n) (LexisNexis Supp. 2023), are more germane to a physical custody rather than to a legal custody determination, and Father conceded as much during oral argument before this court.

[13] The case of Allen v. Allen, 2014 UT App 27, 319 P.3d 770, provides a good example of how appropriate comparison between the parents works in practice. After considering the applicable factors and concluding that “both parents appeared nearly equally capable of caring for” their child, the district court in that case determined that, with respect to two factors where the parents were not equally strong, “the stability offered by [the father] outweighed the apparent empathy of [the mother].” Id. ¶ 5 (quotation simplified). See id. ¶ 12 (holding that given the district court’s observation that the parties were “nearly equally capable of caring for” the child and its findings of fact supporting that determination, the court had adequately considered the “character and quality of [the child’s] bonds with both parents”). The deciding factors in the district court’s view were the father’s stability and the mother’s immaturity, “with a tendency to put her needs above those of others, including” the child. Id. ¶ 10. On appeal, this court concluded that the district court’s “discussion of the parties’ relative maturity, stability, and ability to care for [the child] constitutes adequate consideration of both parties’ ‘past conduct and demonstrated moral standards.’” Id. ¶ 11 (quoting Utah Code Ann. § 30-3-10(2)(d) (LexisNexis 2013)).

[14] On this point, Father contends that our decision in Twitchell v. Twitchell, 2022 UT App 49, 509 P.3d 806, requires a trial court to make a finding on all evidence presented by either party. Father misinterprets that decision. In Twitchell, we determined that “to ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (quotation simplified). The premise of Twitchell is not that a court must make a specific finding regarding each piece of evidence, but simply that a court must make findings on the “basic facts” that support its ultimate conclusion.

[15] The trial court acknowledged that its list was not a comprehensive one. Mother asserts that she presented evidence at trial that Father instigated a total of 28 investigations against her.

[16] In any event, although Father argues that the trial court’s findings are against the clear weight of the evidence given the evidence of Child’s various injuries presented at trial, he has not marshaled the evidence supporting the court’s findings. To successfully challenge a finding, it is not enough to focus only on “evidence that points to an alternate finding or a finding contrary to the trial court’s finding of fact.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890 (quotation simplified). Accordingly, Father has also not carried his burden of persuasion on appeal. See Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A party will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal the evidence sufficient to overcome the healthy dose of deference owed to factual findings.”) (quotation simplified).

[17] The statute further provides that in cases where “a parent has no recent work history,” a court may impute “an income at the federal minimum wage for a 40-hour work week,” and that “[t]o impute a greater or lesser income, the judge in a judicial proceeding . . . shall enter specific findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(c) (LexisNexis 2022). Although Mother was not working at the time of trial, this did not form the basis for the trial court’s decision to impute the federal minimum wage to her. Rather, it found that she had the potential of earning between $2,500 and $2,800 per month but reduced this amount based on other factors as explained in paragraph 67.

[18] Father argues that Mother bore the burden of establishing her expenses and that the court incorrectly faulted him for not providing evidence of her expenses. But the inability to establish Mother’s expenses only benefitted Father—admittedly to a very limited degree—as the court ultimately did not attribute any expenses to Mother apart from those that are covered by her need for child support in its calculation of disposable funds available to her.

[19] The court awarded some attorney fees to Mother for her success in pre-trial motions along the way. The court also reserved for later determination the issue of attorney fees on certain other pre-trial motions.

[20] Father recently asked that we take judicial notice of developments in legal proceedings involving other parties that he believes are germane to this case. Mother opposes Father’s motion. We are not persuaded that the matters we are asked to take notice of bear on the issues presented in this appeal and so deny the motion. If relevant to the issues the trial court will address on remand, Father may renew his request in that forum.

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2024 UT App 52 – In re A.S. – child neglect, photographing genitals

2024 UT App 52 – In re A.S.

 

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.S. AND J.S.,

PERSONS UNDER EIGHTEEN YEARS OF AGE. V.S., Appellant, v. STATE OF UTAH, Appellee.

Opinion No. 20230338-CA Filed April 11, 2024 Third District Juvenile Court, Summit Department

The Honorable Elizabeth M. Knight No. 1214949

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1        On the basis of a set of stipulated facts, the juvenile court adjudicated A.S. and J.S. as being neglected as to V.S. (Mother). Mother now challenges that adjudication on appeal, arguing that the stipulated facts did not support the neglect adjudication. For the reasons set forth below, we affirm.

BACKGROUND
Initial Proceedings

¶2        This is a child welfare case concerning two children: A.S., who was 16 years old at the time of this appeal, and J.S., who was 9 years old. A.S. and J.S. (collectively, the Children) are the biological children of Mother and J.S. (Father).[1] Mother and Father divorced in March 2018, and they’ve had an “ongoing” and “contentious” custody dispute in district court ever since.

¶3        In August 2022, the Department of Child and Family Services (DCFS) filed a petition for protective supervision services, alleging that the Children were “abused, neglected, or dependent children” pursuant to Utah Code section 80-1-102. The petition alleged a range of conduct to support this—most of it by Mother, though with one allegation relating to Father. This appeal is brought by Mother, so we’ll focus on the allegations, proceedings, and rulings relating to her.[2]

¶4        On March 10, 2023, DCFS filed an amended petition relating to Mother, and the amended petition realleged some (but not all) of the allegations from the original petition. Based on the amended set of allegations, DCFS again alleged that the Children were abused, neglected, or dependent. That same day, the juvenile court held a “merged pretrial and adjudication hearing” relating to Mother, and Mother was represented by counsel at that hearing. Mother acknowledged under oath that she understood that she had a right to a trial, that DCFS bore the burden of proving the allegations against her by clear and convincing evidence, and that she had the right to present evidence in her defense. Mother then waived her right to a trial, affirmatively admitted to a specified list of the allegations from the amended petition, and, pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, “neither admitted nor denied” certain other specified allegations from the amended petition.

¶5        On the basis of Mother’s affirmative admissions and the allegations deemed to be true by virtue of her rule 34(e) response, the juvenile court later issued a ruling that found a list of facts to be “true by clear and convincing evidence.” We now recount those facts here, with any quotations being drawn directly from the court’s precise verbiage.[3]

The Stipulated Facts

¶6        Since filing for divorce, Mother has sought four protective orders against Father: one in 2016, one in 2020, and two in 2022. Also, Child Protective Services (CPS) has received twelve reports accusing Father of neglect, physical abuse, sexual abuse, domestic violence-related child abuse, and other miscellaneous complaints which were not child welfare related. “All but one of these reports were either unaccepted because they did not meet CPS minimum requirements for investigation or unsupported because there was inadequate evidence to support the allegation after the matter was investigated.” Only two of the twelve reports affirmatively identified Mother as the person who made the report, and though a touch unclear, a third suggested that she was likely the reporter.

¶7        Sometime in 2020, certain pictures were taken of J.S. at Wasatch Pediatrics. These pictures showed “mild inflammation” of J.S.’s “inner labia,” “mild peri-anal erythema,” and a “superficial linear abrasion in the crease of [her] right thigh and perineum.” In August 2020 and again in April 2022, Mother shared medical records with DCFS that included those photographs, and she did so in both instances “as part of an abuse investigation.” In April 2022, Mother “forwarded all communications with DCFS to the Ombudsmen’s office at [its] request,” again including these photographs.

¶8        In June 2022, Mother also “began documenting pictures of [J.S.’s] stool under the medical advice of” a gastroenterology specialist (Specialist) who was treating J.S. “for a chronic gastrointestinal issue.”

¶9        On June 28, 2022, Mother took photographs of “bruises on [J.S.’s] knee, leg, and abdomen.” One of these photographs was “taken in the bathtub when [J.S.] was naked,” but J.S.’s “genitalia were not visible in the picture,” and the other photographs taken on this occasion “were taken when [J.S.] was clothed.”

¶10      Based on Mother’s concerns about these bruises and about “additional vaginal redness,” Mother took J.S. to the Redstone Clinic on June 30, 2022. A medical professional at the clinic “took pictures of the bruises and vaginal and anal redness” and then instructed Mother to take J.S. to the Emergency Department at Primary Children’s Hospital. In an effort to avoid a further genital exam, a doctor at the hospital accessed and viewed the photographs that had been taken at the Redstone Clinic. While at the hospital, Mother also spoke to the Safe and Healthy Families Clinic over the phone. Mother was advised to call the clinic back during normal clinic hours.

¶11 The next day, a doctor (Doctor) at the Safe and Healthy Families Clinic “indicated that the pattern of bruising [was] unusual and that in the absence of a history of accidental injury, inflicted injury, or physical abuse, the bruises would be a reasonable concern,” but Doctor further opined “that sexual abuse of a child is most often recognized when a child makes a disclosure.” Doctor also said that “constipation . . . is a common manifestation of childhood stress and only rarely associated with sexual abuse.” As to the vaginal redness in question, Doctor said that it was “not an indicator of sexual contact,” “particularly with swimming and warm weather.” Doctor saw “no reason to have specific concern for sexual abuse in this case,” and Doctor did not believe that J.S.’s symptoms met “the threshold for suspected abuse or neglect.” Doctor therefore “did not make a report to either DCFS or law enforcement,” and she saw “no need for follow up in the Safe and Healthy Families Clinic based on” the information that had been provided to her.

¶12 That same day, Mother spoke with an officer from the Summit County Sheriff’s Office, again “reporting the bruises and vaginal and anal redness.” When the officer offered to come to the home and take “pictures of the bruising,” Mother declined. Instead, she sent him the pictures that she had taken of the bruising on J.S.’s knee, leg, and abdomen.

¶13 Sometime later that day, Mother called the Safe and Healthy Families Clinic. A nurse (Nurse) received a page regarding the call. Before calling Mother back, Nurse contacted DCFS and was informed “that there had been several calls over the last few years, but all of them were closed unsupported.” DCFS also informed Nurse that Mother had texted photos to DCFS and a detective. After receiving this information, Nurse called Mother. During that conversation, Mother “requested that Safe and Healthy Families conduct a forensic examination and take photographs of [J.S.’s] genitals due to a request from law enforcement.” The juvenile court’s subsequent finding recounts the following about what happened next:

According to [Nurse], the mother told her that she had taken photographs of [J.S.’s] genitals before and after she went to see her father on the advice of a pelvic floor physical therapist. [Nurse] asked the mother three times for the name of the physician that advised her to take photographs and the mother refused to provide it. [Nurse] states that the mother eventually reported that she was documenting what [J.S.’s] genitals looked like before and after parent-time with her father. The mother indicates that she felt pressured and interrogated and was unable to provide the name of [Specialist] to [Nurse]. Mother states that she had trouble communicating with [Nurse] and was unable to explain everything.

The court’s findings also note that “[n]o one has received” the “before and after” photographs described in the conversation Mother had with Nurse.

¶14      Doctor later shared her professional opinion that “she would have substantial concerns about repeated photography” of a child’s genitals. In Doctor’s view, children are “told repeatedly that these are private parts of our body,” but because children would understand that photographs are “usually show[n] to all sorts of people,” repeated photographing of genitals would undermine this messaging. Doctor also expressed her view that subjecting a child to “multiple forensic exams” would improperly “normalize[] certain amounts of touching and manipulation of the genital region.”

¶15 With respect to Mother, “[m]ultiple police reports and DCFS records indicate that [Mother] may be difficult to understand.” It is “documented” that Mother has “POTS (post orthostatic tachycardia syndrome) which causes forgetfulness and trouble focusing (brain fog) making it difficult for [Mother] to think and speak clearly under stress.”[4]

The Neglect Adjudication

¶16      Based on the stipulated facts, the juvenile court found that the Children “are neglected as to [Mother], as it is lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father], as well as sending other photographs to various agencies.” The juvenile court then ordered that “[c]ustody and guardianship shall continue with the parents with protective supervision services with DCFS,” and Mother was also ordered to “comply with the requirements of the DCFS service plan.” Mother now appeals that ruling.

ISSUES AND STANDARDS OF REVIEW

¶17 The juvenile court ruled that Mother neglected the Children by (i) taking “before and after” photographs of J.S.’s genitals, as well as (ii) “sending other photographs” to various agencies. As explained below, we need consider only the court’s conclusions relating to the “before and after” photographs. With respect to those, Mother raises two challenges: first, Mother challenges the finding that she actually took the photographs; and second, Mother argues that even if she did, this did not constitute neglect. Although Mother’s first challenge is to a factual finding, that finding was based on stipulated facts. When “the facts are stipulated, we review the conclusions drawn by the juvenile court for correctness.” In re K.T., 2023 UT App 5, ¶ 7, 524 P.3d 1003 (quotation simplified), cert. denied, 528 P.3d 327 (Utah 2023). We also review the court’s interpretation of the neglect statute for correctness. See In re M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859 (holding that the determination of “whether the statutory criteria for neglect have been met” is “primarily a law-like endeavor” that is accordingly reviewed for correctness) (quotation simplified).

ANALYSIS

¶18      The juvenile court concluded the Children are neglected as to Mother because “it is a lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father], as well as sending other photographs to various agencies.” Because we determine that the “before and after” photographs alone are enough to support the neglect adjudication, we need not consider whether Mother also neglected the Children by sending the photographs to “various agencies.”[5]

¶19      Mother makes two arguments relating to the “before and after” photographs: first, she argues that there was not clear and convincing evidence that she actually took them; and second, she argues that even if she did take the photographs, this did not constitute neglect.

I. There Was Sufficient Evidence to Support the Court’s
Conclusion that Mother Took These Photographs.

¶20 Mother first argues that there was not “clear and convincing evidence that Mother took photos of [J.S.’s] genitals before and after visits with Father.” We disagree.[6]

¶21 At an adjudication trial, the juvenile court must determine whether “the allegations contained in the abuse, neglect, or dependency petition are true” by “clear and convincing evidence.” Utah Code § 80-3-402(1). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement” of a preponderance of the evidence and “something less than proof beyond a reasonable doubt.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (quotation simplified), cert. denied, 531 P.3d 731 (Utah 2023). As noted, because the juvenile court made this finding on the basis of stipulated facts, we afford no deference to its conclusion that DCFS had satisfied the clear and convincing evidence standard. But even so, we conclude that this standard was satisfied.

¶22      The clearest indication that Mother took these photographs is the stipulated finding that Mother told Nurse that she took these photographs. The law has of course long recognized that admissions from a party can carry substantial evidentiary weight. As a result, once Mother told Nurse that she took these photographs, the court had a solid evidentiary basis for concluding that she had indeed taken them.

¶23      In a footnote of her brief, Mother nevertheless argues that the court should not have credited this admission. As an initial matter, Mother points out that “[n]o one has received” these particular photographs. And this seems to be true. But again, Mother told Nurse that she had taken them. From this, even without the actual photographs, the juvenile court could take Mother at her word and find that she had taken them.

¶24 More significantly, Mother suggests that her seeming admission was actually the product of a misunderstanding. As noted, the stipulated facts include that “Mother state[d] that she had trouble communicating with [Nurse] and was unable to explain everything.” They also include that “[m]ultiple police reports and DCFS records indicate that [Mother] may be difficult to understand,” and that it is “documented” that Mother has “POTS (post orthostatic tachycardia syndrome),” a condition that “causes forgetfulness and trouble focusing (brain fog) making it difficult for [Mother] to think and speak clearly under stress.” But even accounting for these facts, the juvenile court could still take Mother’s admissions to Nurse at face value. This is so for several reasons.

¶25      The first is the specificity of Nurse’s account. Nurse didn’t say that Mother had made a passing or unclear comment to this effect. Rather, Nurse recalled Mother telling her that “she had taken photographs of [J.S.’s] genitals before and after she went to see [Father] on the advice of a pelvic floor physical therapist.” On its own, the specificity of Nurse’s account belies the suggestion that Nurse had simply misunderstood Mother.

¶26 Second, Mother seems to have reiterated her initial admission as the conversation with Nurse continued. According to Nurse, after Mother made her initial comment about taking these photographs, Nurse “asked [Mother] three times for the name of the physician” who had recommended taking them, but Mother “refused to provide it.” If Mother had not meant to say that she was taking “before and after” photographs of J.S.’s genitals (or, instead, if she hadn’t said it at all and Nurse had misheard her), Nurse’s repeated questioning about which doctor had asked for the photographs would have given Mother the opportunity to clarify that she had misspoken (or that she had been misunderstood) and that she hadn’t actually taken these photographs. But this wasn’t Mother’s response.

¶27      Instead, Nurse claimed that as the conversation continued, Mother “eventually reported that she was documenting what [J.S.’s] genitals looked like before and after parent-time with [Father].” Nurse’s statement that Mother “eventually” told Nurse that she was “documenting” the condition of her daughter’s genitals indicates that Mother reiterated that she had indeed taken them. And the fact that Mother then added the detail that she was “documenting” the “before and after” look of her daughter’s genitals functioned as her explanation for why she thought this was appropriate to do.

¶28      Finally, there’s no place in either the court’s ruling or even in the record as a whole where Mother has ever denied taking these photographs. Even when confronted with a specific allegation from DCFS about an instance in which a witness said that Mother admitted to taking them, Mother chose to respond with a non-admission/non-denial pursuant to rule 34(e).

¶29 Thus, the evidence before the juvenile court was that Mother had told Nurse that she had taken these photographs, that even with the benefits of further conversation and even subsequent litigation, Mother never retracted that admission, and that Mother had instead chosen to justify taking them. In light of all this, we see no basis for overturning the court’s implicit finding that Mother personally took these photographs.

II. The “Before and After” Photographs Were Enough to Establish Neglect.

¶30      “Neglect is statutorily defined,” and it “can be proved in any one of several ways.” In re G.H., 2023 UT App 132, ¶ 28, 540 P.3d 631; see also Utah Code § 80-1-102(58)(a). The juvenile court here concluded that Mother’s actions constituted neglect because “it is a lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father].” This was an apparent reference to Utah Code section 80-1-102(58)(a)(ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent.”

¶31      In her brief, Mother points out that the legislature has not further defined the phrase “lack of proper parental care.” Drawing on various textual, structural, and even constitutional sources, Mother now asks us to take the opportunity to fill in the gap and provide further definition of what this phrase means. While we need not create a definitive one-size-fits all definition, we do agree with Mother on a few broad points that inform our analysis below.

¶32      First, the word “proper” is commonly understood to refer to something that is “marked by suitability, rightness, or appropriateness.”[7] Second and similarly, we think the phrase “proper parental care” would naturally incorporate notions of reasonableness. (After all, conduct that’s appropriate would likely be reasonable, and the converse would also be true.) In this vein, we note that Black’s Law Dictionary links the term “proper care” to notions of “reasonable care” that are commonly used in negligence cases, and Black’s defines “reasonable care” as “the degree of care that a prudent and competent person engaged in the same line of business or endeavor would exercise under similar circumstances.” Care, Black’s Law Dictionary (11th ed. 2019). Third, because the statutory phrase at issue turns on notions of “proper parental care,” the relevant inquiry is appropriately focused on what would be proper (with all that the word entails) “under similar circumstances”—meaning, in the particular parenting circumstance at issue. And finally, we agree with Mother that, in light of the fundamental and constitutional rights that are associated with parenting, the neglect standard should not be applied to conduct that falls within an ordinary range of permissible parenting.

¶33      With those principles in mind, we think the contours of this phrase can then capably be fleshed out in the same way that most other phrases from constitutions or statutes are fleshed out— through the ordinary process of common law development. And while there doesn’t appear to be a Utah case that has comprehensively defined this phrase, the parameters of what constitutes neglect have been explored and applied in a number of cases. Among others, we note the following:

·         In In re G.H., we held that the neglect standard was satisfied where the mother “did not attend to the children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick,” where the mother “did not behave in a manner consistent with parenting a child,” and where the mother “would refuse to care for them when asked by the family members with whom she was living.” 2023 UT App 132, ¶¶ 29–31, 540 P.3d 631 (quotation simplified).

·         In In re K.K., we held that the neglect standard was satisfied based on the mother’s “inaction in failing to protect the children from exposure to domestic violence and prioritizing her toxic relationship” with the father. 2023 UT App 14, ¶ 12, 525 P.3d 526 (quotation simplified).

·         In In re K.D.N., we upheld a neglect determination that was based on “the lack of food,” the “profound lack of parenting skills,” and the presence of “violence” and “chaos” within the home. 2013 UT App 298, ¶ 11, 318 P.3d 768 (quotation simplified).

·         In In re D.T., we held that the neglect standard was satisfied based on the mother’s “admitted relapse” on illegal drugs, “her frequent absences, inconsistent housing, lack of stability, and other behaviors.” 2013 UT App 169, ¶ 5, 309 P.3d 248 (quotation simplified).

·         And in In re N.M., we held that “sufficient evidence support[ed] the juvenile court’s determination that the father “neglected [his child] by engaging in domestic violence.” 2013 UT App 151, ¶ 3, 305 P.3d 194.

In these and other cases, we held that the neglect standard was satisfied, not because of a failure of best-practices parenting, but instead because the behavior in question fell outside acceptable norms of proper parenting. To again use the phrase that we recently used in In re G.H., such cases involve a parent who simply “did not behave in a manner consistent with parenting a child.” 2023 UT App 132, ¶ 30.

¶34      So viewed, we agree with the juvenile court’s conclusion here that Mother’s behavior likewise reflected a “lack of proper parental care.” Utah Code § 80-1-102(58)(a)(ii). Again, while DCFS alleged that Mother had neglected the Children based on a number of things (including her excessive reporting of abuse, as well as her decision to submit the photographs taken by doctors to law enforcement and medical professionals), the conduct at issue in the court’s ruling was Mother taking photographs of a minor’s genitals “before and after parent-time” with Father, as well as Mother’s explanation that she was doing so to “document[] what” J.S.’s “genitals looked like before and after parent-time with” him.

¶35      The juvenile court had before it a statement from Doctor that she had “substantial concerns” about the “repeated photography” of a child’s genitals. Doctor opined that such behavior can be damaging to a child, in part, because it can undermine the messaging that children receive about the privacy relating to their genitals. Doctor’s concerns seem well-founded.

¶36 Moreover, we also note that the photographs in question here were taken by a parent who was in the midst of an “ongoing” and “contentious” custody dispute. By taking photographs of her young child’s genitals “before and after” that child’s visits with her father, Mother wasn’t just potentially desensitizing her daughter to photography of her genitals, but Mother was also communicating to her daughter that she should be concerned that Father was sexually abusing her or at least was likely to do so. This, too, carries obvious potential for harm, both to the child and to her relationship with Father.

¶37      We recognize, of course, that contextual questions such as the ones presented here can and often do turn on even small factual differences. And to be very clear, we don’t mean to suggest that a parent (even one who is involved in a contentious custody dispute) must sit idly by if the parent has a good-faith basis for suspecting that a child is being abused. As illustrated by our survey of the relevant cases above, children should always be protected, and on that front, their parents are indeed the first line of defense.

¶38 If a parent has suspicions that a child is being sexually abused, the parent should of course do something to protect the child, and as indicated, a failure to do anything may well constitute neglect in its own right. Among other things, a parent might respond by reaching out to medical, law enforcement, or other trained professionals, and such professionals may well be involved in documenting any observed abuse. But unlike some of the other photographs at issue in this case, the particular photographs in question here weren’t taken by professionals or in response to their recommendation, nor were they taken by Mother to document visible genital trauma.[8] Rather, according to the explanation that Mother “eventually” gave to Nurse during their conversation, Mother was trying to “document[] what [J.S.’s] genitals looked like before and after parent-time with her father.” It was on this basis that the juvenile court concluded that the neglect standard had been satisfied.

¶39      We have no need to determine whether it would ever be within the bounds of “proper parental care” for a parent to take photographs of a young child’s genitals without first involving trained professionals. And we note here too that, in addition to the suspected abuse scenario, there may be situations where such photography is in response to something more benign (such as diaper rash on an infant), and such contextual differences would likely place such photographs on different analytical footing. For purposes of this appeal, however, we simply conclude that it falls outside the realm of “proper parental care” for a parent to take photographs of a child’s genitals “before and after” visits with the other parent for “documentation” purposes. On this basis, we affirm the juvenile court’s conclusion that Mother neglected the Children.[9]

CONCLUSION

¶40      We agree with the juvenile court’s conclusion that, without something more, it constitutes a “lack of proper parental care,” Utah Code § 80-1-102(58)(a)(ii), for a parent to take photographs of a child’s genitals “before and after” visits with the other parent for “documentation” purposes. We affirm the adjudication of the juvenile court on that basis.

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


[1] Mother and Father also have another child who was not a minor during the proceedings in question.

[2] For background purposes only, we note that the juvenile court held a “merged pretrial, adjudication, and partial disposition hearing” relating to the one allegation made against Father. At the close of that hearing, the court concluded that the Children were “dependent children . . . in that they were without proper care through no fault of [Father].” Father was ordered to comply with protective supervision services through DCFS as a result. Father has not appealed that ruling.

[3] The parties in this case have all referred to these facts as “stipulated facts.” As indicated, however, Mother affirmatively admitted to certain facts, but for others, she invoked rule 34(e) of the Utah Rules of Juvenile Procedure and neither admitted nor denied them. Under that rule, when a party “declin[es] to admit or deny the allegations,” the “[a]llegations not specifically denied . . . shall be deemed true.” Id. Thus, in a technical sense, the facts the court relied on pursuant to rule 34(e) might not actually be “stipulated” (because Mother didn’t affirmatively agree to all of them), but by force of law, they might as well be. For ease of reference, we’ll follow the lead of the parties and refer to the court’s findings collectively as “stipulated facts.”

[4] Though the findings at issue don’t specifically draw the link, DCFS’s original petition in this case alleged that Mother has a “traumatic brain injury because a car hit her in December 2020,” and the juvenile court also included this finding in an order that it entered with respect to Father elsewhere in this litigation.

[5] The court found that Mother took photographs of J.S.’s genitals, but there’s no finding that she took similar photographs of A.S.’s genitals. Even so, the court found that both the Children are neglected. On appeal, Mother has not argued that this potential distinction provides a basis for reversing the adjudication as to A.S., and we therefore do not consider whether this is so.

[6] The juvenile court did not explicitly find that Mother personally took these photographs. Rather, in this portion of the ruling, the court stated that it is a “lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father].” “Unstated findings can be implied,” however, “if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified). Here, we conclude that the juvenile court did make an unstated finding that Mother took these photographs. As discussed in more detail below, Nurse claimed that Mother admitted to taking them. And of note, no one has claimed that anyone else took these particular photographs. Thus, when the court ruled that Mother had “subject[ed] a child to having her genitals photographed before and after visits with [Father],” the clear (and, indeed, only) implication that can be reasonably drawn from this record and the court’s ruling is that the court implicitly found that Mother took these photographs.

[7] Proper, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/proper [https://perma.cc/YGY2-MJXP].

[8] In contrast, the juvenile court noted that the photographs taken in 2020 showed “inflammation” of the labia and a small “abrasion” near the groin, while the 2022 photographs showed “vaginal and anal redness.”

[9] Mother also makes some allusion to the stipulated facts relating to certain photographs that she was taking on the advice of Specialist. It’s unclear from the briefing whether Mother means to assert this as something of an “advice of doctor” defense to this neglect allegation. See Utah Code § 80-1-102(58)(b)(ii) (stating that neglect “does not include . . . a health care decision made for a child by the child’s parent or guardian, unless the state or other party to a proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed”). In any event, those stipulated findings reflect that Specialist worked at a gastroenterology clinic, that Specialist was treating J.S. for “a chronic gastrointestinal issue,” and that Mother had been “documenting pictures of [J.S.’s] stool” in conjunction with that treatment. Mother has not specifically asserted that, in conjunction with this gastroenterology treatment, Specialist also told her to take photographs of her daughter’s genitals, much less that Specialist instructed her to “document[] what [J.S.’s] genitals looked like before and after parent-time with [Father].” We accordingly see no basis from this record to overturn the neglect finding on this potential ground.

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2024 UT App 51 – Bailey v. Bailey – evidence, sanctions

2024 UT App 51 – Bailey v. Bailey

THE UTAH COURT OF APPEALS

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

Opinion No. 20220534-CA Filed April 11, 2024

Second District Court, Farmington Department

The Honorable Michael D. DiReda No. 094701582

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

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

HARRIS, Judge:

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

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

BACKGROUND
The Petition to Modify

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

¶4        In 2019, nine years after entry of the Decree, Amy filed a petition to modify, seeking, among other things, a modification of Danny’s child support obligation. Discovery and disclosure deadlines were set, with fact discovery scheduled to close in November 2019 and expert discovery scheduled to close in March 2020. The expert discovery deadline passed, and neither party designated any expert witnesses. But in September 2020, Amy filed a statement of discovery issues, asserting that Danny had not disclosed certain financial documents, including his 2019 tax return, and asking that Danny be ordered to do so. Amy further requested that she be allowed “to designate an expert to opine on the limited issue of [Danny’s] expenses versus business expenses.” Danny objected to this request, arguing that expert discovery deadlines were “far past” and that Amy “should not be allowed to re-open expert discovery and further extend this matter.” After a hearing, the court ordered both parties to disclose their 2018 and 2019 tax returns and associated financial documents to the other, but the court agreed with Danny on the expert disclosure issue, denying Amy’s request and stating that it was “not inclined to extend discovery deadlines.”

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

¶6        On November 2, eight days before trial, Danny filed a motion to continue, asserting that he had “been unable to complete his 2020 tax return due to problems with his accounting software,” and requesting that the trial be continued so that the parties could “proceed with current and accurate income information.” Additionally, Danny brought to the court’s attention that, on October 20, just twenty-one days before trial— and notwithstanding the court’s previous reticence to extend discovery deadlines—Amy had, “for the first time,” identified two expert witnesses that she intended to call at trial. Danny asserted that these disclosures should have been made “within 14 days after the close of fact discovery,” which, in this case, was some two years earlier in November 2019. Danny asked the court to bar Amy from calling these witnesses at trial and, alternatively, stated that if the court was inclined to allow Amy to call these experts, he should be afforded “the appropriate disclosures and discovery opportunities set forth” in rule 26 of the Utah Rules of Civil Procedure. As an added precaution, Danny filed a notice indicating that—contingent on the court’s ruling as to their admissibility—he would like “to receive written reports” from Amy’s newly-disclosed expert witnesses.

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

¶8        Three days later, the court held a hearing on Danny’s motion. At the conclusion of the hearing, the court granted Danny’s request for a continuance of the trial date and rescheduled the trial to occur on March 1, 2022. The court also indicated that it would allow Amy to call the expert witnesses and it further observed that the continuance would give Danny time to consider whether he wanted to call a rebuttal expert witness of his own. At the conclusion of the hearing, the court noted that the main reason for continuing the trial was so that Danny could complete his 2020 tax return and disclose it to Amy, and it asked the parties whether they wanted to “set a deadline on the tax return.” Danny’s attorney stated that he’d rather not set a specific deadline, and Amy’s attorney didn’t argue for one either, stating that he and Danny’s attorney had “worked well together on that kind of stuff” and that he didn’t think any specific deadline for disclosure of the tax return would be necessary. The court pushed back a bit, asking, “Not a deadline? You’re okay just leaving it out there?” Amy’s attorney responded by stating that he was “fine with that.” In accordance with the parties’ wishes, the court set no specific deadline for Danny’s production of his 2020 tax return. The court’s previous pretrial order remained in place, however; as noted, it specified that all pretrial disclosures—including recent tax returns—were due “at least 28 days before” trial, which given the scheduled trial date would be February 1, 2022.

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

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

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

The Trial

¶12      On March 1, the trial proceeded as scheduled, with Danny representing himself and Amy represented by counsel. At the start of the proceeding, before any evidence had been presented, Danny brought to the court’s attention that, two weeks earlier, he had filed an objection to Amy’s experts, asking that they be excluded from testifying because he still had not received any reports from them. At this, the court turned to Amy’s attorney for an explanation. Amy’s attorney this time did not claim that any expert report had ever been disclosed to Danny; instead, Amy’s attorney explained that Amy had been unable to “supplement[]” her earlier disclosures with the new experts’ reports because Danny had failed to timely provide Amy with financial information—including, most significantly, the 2020 tax return— that the court “had ordered [Danny] numerous times” to disclose. Amy’s attorney proposed that if the court was disinclined to allow these witnesses to testify as experts, they could, instead, be allowed to testify as “factual witness[es]” just to “tell [the court] what a line means on a tax return.”

¶13 Concerned about possible disclosure failings on both sides, the court asked Amy’s attorney whether it was “still the case” that Danny had failed to deliver “the documents, the returns, the information that [the court] ordered be delivered.” To this, Amy’s attorney responded, “Not timely.” Seemingly dismayed at the lack of cooperation between the parties, the court reminded them that the reason it had continued the trial was so that the parties could “exchange documents,” yet they had apparently still failed to “timely” comply with its instructions. Addressing Danny, the court stated, “So if you’re going to come to me and ask . . . that I exclude a witness, you’ve got to come in with clean hands. If your hands are soiled because you yourself have not complied with the rule and you’ve not told me that, that’s a problem, because I’m not going to apply the rules unevenly.” The court—without Amy making any specific request for a negative-inference sanction[2]—then told Danny that his apparent untimely disclosure of the 2020 tax return was “a problem that leads [the court] to think that perhaps a negative inference should be drawn against you . . . because why wouldn’t you just turn over the information that is critical to the [c]ourt’s determination on income since this is an income case?”

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

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

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

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

¶18      During his direct examination, Accountant was presented with exhibits containing Danny’s tax returns—including his 2020 tax return—and other financial documents and was asked questions concerning those documents. For example, Accountant was asked about the purpose of lines “28 A and B” on one of the forms, and he responded, “Those are there to present to the IRS sources of income from businesses that the taxpayer owns.” At another point in the trial, Accountant was also asked whether the W-2 wage on another form was for Danny or if it was “a qualified deduction” from Danny’s company. Accountant responded it was “neither,” and that “the income from the business” would be different from the amount represented on the form “because [it] specifically calculates adjusted income for [that] specific tax deduction.” Direct examination of Accountant continued in this fashion, with him testifying about several line items contained in Danny’s tax returns and what information should or should not be contained therein.

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

ISSUES AND STANDARDS OF REVIEW

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

¶21      A district court’s interpretation of the Utah Rules of Civil Procedure is reviewed for correctness. Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶ 19, 493 P.3d 1131. For this reason, a court’s decision regarding the adequacy of a party’s disclosures is reviewed for correctness. See Butler v. Mediaport Ent. Inc., 2022 UT App 37, ¶ 17, 508 P.3d 619 (stating that “we review for correctness the district court’s conclusion that [a party’s] disclosures were inadequate, because that determination is at root a question of interpretation of” the applicable rules).

¶22      But when a district court’s interpretation of the applicable rules is correct, we extend “a great deal of deference” to the court’s decisions regarding its choice of sanctions, and we will only disturb such rulings “if abuse of discretion is clearly shown.” Raass Bros. Inc. v. Raass, 2019 UT App 183, ¶ 11, 454 P.3d 83 (quotation simplified). Similarly, we review deferentially a “district court’s decision to admit or exclude evidence,” including its “determination regarding the admissibility of expert testimony” for an abuse of discretion. Northgate Village Dev., LC v. City of Orem, 2019 UT 59, ¶ 14, 450 P.3d 1117 (quotation simplified). A court’s determination that a witness’s testimony is “not expert testimony” is similarly reviewed for an abuse of discretion. State v. Rothlisberger, 2006 UT 49, ¶ 8, 147 P.3d 1176.

ANALYSIS

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

¶24 There are two different rules of civil procedure that concern discovery sanctions: rule 26 and rule 37. These two rules, “although couched in different terms,” are both “aimed at encouraging good faith compliance with the discovery obligations imposed under the rules of civil procedure and both provide the court with the authority to sanction those who fail to live up to the requirements of those rules.” PC Crane Service, LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 34, 273 P.3d 396. But despite certain commonalities, the sanctions available pursuant to these rules are different and have distinct prerequisites.

¶25 The sanctions that a court may impose pursuant to rule 26(d) are narrow, but they are also “automatic and mandatory” when the prerequisites are met. See Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 48, 476 P.3d 542. That rule provides, in relevant part, as follows:

(4)   If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.

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

Utah R. Civ. P. 26(d)(4), (5).[3] Thus, when a party fails to comply with rule-based disclosure requirements, that party is “presumptively barred” from relying on that witness, document, or material at trial. See Dierl v. Birkin, 2023 UT App 6, ¶ 31, 525 P.3d 127, cert. denied, 527 P.3d 1107 (Utah 2023). A party seeking sanctions under rule 26(d)—usually a party whose litigation opponent has failed to timely disclose a required item—does not need to file a motion for sanctions and obtain a court order beforehand; rather, sanctions under this rule are “automatic and mandatory” and do “not require a predicate discovery order.” Eskamani, 2020 UT App 137, ¶¶ 47–48. Courts should, upon request, presumptively impose sanctions for noncompliance unless “the party seeking relief from disclosure requirements” can demonstrate that its noncompliance was harmless or excused by good cause. Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 UT 20, ¶ 18 & n.7, 445 P.3d 434; see also Utah R. Civ. P. 26 advisory committee notes (stating that sanctions are “the usual and expected result” of noncompliance).

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

¶27        Rule 37, by contrast, is not self-executing: a party wishing to take advantage of its more expansive sanctions menu must first obtain a discovery order from the court. Subsection (a) of that rule allows a party to “request that the judge enter an order regarding any discovery issue.” Id. R. 37(a)(1). And subsection (b) allows a “court, upon motion, [to] impose appropriate sanctions for the failure to follow its orders.” Id. R. 37(b) (emphasis added). Interpreting the language of this rule, we have recently held that imposition of sanctions under rule 37 is available only for violation of a specific court order. See Eskamani, 2020 UT App 137, ¶ 49 (“Unlike rule 26, rule 37 conditions the availability of discovery sanctions upon the failure of a party to follow a discovery order.”).

¶28      But rule 37 offers a wide variety of sanctions options, and it allows for sanctions that can be more severe than the sanction authorized under rule 26. Where the violation in question is disobedience of a court order (as opposed to noncompliance with a rule-based disclosure requirement), rule 37 authorizes a court to (among other things) “deem [a] matter . . . to be established,” give an “adverse inference” instruction, order attorney fees, hold a party in contempt, or even dismiss a party’s claim or defense. See Utah R. Civ. P. 37(b)(1), (4)–(7). As relevant here, a court may also opt to “prohibit the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters into evidence.” Id. R. 37(b)(2).

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

¶30      But under these circumstances, this sanction was improper. Rule 37 is properly invoked only for violation of a court order, see id. R. 37(b); Eskamani, 2020 UT App 137, ¶ 49, and Danny was not in violation of any court order. The only potentially applicable order is the pretrial order that commanded the parties to disclose their trial exhibits—including, significantly, their latest tax returns and other updated financial information—at least twenty-eight days prior to trial.[4] Danny complied with this order when he submitted his 2020 tax return on or before February 1, 2022—which was at least twenty-eight days prior to the scheduled March 1 trial date.[5] And on appeal, at least, Amy makes no argument to the contrary.[6] In the absence of any evidence that Danny was in violation of a court order, the court was not permitted to impose sanctions on Danny pursuant to rule 37.

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

¶32        Under rule 26(d), the court could have penalized Danny for his two-month disclosure delay, but any such penalty should have been limited to preventing Danny from “us[ing]” the 2020 tax return “at any hearing or trial.” See id. R. 26(d)(4). Even if we were to assume, for purposes of the discussion, that under rule 26(d) the court properly barred Danny from introducing that document on his own account, we are aware of no rule or authority that would allow the court to bar him from introducing other properly disclosed evidence about his income, or from attempting to rebut evidence about his income that Amy introduced at trial. In this vein, we note that, during her evidentiary presentation at trial, Amy introduced Danny’s 2020 tax return into evidence; Danny should not have been barred from engaging with that evidence once Amy voluntarily elected to introduce it. Thus, under the circumstances, the district court’s sanctions order was improper and unduly punitive.

¶33      And in this situation, the court’s improper sanctions order prejudiced Danny. Prejudice is demonstrated when a party shows that the court’s error “impacted the outcome of the dispute.” In re Western Ins. Co., 2022 UT 38, ¶ 55, 521 P.3d 851. In other words, a party is prejudiced if “there is a reasonable likelihood that, absent the error, the result would have been different.” Id. (quotation simplified). Danny asserts that his income is actually less than half of what the court found it to be after the one-sided evidentiary presentation, and he argues that, had he been able to present evidence as to his income, the court would not have made the same determination in that regard. Danny asserts that, if he had not been sanctioned, he would have presented (among other things) his earlier tax returns and evidence regarding his “necessary business expenses,” and would have been able to demonstrate that certain income had been improperly attributed to him. Danny plausibly contends that this would have likely made a difference, and here on appeal, Amy makes no argument to the contrary. And it appears that the district court more or less agreed with this notion, at one point stating that the sanctions imposed were “almost the equivalent of a default.”

¶34 In sum, then, the court entered an improper and unduly punitive sanctions order against Danny. That order prejudiced Danny because it prevented him from meaningfully engaging with the court and with Amy on the subject of his own income; absent the sanctions order, we think the court likely would have reached a different conclusion regarding Danny’s income. Accordingly, we vacate not only the court’s sanctions order but also its modification order (the order containing its findings regarding Danny’s income), and we remand this case to the district court for a new trial on Amy’s petition to modify.

¶35 Our opinion could end here. But we elect to address one of Danny’s other criticisms of the court’s handling of Amy’s petition to modify, in the hope that our guidance on this issue might prove useful on remand. See State v. Ogden, 2018 UT 8, ¶ 49, 416 P.3d 1132 (“Although it is unnecessary to our decision, we retain the authority to reach issues when we believe our analysis could prove helpful on remand.”); see also Young H2ORE LLC v. J&M Transmission LLC, 2024 UT App 10, ¶ 48, 543 P.3d 1264 (electing to “offer some guidance that we hope will prove useful” on remand where the issues in question “are certain to arise again”).

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

¶37 After Amy made a late designation of expert witnesses (which the court eventually authorized Amy to do), Danny asked for a report from those witnesses, including Accountant, in lieu of taking their depositions. But despite certain initial incorrect representations from Amy’s attorney to the contrary, Amy never provided Danny with any report from Accountant.

¶38      Expert witnesses from whom reports have been requested should not be allowed—absent a showing of good cause or harmlessness—to testify about matters not “fairly disclosed in” the requested reports. See Utah R. Civ. P. 26(a)(4)(B) (stating that expert witnesses “may not testify in a party’s case-in-chief concerning any matter not fairly disclosed in the report”); id. R. 26(d)(4); see also R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, ¶ 11, 327 P.3d 1233 (stating that, “where it is undisputed that an expert witness report has been untimely filed, the proper inquiry is whether” the party’s failure to timely submit the report was “harmless” or excused by “good cause” (quotation simplified)), cert. denied, 337 P.3d 295 (Utah 2014). It follows, then, that an expert from whom a report has been requested but who has not provided one should not be allowed to testify at all, absent a finding of good cause or harmlessness, since nothing was “fairly disclosed” in any report. See Utah R. Civ. P. 26(a)(4)(B).

¶39        In this case, the district court allowed Accountant to testify, despite the fact that Accountant never provided an expert report to Danny. The court allowed this, at Amy’s request, on the ground that Accountant would not be asked to offer any expert opinion as to Danny’s income but, instead, would merely be “a factual witness” who would offer testimony about “what a line means on a tax return.” But the court never engaged in any analysis of whether Amy’s failure to provide an expert report from Accountant should be excused for “good cause.” See id. R. 26(d)(4). While Danny’s two-month delay in supplementing his initial disclosures with his 2020 tax return may have provided some cause for Accountant’s inability to timely form opinions regarding Danny’s post-2019 income, neither Amy nor the court ever offered an explanation as to why Danny’s delay in disclosing his 2020 tax return provided any cause for Accountant’s failure to provide a report containing opinions about what line items on a tax return mean.

¶40      And we are not persuaded by Amy’s effort to characterize this kind of testimony as “fact testimony.” As an initial matter, even fact witnesses have to be disclosed in a timely manner, and— although Amy did obtain permission to make a late expert designation of Accountant—Amy did not disclose Accountant as a fact witness in a timely manner. Any such disclosure should have been made in Amy’s initial disclosures, in order to give Danny the opportunity to depose (or seek other discovery from) the witness. It is not proper, absent specific leave of court, for a party to disclose a fact witness for the first time in connection with its final pretrial disclosures. After all, witnesses and exhibits disclosed in final pretrial disclosures are intended to be merely a subset of the witnesses and exhibits already disclosed earlier in the case. See Ader v. SimonMed Imaging Inc., No. CV-17­02085, 2020 WL 13442907, at *2 (D. Ariz. Sept. 22, 2020) (stating that, “[t]ogether, initial and supplemental disclosures reveal the full universe of potentially relevant evidence for every claim or defense,” and that in preparation for making final pretrial disclosures, the parties must then “sift through” that earlier-disclosed evidence to arrive at a “narrowed universe” of evidence “aimed at trial preparation”). Allowing a party to use its pretrial disclosures to introduce new evidence and new witnesses would therefore be contrary to the very purposes of rule 26. See Johansen v. Johansen, 2021 UT App 130, ¶ 18, 504 P.3d 152 (stating that where a party’s pretrial disclosures, submitted only “28 days before trial,” identified for the first time the witnesses that the party intended to rely on at trial, that disclosure was contrary to “the purpose of rule 26, which is to preclude parties from trying to gain an advantage by offering ‘surprise’ testimony at trial that has not been properly disclosed” (quotation simplified)); see also In re Morrissey, No. AP 20-2045, 2022 WL 666803, at *5 (Bankr. D. Utah Mar. 4, 2022) (noting that if a party “were permitted to treat the [pretrial disclosure] deadline as though it were the [initial disclosure] deadline, it would completely undermine the purposes of” the rule governing initial disclosures).

¶41 But more to the point, the testimony that Accountant ended up giving at trial was not fact testimony; it was expert testimony. A “fact witness” is someone “who has firsthand knowledge of something based on the witness’s perceptions through one [or] more of the five senses.” Fact Witness, Black’s Law Dictionary (11th ed. 2019). “Lay fact testimony”—which is the type of testimony that the district court and Amy assert that Accountant provided—is “factual testimony not based on scientific, technical, or other specialized knowledge.” State v. Rothlisberger, 2006 UT 49, ¶ 11, 147 P.3d 1176; see also Warenski v. Advanced RV Supply, 2011 UT App 197, ¶ 8, 257 P.3d 1096 (stating that testimony that is “clearly based on scientific, technical, or other specialized knowledge” should be considered as “expert testimony rather than fact testimony” (quotation simplified)), cert denied, 268 P.3d 192 (Utah 2011). A fact witness is thus only allowed to “testify in the form of fact or opinion” if the testimony “is helpful to the finder of fact” and is within the witness’s “personal knowledge or perception.” State v. Sellers, 2011 UT App 38, ¶ 26, 248 P.3d 70; see also Utah R. Evid. 701.

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

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

CONCLUSION

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

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


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

[2] Prior to the trial, Amy had filed a document stating a general objection to Danny’s pretrial disclosures, asserting that some of Danny’s exhibits had not been disclosed “in a timely manner” and asking the court to enter an order barring Danny from using such exhibits at trial. Neither in that document nor at trial did Amy ask for a negative-inference sanction (at least not until after the court brought it up on its own).

[3] An earlier version of rule 37 contained a provision similar to rule 26(d)(4). See Utah R. Civ. P. 37(h) (2013). That provision was deleted in 2015, apparently because the drafters considered it redundant. See id. R. 37 advisory committee notes to 2015 amendment (“Former paragraph (h), which prohibited a party from using at a hearing information not disclosed as required, was deleted because the effect of non-disclosure is adequately governed by Rule 26(d).”). In the rules’ current iteration, this language appears only in rule 26(d)(4).

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

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

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

[7] 7. Conduct similar to Danny’s might, under some circumstances, also be a violation of rule 26.1(f), which provides that a party’s “[f]ailure to disclose all assets and income in the Financial Declaration and attachments” in a domestic relations action “may subject the non-disclosing party to sanctions under Rule 37.” See Utah R. Civ. P. 26.1(f). Indeed, Amy invites us to affirm the court’s sanctions order on this basis. We decline this invitation because, in our view, this alternative ground for affirmance is not apparent on the record. See Pentalon Constr., Inc. v. Rymark Props., LLC, 2015 UT App 29, ¶ 25, 344 P.3d 180 (“We will not affirm a judgment if the alternate ground or theory is not apparent on the record.” (quotation simplified)). As an initial matter, this argument is unpreserved; at trial, there was no discussion of rule 26.1 from any party or from the court, and there is no indication in the record that the court intended to base its sanction on rule 26.1(f). Moreover, it is far from apparent to us that the language of rule 26.1(f) authorizes rule 37 sanctions in the absence of a court order; certainly, Amy has not persuaded us that this is the case, especially given the plain language of rule 37(b) and our case law. See, e.g.Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 49, 476 P.3d 542.

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

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2024 UT App 47 – In re K.J. – removal, shelter hearing

2024 UT App 47 – In re K.J.

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.J., M.J., AND K.J.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.F. AND K.J., Appellants, v. STATE OF UTAH, Appellee.

Opinion Nos. 20230102-CA and 20230103-CA Filed April 4, 2024

First District Juvenile Court, Logan Department The Honorable Bryan P. Galloway No. 1218130

Alexandra Mareschal, Kirstin Norman, and Jason B. Richards, Attorneys for Appellant D.F. Emily Adams, Attorney for Appellant K.J. Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 In separate appeals that we consider together in this opinion, K.J. (Father) and D.F. (Mother) (collectively, Parents) challenge the juvenile court’s orders removing their three children (Children) from their home and, later, adjudicating the Children abused and neglected. Parents’ main challenge concerns the court’s adjudication that they abused and neglected the Children.          Parents also assert that, in one respect, they received ineffective assistance of counsel. For the reasons discussed, we find Parents’    arguments on these two topics unpersuasive.

¶2     But Parents also assert that, during the shelter hearing held at the beginning of the case, the juvenile court did not undertake a proper and complete analysis of the factors the governing statute required the court to consider. In this respect, Parents’ arguments have merit, and we remand the case so that the juvenile court can conduct the proper statutory analysis.

BACKGROUND

¶3 Parents are the legal and biological parents of three “medically complex” children: Kevin, Mia, and Kaleb.[1] The family moved to Utah in 2022, after having lived in Nevada and Arizona; at that time, Kevin was five years old, Mia was four, and Kaleb was not quite two. Parents believed that the Children suffered from a long list of various medical maladies; when the family arrived in Utah, all three Children—despite having largely different medical diagnoses—had surgically placed gastric feeding tubes (G-tubes), were developmentally delayed, and used wheelchairs for mobility.

¶4 In July 2022, Kevin was rushed to a local hospital by ambulance after Mother reported that he had suffered a seizure. Mia was hospitalized at the same time due to concerns about weight and dehydration. Kevin and Mia were transferred to Primary Children’s Medical Center (PCMC) in Salt Lake City; Kevin was treated with IV fluids to address “severe hypernatremia” due to dehydration. Kevin and Mia ended up staying at PCMC for nearly two weeks, and Kevin was even admitted to the pediatric intensive care unit. While Kevin and Mia were at PCMC, medical professionals there became concerned that they were being medically neglected. In particular, hospital personnel observed that Kevin and Mia were “severely underweight,” despite the presence of G-tubes, and “were considered a failure to thrive.”

¶5   After Kevin and Mia were discharged from PCMC, all three Children were referred to a pediatric nurse practitioner (Nurse Practitioner) for follow-up primary care. When the Children arrived at her medical clinic, Nurse Practitioner discovered that the Children—partly due to only recently having arrived in Utah—were not yet set up for medical insurance. But after examining the Children, Nurse Practitioner agreed to treat them anyway, despite their lack of insurance, because in her view “it was medically necessary to see them regardless of the insurance difficulties.” As she saw it, “these kids needed medical care whether [she] got paid” or not, because they were facing “significant medical issues” that she considered potentially “life and death” matters. The Children arrived at her clinic in wheelchairs and were developmentally delayed and nonverbal. None were toilet trained. Over the course of her treatment— which lasted several weeks—Nurse Practitioner also observed that the Children had not been “gaining [weight] as they [had been] in the hospital,” which made her wonder whether the Children might at some point need “to be rehospitalized.”

¶6 A few weeks later, a pediatrician (Pediatrician) was assigned to the Children. When he first saw the Children, he observed that they were all “nonverbal,” and while Kevin had some ability to walk on his own, Mia and Kaleb were “nonambulatory.” During the course of his treatment of the Children, he worked with them to improve their motor skills and their ability to walk, and he monitored their weight, which he indicated was the thing he was “following most closely.” Soon after Pediatrician took over primary care of the Children, Kaleb came in for his “two-year well[ness] visit.” During that visit, Mother indicated that Kaleb had spina bifida, which is “a neural defect at the base of the spine” that can often be fixed with surgery. Mother insisted that Kaleb had already had the surgery to correct the spina bifida, and she even pointed to Kaleb’s back where she indicated there was a scar from the surgery. But Pediatrician saw no scar.

¶7 At some point after Kevin and Mia were released from PCMC, a physician at Nurse Practitioner’s clinic contacted the Utah Division of Child and Family Services (DCFS) to notify them about potential issues with the Children. Thereafter, DCFS assigned caseworkers to investigate the matter, and those caseworkers made some ten visits to Parents’ home, prior to removal, to check on the Children and to assess the situation. These visits occurred at different times of day, yet in every visit except for one, the Children were all confined in “Pack ‘n Play” playpens. Parents stated that the Children needed to be in the playpens so that their G-tubes could function properly, but caseworkers observed that Parents had—but were not using— portable devices that would have maintained a “continuous feed” from the feeding tubes without restricting the Children’s movement. On one visit, one of the caseworkers asked Mother to show her the Children’s medications, and in response Mother brought out a large “two feet by three feet” sized tote bag “full of prescription bottles and different ointments.” During this time, Kevin—who was five years old and eligible to begin kindergarten—was not enrolled in school and therefore was not receiving any of the services a school could potentially provide to a medically complex child.

¶8 In addition to receiving primary care from Nurse Practitioner and Pediatrician , the Children were also referred to and treated by the Pediatric Complex Care Clinic at PCMC. They missed their first scheduled appointment with the clinic, which caused the lead physician there (Physician) a great deal of concern, because she knew that “it was critical that [PCMC] follow up with” the Children. Physician notified DCFS of the missed appointment, which was eventually rescheduled for about three weeks later.

¶9       At that rescheduled visit, Mother reported to Physician that the Children were all suffering from “dysphagia,” which is the “inability to swallow food properly.” Physician observed that Kevin and Mia had “continued to lose weight” since their discharge from the hospital. This was troubling, because the Children all had G-tubes, which exist primarily to make sure the Children are receiving enough nutrition; as one member of the PCMC team testified, “a child with a G-tube whose caregiver is fully responsible for that nutrition intake should not be experiencing failure to thrive in the absence of a disease or pathology that could cause failure to thrive.”

¶10 PCMC doctors investigated whether there could be any medical reason for the Children’s continued malnutrition and failure to gain weight, and eventually concluded that “none of the [C]hildren [had] a pathology consistent with a disease process that could cause failure to thrive.” Indeed, the PCMC team eventually determined that the Children’s “malnourishment and poor growth [were] directly related to insufficient caloric intake,” despite their G-tubes, and that the Children’s “failure to thrive was not due to their medical conditions but due to [Parents’] neglect . . . in feeding them appropriately.”

¶11 In addition, after her examination of the Children, Physician was concerned “that the [medical] history being provided by” Parents was “not consistent with what” she was “seeing on physical exam.” Given these concerns, the PCMC team then set out to review the Children’s various medical diagnoses, as reported by Parents, with the goal of verifying or eliminating each of them. As reported by Parents, the Children suffered from the following medical maladies, among others:

·         Kevin had suffered a stroke either in utero or shortly after birth, and had Ehlers-Danlos syndrome, Erb’s palsy, a seizure disorder, hearing loss, premature birth, sleep apnea, and an “allerg[y] to the sun.”

·         Mia had DiGeorge syndrome, blindness, hearing loss, premature birth, cerebral palsy, and prediabetes.

·         Kaleb had spina bifida, gastroparesis, premature birth, clubfoot affecting both feet, urinary retention issues that required catheterization, and hydrocephalus.

In an effort to confirm these diagnoses, the PCMC team requested, obtained, and reviewed over 7,000 pages of medical records regarding the Children, including records from Nevada and Arizona. After completing their review, and after examining the Children both before and after removal, the PCMC team was able to confirm some of the diagnoses. For instance, Kaleb does suffer from clubfoot in both feet, and Mia does have a genetic disorder similar to DiGeorge syndrome. But with regard to most of the diagnoses, the PCMC team concluded that Parents’ assertions were simply unsupported by any medical evidence. In particular, they eventually determined that Kevin does not suffer from Ehlers-Danlos syndrome or any seizure disorder, and that he did not have a stroke either in utero or shortly after birth; that Mia was not legally blind; and that Kaleb did not have spina bifida or hydrocephalus and did not need catheterization.

¶12     Based on these conclusions, and on their examination of the Children, the PCMC team determined that Kevin and Kaleb “had been the victim[s] of” “medical child abuse,”[2] and that the team had “serious concerns” in that regard about Mia. They called for “hospital admission” for the Children to “de-escalate elements of [their] care that are unfounded” and to “restart crucial interventions that have been ignored,” with a focus on “nutrition and aiding age-appropriate development.” And they recommended “development of a long-term plan for trauma- informed counseling and adherence to broad therapies, including speech therapy, occupational therapy, and physical therapy.”

¶13 The PCMC team then met with DCFS caseworkers to explain their findings. Based in part on the information its agents learned at that meeting, the State determined to seek removal of the Children from Parents’ home, and the very next day the State sought and obtained a removal warrant.

¶14 After obtaining the warrant, DCFS caseworkers traveled to Parents’ home to remove the Children. When they arrived, the caseworkers again found the Children in their playpens. Parents were cooperative, however, and Mother changed the Children’s clothes in preparation for the drive to PCMC. One caseworker observed that the Children were “a little stinky” and “had an odor to them like they hadn’t bathed in a few days.” The drive to the hospital was uneventful; Kaleb “babbled . . . baby talk,” while Kevin and Mia were “lethargic” and had a “very flat affect.”

¶15 When the Children arrived at PCMC, hospital staff immediately noticed that the Children exhibited “very poor hygiene” and observed that the Children were each double or triple diapered and that the diapers were “sopping through.” After the wet diapers were removed, hospital staff discovered that the Children had “fairly extensive [skin] breakdown in the diaper area” that was severe enough to require the assistance of the hospital’s “wound clinic.” Hospital staff noted that these sorts of wounds do not occur “overnight” and were the result of “there being wetness on the skin without appropriate response for some period of time.” The Children also had “irritability and breakdown” around their G-tube sites; as with the diaper-area wounds, these wounds also required the assistance of the hospital’s wound clinic.

¶16 Medical personnel also observed that the Children were “malnourished and under expected weight for [their] ages.” Kevin was determined to be “severely malnourished,” while Mia and Kaleb were determined to be “moderately malnourished.” And blood tests on Kaleb “revealed abnormalities very concerning for chronic malnutrition.”

¶17 The doctors considered the Children’s malnutrition to be concerning, and they set about to discover why the Children were unable to regularly eat solid food. All three Children were administered “swallow studies” to determine their “ability to eat and drink by mouth.” Kevin had such a severe “oral aversion to food and drink” that hospital personnel were unable to complete the test, and he was referred to a “speech/language pathologist” to help him overcome the aversion. Mia was “found to have a significant oral aversion to liquids,” and was also referred to a “speech/language pathologist.” Kaleb, on the other hand, was determined to have no oral aversion and was “eager to eat and engaged with all thicknesses of feeds.” Doctors concluded that Kevin and Mia’s oral aversion was “likely the result of not being provided with solid food” at home, and that Kaleb’s test results indicated a “serious concern” that he “did not need a feeding tube” at all.

¶18 Following removal, the Children stayed in the hospital for six days “to medically stabilize them and properly diagnose their conditions” through further examination and testing. During this time, the PCMC team was (as noted above) able to confirm the conclusions it had reached based on the earlier records review.

¶19     Upon discharge from PCMC, the Children were placed into foster care. Kevin and Mia were placed in the same homes, a temporary one at first for a few weeks before being moved to a more permanent placement. Kaleb was placed with a different foster family. Once in foster care, the Children showed rapid and measurable improvement. After having Kevin and Mia for only about a month, their foster mother reported that, while Kevin could only “scootch around the house on his hiney” when he arrived, he eventually learned not only to walk but to run, and he could often be seen doing “laps” around the kitchen island. He also began to allow his teeth to be brushed (something he had refused to allow at first), had become “a lot more personable” and affectionate, and began attending kindergarten and “loves school.” Mia had some ability to walk when she arrived but was “[v]ery unstable”; over time, however, she had learned to “run really fast.” The foster mother obtained glasses for Mia, which helped her navigate the world better. In the beginning, Mia refused to bathe, and would start “screaming and rocking and shaking” when asked to do so, but over time had become accustomed to it and “now she loves bath time.” And Kaleb’s foster mother reported that Kaleb could not crawl, walk, or talk when he arrived, but within a few weeks he learned how to not only crawl but walk with the help of furniture, and he was able to say several words.

¶20 The foster parents also reported that they had enrolled the Children in appropriate schooling. Kevin was enrolled in kindergarten, where he began to receive speech and occupational therapy through the school. Mia was enrolled in preschool, where she was given an individualized education plan that included speech therapy. And Kaleb was enrolled in a state-run program known as “Up to Three,” where he was able to obtain physical and speech therapy.

¶21 With regard to nutrition and weight gain, all three Children demonstrated swift and marked improvement in foster care. It wasn’t long before the Children no longer required 24- hour G-tube feeding; soon, the Children were receiving feedings through the tube only at night and just two or three times during the day. All of them were soon eating solid foods; Kevin’s foster mother reported that he had “tried 20 new foods” and he liked “spaghetti and pasta and yogurt and ice cream.” Following an appointment about a month after foster placement, Physician noted that Kevin “looks to be doing great” and stated that, from “a weight perspective, he is gaining weight appropriately.” And she noted that Mia “looked to be in excellent physical health.”

¶22 Soon after the Children were removed from Parents’ care, Pediatrician set up a meeting to inform Parents of the Children’s condition and accurate diagnoses. Parents refused to accept the PCMC team’s conclusion that many of the previous diagnoses were inaccurate; indeed, Pediatrician described Parents’ reaction as one of “scoffing and disbelie[f] and unacceptance.” Pediatrician later stated that, because of Parents’ “blatant disregard of facts from medical tests and expert opinions from specialists,” he “would be very worried” about the Children if they were to be placed back in Parents’ care.

¶23 In the meantime, legal proceedings began in the juvenile court. One week after removal, the court held a shelter hearing, at which it heard testimony from Mother, Father, and one member of the PCMC medical team. At the conclusion of the hearing, the court stated that it was “convinced by a preponderance [of the evidence] that the [C]hildren were being neglected” by Parents. The court noted that daily oversight of the Children had been Parents’ responsibility, and that this “oversight was done in a way that was neglectful.” It specifically mentioned that, upon arrival at the hospital after removal, the Children all had “soiled” diapers and “open sores” in the diaper area as well as around the G-tube sites. The court noted that the Children “needed a great deal more medical oversight” than they had been getting, and that “at the very least” the case presented “medical neglect” with a “strong indication” that there was also “medical abuse.” The court stated that it had been “up to [Parents] to identify [the issues] and care for these [C]hildren,” who “were not thriving.”

¶24 After making its findings of neglect, the court finished its shelter analysis with the following remarks:

The [c]ourt does find that given the current state of the [C]hildren, exigent circumstances existed with regards to the removal. The removal was proper. At this particular time until there is a plan in place, the continued removal is necessary. Okay? At some point in time if a plan is in place and the parents have shown the ability to take into consideration the current medical condition of the [C]hildren and have shown the ability to work with the professionals that are providing that care for the [C]hildren, I don’t see why it cannot at least be considered that the ongoing continued removal would not be necessary. Okay?

At this point, I just don’t have enough with regards to that. The only thing I have is that there was testimony that if placed back in the care of [Parents], this is going to get worse and worse and worse. I don’t think that has to be the case really.

So I do find removal proper, . . . [a]nd I do find that exigent circumstances, emergency circumstances did exist with relation to the removal at the time the [C]hildren were removed which absolved [DCFS] of the need to provide reasonable efforts to keep the [C]hildren in the home.

¶25 Later, the court issued an order memorializing its oral ruling. It found that “[t]he lack of physical care that the [C]hildren received by [Parents] constitutes neglect,” and that the Children were “clearly not thriving.” The court found that “[r]emoval of the [C]hildren from the home was proper and in [their] best interest,” and that it was “contrary to [their] well-being . . . to remain in the home.” And it found that, “because an emergency situation . . . existed at the time of removal, . . . any lack of pre- placement preventative efforts was appropriate and justified.”

¶26 About six weeks later, the juvenile court held an adjudication trial. Over three trial days, the court heard from thirteen witnesses, including the involved DCFS caseworkers, Nurse Practitioner, Pediatrician, the foster parents, and various members of the PCMC medical team. They all testified about the events described above. At one point during the trial, the Children visited the courtroom, an event the court noted for the record, stating that it “was able to” see the Children and “watch them interact with” Parents. At the conclusion of the trial, the court took the matter under advisement.

¶27 Some ten days later, the court issued a lengthy written ruling in which it summarized the evidence presented at trial and then determined that the Children had been abused and neglected by both Parents. With regard to abuse, the court found that the Children had “suffered or been threatened with nonaccidental harm in that unnecessary medical interventions have been performed that have caused physical harm” to the Children. In support of this finding, the court pointed to six different “unnecessary medical interventions”: (1) a CT scan performed on Kaleb in 2022 that was against medical advice; (2) Mother’s “[i]ntermittent catheterization” of Kaleb; (3) various medical tests performed on Kevin that “expos[ed him] to radiation unnecessarily”; (4) various unnecessary blood draws on Mia;

“bronchoscopies and modified Barium swallow studies” performed on all three Children that “may not have been necessary”; and (6) Parents’ actions in “maintaining the [C]hildren on G-tubes” and “constant[ly] plac[ing]” them in playpens, actions the court found had “harmed the [C]hildren to the point that they became unable to eat food orally or develop the ability to walk.”

¶28     With regard to neglect, the court’s conclusion rested on two separate grounds. First, the court pointed to the Children’s condition upon arriving at the hospital, finding that they were “malnourished” without any “medical reason” and “[d]espite placement of feeding tubes and 24/7 feeding,” and that they were “nonverbal and unable to walk” because of parental neglect and not because of “their medical complexity.” Based on their condition at the time of removal, the court concluded that the Children were neglected because Parents had failed “to provide for their basic physical needs on a day-to-day basis.”

¶29 Second, the court pointed to Parents’ belief that the Children had various medical maladies, many of which did not appear to be borne out by medical evidence, noting by way of example that there is no evidence that Kaleb has spina bifida or hydrocephalus. In that same vein, the court found that the Children “have not received appropriate interventions for their developmental needs,” noting specifically that Mia had not received appropriate medical treatment for certain neurological conditions and that none of the Children had been “enrolled in any physical therapy, occupational therapy, feeding therapy, or speech therapy since the family arrived in Utah.” Accordingly, the court concluded that the Children were neglected because Parents had “failed or refused to provide proper and necessary subsistence [and] medical care when required.”

¶30 After finding both abuse and neglect, the court concluded that “continued removal” was “in the best interest” of the Children, and that DCFS had “made reasonable efforts to prevent the removal,” but that those efforts had been “unsuccessful.” The court ordered that the Children “be placed in [DCFS’s] custody and guardianship for appropriate placement.”

ISSUES AND STANDARDS OF REVIEW

¶31 Parents now appeal, and they raise three issues for our review. First, Parents challenge the juvenile court’s determination, made after the adjudication trial, that they had abused and neglected the Children. In this context, “we apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859 (quotation simplified). The factual findings underlying an abuse or neglect adjudication are reviewed deferentially and are reversed only if clearly erroneous. See In re K.K., 2023 UT App 13, ¶ 21, 525 P.3d 519. But the court’s ultimate determination regarding abuse or neglect is reviewed for correctness, because making that determination, which involves applying a given set of facts to statutory criteria, “is primarily a law-like endeavor.” See In re M.S., 2023 UT App 74, ¶ 23 (quotation simplified).

¶32 Second, Parents assert that, in one respect, their attorneys rendered constitutionally ineffective assistance. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the [party] was deprived of the effective assistance of counsel as a matter of law.” State v. Kitzmiller, 2021 UT App 87, ¶ 14, 493 P.3d 1159 (quotation simplified).

¶33 Finally, Parents challenge the juvenile court’s earlier order following the shelter hearing, asserting that the court failed to engage in the proper statutory analysis before issuing its order finding that removal was necessary. In particular, Parents assert that the court did not properly analyze whether DCFS had made reasonable efforts to prevent removal, and that the court did not properly analyze whether there were services available, going forward, that might have prevented removal. At root, Parents’ assertion is that the juvenile court misapplied the shelter statute. “We review [a lower] court’s application of a statute for correctness.” Estate of Higley v. Utah Dep’t of Transp., 2010 UT App 227, ¶ 6, 238 P.3d 1089 (quotation simplified).

ANALYSIS

Adjudication Order

¶34 Parents’ main challenge is to the merits of the juvenile court’s adjudication order, in which the court determined that the  Children were abused and neglected as to both Parents. For the reasons discussed, we affirm the juvenile court’s determination that Parents neglected the Children. In light of that ruling, and given the posture of Parents’ arguments on appeal, we need not consider the merits of the court’s abuse adjudication.

Neglect

¶35 We first consider Parents’ challenge to the juvenile court’s neglect adjudication. In this context, “[n]eglect” includes parental “action or inaction causing” any one of six different results. See Utah Code § 80-1-102(58)(a). Yet not all six results are necessary for a neglect determination; when “the juvenile court [finds] neglect under several subsections, to affirm we need conclude only that neglect was established under one of the bases.” In re G.H., 2023 UT App 132, ¶ 28, 540 P.3d 631.

¶36 In this case, the juvenile court determined that Parents had neglected the Children under two of the six statutory subsections. First, based on the condition of the Children at removal, the court determined that Parents’ action or inaction caused a “lack of proper parental care of a child by reason of the fault or habits of the parent.” See Utah Code § 80-1-102(58)(a)(ii). Second, and alternatively, the court determined, based on the Children’s medical conditions, that Parents had failed or refused “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.

§ 80-1-102(58)(a)(iii). For the reasons discussed, we conclude that the juvenile court’s first ground is supported by the evidence in this case, and we therefore need not reach the second.

¶37 In our view, the Children’s condition at removal alone was sufficient for the juvenile court to determine that the Children were neglected. The Children were all malnourished, one of them “severely” so. They were all underweight and failing to thrive. Moreover, they all had mobility problems; none of them could walk in an age-appropriate manner. And none were toilet-trained. In addition, they arrived at PCMC with open sores in their diaper areas and around their G-tube sites that were severe enough to require consultation with the hospital’s wound clinic.

¶38 Even though the Children are medically complex, the juvenile court found that there was no medical reason for their malnourishment, failure to thrive, or open wounds. That finding was not clearly erroneous. It should go without saying that allowing open wounds to develop or remain untreated is not medically necessary; certainly, Parents make no assertion to the contrary. And with regard to malnourishment and failure to thrive, PCMC doctors investigated whether there could be any medical reason for the Children’s continued malnutrition and failure to gain weight, and eventually concluded that no such medical cause existed here. Absent a medical cause, children with G-tubes should not be malnourished. Following examination and testing, the PCMC team eventually determined that the Children’s “malnourishment and poor growth [were] directly related to insufficient caloric intake,” despite G-tubes, and that their “failure to thrive was not due to their medical conditions but due to [Parents’] neglect . . . in feeding them appropriately.”

¶39   Parents resist the court’s neglect determination by pointing to the neglect statute’s exception for “reasonable and informed” health care decisions. See id. § 80-1-102(58)(b)(ii) (“Neglect does not include . . . a health care decision made for a child by the child’s parent or guardian, unless the state . . . shows . . . that the health care decision is not reasonable and informed.”). They assert, in essence, that their care of the Children has consisted of a series of health care decisions that the State has not shown to be unreasonable or uninformed. And on that basis they argue that the court’s neglect determination was incomplete and improper.

¶40 Parents’ arguments might have more force if the reason the State was asserting neglect had to do with a specific medical decision Parents made for the Children—say, for instance, their decision to place G-tubes in all three Children. But in this case, the juvenile court’s neglect determination was—at least in relevant part—not based on any specific health care decision but, instead, on the Children’s condition at the time of removal. On that score, Parents—unlike the parents in In re M.S., 2023 UT App 74, ¶¶ 41– 48, 533 P.3d 859, who asserted that their baby’s low weight was due to their decision to exclusively use breast milk rather than formula—make no effort to defend the Children’s malnutrition and failure to thrive by pointing to any particular health care decision, whether reasonable and informed or not. Indeed, as noted, PCMC doctors concluded, after examination and testing, that there was no medical justification for the Children’s malnutrition and failure to thrive. Under these circumstances, the statutory exception to “neglect” for “reasonable and informed” health care decisions simply has no application.

¶41 We therefore affirm the juvenile court’s determination that, based on the Children’s condition at removal, Parents—through their own “fault or habits”—had failed to provide “proper parental care” to the Children. See Utah Code § 80-1-102(58)(a)(ii). Because we affirm under subsection (a)(ii), we need not further discuss the court’s alternative neglect determination, made under subsection (a)(iii). See In re G.H., 2023 UT App 132, ¶ 28.

Abuse

¶42 Moreover, because we affirm the juvenile court’s neglect determination, we need not—in this case—consider the merits of the court’s abuse determination. Juvenile court jurisdiction over a child can be based on, among other things, either abuse or neglect. See In re G.B., 2022 UT App 98, ¶ 32, 516 P.3d 781 (“Importantly, jurisdiction could properly be based on either the abuse determination or the neglect determination.”). Our decision affirming the juvenile court’s neglect adjudication means that the court has continuing jurisdiction over the Children, regardless of the merits of Parents’ challenge to the court’s abuse adjudication.

¶43 In situations like this one, the propriety of the court’s abuse adjudication ends up being an inconsequential point, unless the affected parent can demonstrate that there will be “collateral consequences associated with an abuse determination that do not follow from a neglect determination.” Id. ¶ 34. In this case, Parents make no effort to articulate any collateral consequences that might follow from an abuse adjudication that are not already present from a neglect adjudication. And when asked during oral argument if we would need to address abuse if we were to affirm on neglect, Parents agreed that, in that situation, we would not need to address abuse. We therefore have no occasion to consider the merits of Parents’ challenge to the court’s abuse adjudication.

Ineffective Assistance of Counsel

¶44 Next, Parents assert that their attorneys provided ineffective assistance during the adjudication proceedings by failing to consult with or call an expert who could have testified about “medical child abuse” and about Parents’ state of mind and intentions regarding their care of the Children. Under the circumstances of this case, we reject Parents’ claim of ineffective assistance of counsel.

¶45 In child welfare cases, we employ the “Strickland test to determine a claim for ineffective assistance of counsel.” See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (citing Strickland v. Washington, 466 U.S. 668 (1984)), cert. denied, 890 P.2d 1034 (Utah 1994). Under that test, Parents “must show that (1) counsel’s performance was deficient and (2) this deficient performance prejudiced the defense.” In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quotation simplified). “To demonstrate deficient performance,” Parents “must persuade this court that, considering the record as a whole, [c]ounsel’s performance was objectively unreasonable.” In re R.G., 2023 UT App 114, ¶ 16, 537 P.3d 627. And to show prejudice, Parents “must demonstrate a reasonable probability that the outcome of [their] case would have  been different absent counsel’s error.” In re C.M.R., 2020 UT App 114, ¶ 21 (quotation simplified). “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.” Id. (quotation simplified). In this case, Parents cannot meet either element of the Strickland test.

¶46 In support of their ineffective assistance claim, Parents have submitted a declaration from a forensic pathologist (Expert) who indicates that he has experience in cases of medical child abuse. Expert offers his view that, in most cases of medical child abuse, the “responsible parent . . . receives some form of secondary benefit, either financial or psychologic, from the inappropriate and unwanted medical care the child receives.” But he states that, in other cases, the unnecessary medical care is the result of “miscommunication between medical providers and patients” and of “the unsophistication and/or limited cognitive resources” of the parents. Expert states that, in order to offer a useful opinion in this case, he would need to undertake “an adequate psychologic and cognitive assessment” of Parents. He has not yet undertaken any such assessment, although he notes that he has reviewed the reports of another examiner who assessed Parents, and he offers his view that these reports “appear to endorse mental functioning deficits” on Parents’ part “that could lead to inaccurate conceptualizations of [the Children’s] medical conditions and treatment needs,” and that nothing he sees in those reports “implies [that Parents] are putting [the Children] at risk for selfish or self-aggrandizing motives.”

¶47 Under the circumstances presented here, a reasonable attorney could have decided not to consult Expert. The opinions Expert offers speak only to medical child abuse, and not to whether Parents neglected the Children by not feeding them enough and not enabling them to grow and thrive despite their medical maladies. As noted above, we affirm the juvenile court’s neglect determination without reaching the merits of any questions about the propriety of the Children’s various medical diagnoses. Because Expert has nothing useful to say about Parents’ manifest neglect of the Children notwithstanding their diagnoses, a reasonable attorney could have determined that consultation with Expert was not necessary or helpful. Accordingly, we conclude that Parents have not demonstrated that their attorneys performed deficiently.

¶48 For much the same reason, Parents have also not shown prejudice. Even if their attorneys had consulted with and retained Expert, his testimony—given that it goes only to abuse and not to Parents’ neglect of the Children as evidenced by the Children’s condition at removal—would not have made a difference to the outcome of this case.

¶49 Thus, we conclude that Parents have not borne their burden of demonstrating that their attorneys rendered constitutionally ineffective assistance.

The Shelter Order

¶50 Finally, we consider Parents’ challenge to the juvenile court’s earlier shelter order. Before considering the merits of that challenge, we address one preliminary issue: whether Parents have properly appealed the shelter order. After concluding that Parents have properly mounted an appeal from the shelter order, we proceed to address the merits of Parents’ arguments.

Appealability

¶51 We do not see very many appeals from shelter orders. We suspect that this is because shelter hearings occur at the very beginning of any child welfare case, and because orders coming out of those hearings are not considered final orders that are immediately appealable as of right. We therefore take this opportunity to discuss the appealability of shelter orders, and we

conclude that Parents have properly appealed from the shelter order here.

¶52 “As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that ends the controversy between the litigants.” In re J.E., 2023 UT App 3, ¶ 17, 524 P.3d 1009 (quotation simplified). And, at least conceptually, “the finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts.” Id. ¶ 18 (quotation simplified). “But it is fair to say that, in appeals from juvenile court, finality is viewed somewhat more flexibly than in the district court context.” Id. ¶ 19. In juvenile court cases, “the determining factor” as to finality “is whether [the order in question] effects a change in the permanent status of the child.” Id. (quotation simplified). Using this “pragmatic analysis of the order itself,” Utah appellate courts have concluded that, in juvenile court cases, “appeals may be heard from more than one final judgment.” Id. (quotation simplified). In particular, adjudication orders and termination orders are considered final orders that are appealable as of right, while “shelter orders” are “not considered final.” Id. ¶ 20; see also In re S.A.K., 2003 UT App 87, ¶ 13, 67 P.3d 1037 (“An adjudication order is one such judgment that we have found to be final for purposes of appeal.”); In re M.V., 937 P.2d 1049, 1051 (Utah Ct. App. 1997) (per curiam) (holding that, because a shelter hearing only creates temporary orders, “a shelter hearing order . . . is not final and appealable as a matter of right”).

¶53 Because shelter orders are not considered to be final orders, they are not immediately appealable as of right.[3] To properly appeal such orders as a matter of right, the party wishing to challenge the shelter order must wait until the court has entered a final appealable order. At that point, the party may take an appeal from the final order, which appeal “may include challenges to interlocutory orders” issued by the court prior to entry of the final order. Jensen v. Jensen, 2013 UT App 143, ¶ 2 n.1, 304 P.3d 878 (per curiam); accord U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 13, 990 P.2d 945.

¶54 In this situation, the adjudication order was the first final and appealable order issued by the juvenile court following entry of the shelter order. Thus, Parents’ opportunity to appeal the shelter order as of right presented itself upon entry of the court’s adjudication order. And Parents seized that opportunity by filing their notices of appeal. In each notice, Parents specified that they were appealing from the court’s adjudication order; they did not specify that they also wanted to appeal from the court’s interim shelter order, but parties are not required to include such specification in the notice of appeal. See Wilson v. Sanders, 2019 UT App 126, ¶ 28, 447 P.3d 1240 (“The language of rule 3(d) [of the Utah Rules of Appellate Procedure] does not require a party appealing from an entire final judgment to specify each interlocutory order of which the appellant seeks review.” (quotation simplified)), cert. denied, 456 P.3d 388 (Utah 2019). Parents then indicated in their appellate petition, filed a few months later, that they were challenging not only the adjudication order but also the interlocutory shelter order.

¶55 Thus, Parents took all the right steps to appeal the juvenile court’s shelter order. Such orders are not immediately appealable as of right, but a challenge to such orders may be included in any appeal from the next subsequently entered final order. Parents properly included their challenge to the shelter order in their appeal from the next final order entered by the juvenile court: the adjudication order.

B. Parents’ Challenge to the Shelter Order

¶56 Having concluded that Parents have properly mounted an appeal from the juvenile court’s shelter order, we proceed to consider the merits of Parents’ appellate challenge. In this case, Parents raise a very specific objection to the shelter order. They assert that the court did not properly address two of the required components of the statutorily mandated removal analysis:

“whether reasonable efforts were made to prevent or eliminate the need for removal,” and (2) “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). In considering the merits of Parents’ challenge, we first conclude that the juvenile court did indeed err in its application of the shelter statute. In a separate section, we then discuss the appropriate remedy in this situation.

1

¶57 Utah law requires juvenile courts, before removing a child from a parent’s home, to make several specific findings. At issue here are the requirements of subsection 10(a) of the shelter statute. That subsection states, in relevant part, as follows:

(i) The juvenile court shall make a determination on the record as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from the child’s home and whether there are available services that would prevent the need for continued removal.

(ii) If the juvenile court finds that the child can be safely returned to the custody of the child’s parent or guardian through the provision of the services described in Subsection 10(a)(i), the juvenile court shall place the child with the child’s parent or guardian and order that the services be provided by [DCFS].

Id. § 80-3-301(10)(a).

¶58 Thus, this statutory provision requires juvenile courts to make, “on the record,” two separate but related determinations. See id. § 80-3-301(10)(a)(i). The first one is a backward-looking inquiry that asks whether, prior to removal, DCFS has made “reasonable efforts” to “prevent or eliminate the need for removal.” Id. However, if DCFS’s “first contact with the family occurred during an emergency situation in which the child could not safely remain at home,” the juvenile court need not engage in a traditional reasonable-efforts analysis but, instead, “shall make a finding that any lack of preplacement preventive efforts . . . was appropriate.” Id. § 80-3-301(11).

¶59 The second—and related—determination requires analysis of “whether there are available services that would prevent the need for continued removal.” Id. § 80-3-301(10)(a)(i). As we understand it, this inquiry is different from the reasonable-efforts analysis, in that it looks forward rather than backward. As relevant here, the question is not whether reasonable efforts have been made in the past, but whether services are available, going forward, that could “prevent the need for continued removal.” Id.

¶60 With regard to the first part of this inquiry, the court in its oral ruling offered its view that “emergency circumstances did exist” at the time of removal “which absolved [DCFS] of the need to provide reasonable efforts.” And in its later written order, it found that, “because an emergency situation and aggravated circumstances existed at the time of removal, and the [C]hildren could not safely remain in [Parents’] home, any lack of pre- placement preventative efforts was appropriate and justified.”[4]

¶61 Parents assert that this analysis was erroneous because the “emergency” exception that absolves DCFS from making reasonable pre-removal efforts to prevent removal applies only in cases in which DCFS’s “first contact with the family occurred during an emergency situation,” see id. § 80-3-301(11) (emphasis added), a situation not applicable here. The State advances a broader interpretation of this statutory exception, but in our view Parents’ interpretation is the correct one.

¶62 The State agrees with Parents that, in situations in which DCFS’s first contact with the family is in an emergency situation, the statute requires the court to make a finding that any lack of reasonable efforts was appropriate. See id. But it asserts that this provision does not prevent a court from “mak[ing] a finding of exigency in any case where [DCFS] has already been working with the parents,” and it posits that a juvenile court has the authority to dispense with the pre-removal reasonable-efforts inquiry anytime it believes the situation is emergent. We disagree.

¶63 The previous subsection requires that a pre-removal reasonable-efforts finding be made. See id. § 80-3-301(10)(a)(i). There are no exceptions built into this subsection. To be sure, there is an exception built into the next statutory subsection, but that provision, on its face, applies only to situations in which DCFS’s first encounter with the family occurred in an emergency situation. We decline the State’s invitation to read a broader emergency exception into the statute. See St. Jeor v. Kerr Corp., 2015 UT 49, ¶ 13, 353 P.3d 137 (“[W]e will not read additional limitations into [a rule] that the language cannot bear.”); Greene v. Utah Transit Auth., 2001 UT 109, ¶ 15, 37 P.3d 1156 (“[W]e will not disturb explicit legislative requirements and read into the statute an actual notice exception.”). We conclude that subsections (10) and (11) of the shelter statute, when read together, contemplate an exception to the reasonable-efforts requirement that is applicable only when DCFS’s first encounter with the family occurs during an emergency situation.[5]

¶64   That narrow exception is not applicable here. DCFS was first notified of potential problems with the Children in August 2022, some three months before removal. Between DCFS’s first notification (in August) and removal (in November), DCFS assigned caseworkers to the family, and those caseworkers made at least ten visits to Parents’ home. This is simply not a situation in which DCFS’s “first contact with the family” occurred in an emergency situation, and therefore the “emergency” exception to the reasonable-efforts inquiry does not apply here. The juvenile court therefore erred in applying that exception in this case, and it should have proceeded, at the shelter hearing, to consider whether DCFS had made reasonable pre-removal efforts to avoid taking the Children out of Parents’ home.

¶65   The juvenile court’s error in this regard, however, appears to have been rendered moot by the court’s later finding, made after the adjudication trial, that DCFS had “made reasonable efforts to prevent the removal of the [C]hildren, but those efforts were unsuccessful.” While Parents complain that the court did not undertake this analysis after the shelter hearing, they do not make any effort to challenge the finding that the court eventually made just two months later after the adjudication trial. Under these circumstances, any error the court made by relying on the emergency exception at the shelter hearing, and by failing to make a “reasonable efforts” finding at that time, has been rendered inconsequential by the court’s later unchallenged finding that DCFS had indeed made reasonable efforts to prevent removal.

¶66 We turn now to the second part of the inquiry, the part that requires the court to determine, on a going-forward basis, “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). In this vein, the court stated, in its written order, as follows:

If, at some point, there is a plan in place and [Parents] have shown the ability to take into consideration the current medical condition of the [C]hildren, and have shown the ability to work with the professionals providing that care for the [C]hildren, the [c]ourt would re-consider whether ongoing and continued removal would be necessary.

This comment indicates that the court was of course aware that services do exist—such as physical, speech, and occupational therapy for the Children and medical education and in-home health care assistance for Parents—that are designed to improve situations like the one presented here. And it indicates that the court was making an effort to apply the second part of the statutory analysis.[6] But the court, in its analysis, did not take the next analytical step and assess whether specific services could be provided to the family, in that moment and going forward, that might obviate the need for removal. See id. Simply stating that, at some point in the future, the court might reconsider its removal order is not sufficient; indeed, in most child welfare cases, the initial permanency goal is reunification, and juvenile courts nearly always stand ready to reconsider removal orders in appropriate cases. The shelter statute requires a more exacting analysis prior to removal, and the court’s failure here to ask and answer the correct statutory question was error.

¶67 And unlike the court’s error regarding the backward- looking reasonable-efforts determination, this error was not later remedied by later findings made after the adjudication trial. The State points to no similar finding made after the trial, and we are aware of none.

¶68 We therefore conclude that the juvenile court made two errors in its attempt to comply with the shelter hearing statute. First, it misapplied the “emergency” exception to its obligation to make a backward-looking reasonable-efforts determination at the shelter hearing. Second, it failed to make a specific forward- looking determination about whether services could be provided to the family that would serve to obviate the need for removal. The first error was rendered inconsequential by later findings. But the second one wasn’t, and we must therefore consider what the proper remedy is, in this situation, to address the court’s error.

¶69 Before doing so, we take the opportunity to emphasize the importance of completing the proper statutory analysis at the shelter hearing. While such hearings take place early in the case and are generally not comprehensive trials, they can assume a position of great importance in the arc of a child welfare case. To be sure, removal orders are temporary nonfinal orders that can be—and in many cases are, see, e.g.In re M.S., 2023 UT App 74,

¶¶ 2–21, 533 P.3d 859 (considering a situation where a child was placed back into the parent’s home at a later hearing, after initial removal)—amended or modified, but removal orders nevertheless memorialize a seminal moment in a child welfare case. Such cases often proceed much differently after the shelter hearing depending on whether the child was (or was not) removed. It is therefore vital that courts undertake the analysis required by the shelter statute, and that, before removal, they engage with both the backward-looking reasonable-efforts analysis as well as the forward-looking services analysis.

¶70 The importance of getting shelter hearings right the first time is highlighted by the difficulty of putting the removal genie back in the proverbial bottle. As this case illustrates, by the time appellate review of a shelter order can take place, the family’s situation will often look much different than it did at the shelter hearing. While post-adjudication events are not part of the record submitted to us on appeal, we are nevertheless aware that, while    this appeal has been pending, significant events have taken place that might affect the way the juvenile court analyzes the question of whether services are available that could obviate the need for continued removal. For instance, we are aware that criminal child abuse charges have been filed against Parents. In addition, we are aware that, since the adjudication hearing, Parents have received certain services, and the court has had the opportunity—at a permanency hearing held in January 2024—to assess the efficacy of those services. And there have doubtless been other developments that have occurred in the previous sixteen months of which we are appropriately unaware.

¶71 In this case, by way of remedy, Parents ask us to vacate the initial removal order and remand the case so that the juvenile court can conduct an entirely new shelter hearing. We do not view this as an unreasonable request; indeed, when an error is made at a hearing, a common remedy is to remand the case for the court to conduct a new hearing. But even though we do not view Parents’ request as unreasonable, in this situation the request is not entirely practical. After all, the situation is much different now from what it was in November 2022, and in cases involving children, our usual remand instructions include an admonition to the court to conduct any new hearing, on remand, in present-tense fashion, as of the date of the renewed hearing, taking into account all that has happened in the child’s situation since. See In re   Z.C.W., 2021 UT App 98, ¶ 12, 500 P.3d 94.

¶72 Under the circumstances, we agree with Parents that the juvenile court’s error cannot go entirely unremedied, and that the case should therefore be remanded so that the juvenile court can complete the analysis required by the shelter statute and, in particular, consider “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). But this inquiry should not be undertaken as of the date of the initial shelter hearing; instead, this inquiry should, on remand, be conducted in present-tense fashion, taking into account all relevant existing developments. See In re Z.C.W., 2021 UT App 98, ¶ 12.[7] Moreover, we offer no specific instruction to the juvenile court as to whether, and to what extent, it must hold an evidentiary hearing on remand; we conclude only that the court must properly complete the required statutory analysis and that it “must—in some manner—consider and appropriately deal with proffered new evidence.” See id. ¶ 15. And we do not, in this opinion, order that the removal order be vacated; the juvenile court may order that relief, if it deems such relief appropriate, only after completing its analysis on remand.

¶73     Finally, we wish to make clear that we harbor no opinion as to how the juvenile court’s renewed analysis should come out; given the realities of chronology, the juvenile court (conducting a present-tense analysis) will have a lot more information than we do now, on this record, about how the Children are doing and how Parents have responded to the situation during the period between the shelter hearing and the permanency hearing. It may well be that the court reaches the same result, after conducting a more complete shelter analysis, that it reached at the permanency hearing in January 2024. On the other hand, it may be that the court, after conducting the proper shelter analysis, finds it appropriate to vacate or amend one or more of its previous orders. But either way, it is important that courts conducting shelter hearings, before they take the rather drastic step of removing children from a parent’s home, follow the requirements of the shelter statute. We remand the matter so that these requirements may be satisfied in this case, albeit belatedly.

CONCLUSION

¶74 We discern no error in the juvenile court’s determination that, based on the condition of the Children upon removal, the Children were neglected by both Parents. And we reject Parents’ assertion that their attorneys rendered ineffective assistance during the adjudication process.

¶75 However, we conclude that the juvenile court did not conduct the proper statutory analysis at the initial shelter hearing. We therefore remand this case to the juvenile court so that it can complete the required analysis and assess, in present-tense fashion, whether there are services available that can prevent the need for continued removal.

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


[1] For readability, we use pseudonyms (rather than initials) to      refer to the Children.

[2] In its reports regarding the Children, the PCMC team stated that “medical child abuse” is “a form of child maltreatment characterized by the fabrication or exaggeration of medical history, symptoms, and even exam findings and/or the induction of symptoms by a caregiver.” Medical child abuse “occurs when a child receives unnecessary and harmful or potentially harmful medical care at the instigation of the caregiver,” and it “results in manipulation of the medical system leading to child maltreatment in the form of unnecessary medical examinations, diagnostic [2]testing . . . , imaging, and invasive procedures.” Medical child abuse, in the past, was called “Münchausen syndrome by proxy.”

[3] Parties can, of course, request permission to appeal any interlocutory order (including shelter orders) under rule 5 of the [3]Utah Rules of Appellate Procedure. But parties are not required to seek review under rule 5, and such review is in any event completely discretionary with the appellate court. See Utah R. App. P. 5(a), (g). In this case, Parents did not seek permission to appeal the shelter order under rule 5, but this fact does not affect their ability to later appeal the shelter order following the eventual entry of a final order. See State v. Troyer, 866 P.2d 528, 530 (Utah 1993) (stating that “the scope of appellate review from a final judgment” is not “in any way affected or limited by the possibility that any one or more of the trial court’s rulings might have formed the basis of a petition for an interlocutory appeal”); see also In re S.F., 2012 UT App 10, ¶ 28, 268 P.3d 831 (stating that the fact that a parent “could have elected to petition for interlocutory appeal” from an earlier nonfinal order “does not eliminate our authority to review” the earlier order “once the neglect and termination proceedings were completed and an appeal timely filed”), cert. denied, 280 P.3d 421 (Utah 2012).

[4] There are other statutory provisions that, in specific cases, may operate to excuse or render irrelevant any lack of pre-removal reasonable efforts. See, e.g., Utah Code § 80-2a-201(6) (stating that, “in cases where sexual abuse, sexual exploitation, abandonment, severe abuse, or severe neglect are involved, the state has no duty to make reasonable efforts or to . . . maintain a child in the child’s home”); id. § 80-2a-302(4) (same); id. § 80-3-301(12) (same). No party asserts that any of these other Utah statutes are applicable here. In a supplemental authority letter submitted to us after oral argument, however, the guardian ad litem (GAL) asserts—for the first time—that the juvenile court’s allusion to “aggravated circumstances” was an implicit effort to resort to a provision of federal law, which provides that “reasonable efforts . . . shall not be required . . . if a court of competent jurisdiction has determined that the parent has subjected the child to aggravated circumstances.” 42 U.S.C. § 671(a)(15)(D)(i). As an initial matter, we note that parties may not raise new legal theories in post- argument supplemental authority letters. Cf. State v. Seat, 2022 UT App 143, ¶ 39 n.4, 523 P.3d 724 (stating that parties are “not permitted to raise a new question for the first time at oral argument” before this court). But more substantively, the GAL’s argument fails on its face; even if we assume, for purposes of the discussion, that the juvenile court’s comment was actually a reference to a federal statutory exception to the reasonable-efforts requirements, resort to the federal statute is unhelpful here because, at the time of the shelter hearing, no “court of competent [4]jurisdiction” had made any determination that Parents had done anything wrong.

[5] We can certainly envision policy concerns that might support a broader exception to the reasonable-efforts requirement that could apply in any emergency situation, regardless of whether DCFS had already been working with the affected family. We note here, as we sometimes do, that our legislature is free to amend the statute if it believes we have misinterpreted legislative intent.

[6] On this basis, we reject the State’s assertion, also advanced by the GAL, that Parents failed to preserve any objection to the court’s application of the shelter statute. Our supreme court has made clear that there is no preservation problem where the trial court “not only had an opportunity to rule on the issue . . . but in [6]fact did rule on it.” See Fort Pierce Indus. Park Phases II, III & IV Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218 (quotation simplified).

[7] In In re Z.C.W., 2021 UT App 98, 500 P.3d 94, our instruction that the renewed hearing be conducted, on remand, in present- tense fashion was a function of the applicable statute using a present-tense locution. See id. ¶ 13 (interpreting a statute requiring juvenile courts to assess “whether termination is in the best interest of the child” (quotation simplified)). The statute at issue here also uses a present-tense locution. See Utah Code § 80-3- [7]301(10)(a)(i) (requiring assessment of “whether there are available services that would prevent the need for continued removal” (emphasis added)). We therefore conclude that, in this situation, a present-tense perspective is required on remand.

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I Am Going through a Custody Battle and the Other Parent Is Making False Statements About Me in Court. What Can I Do to Protect Myself and My Child?

If you want just my direct answer to this question, skip to the last paragraph, but I submit that you’ll have a much better understanding of the answer if you read all of this first.

This is and has been a major, serious problem in family law for as long as I can remember. It’s not getting better. It victimizes far too many innocent people who naively trust the legal system to value truth and justice above all.

Guilt by accusation. Accuse your spouse of being an abusive parent, and immediately the accused finds himself or herself in a position of guilty until proven innocent.

Judges (and that includes the domestic relations commissioner) are, with due respect to them, quite often (so often; more often than you’d expect or hope, frankly) suckers for substituting and accepting the seriousness of the allegations over the substance of the evidence. Why?

Many people innately know, but struggle to articulate it, either because it’s subconscious or too shameful to admit: the cowardly, lazy allure of “better safe than sorry” and “abundance of caution”. “Treat all allegations of spousal or child abuse as true,” so the “reasoning” goes, “and that way we prevent abuse, whether real or imagined.” Why go to all the trouble of investigating, factfinding, and truth seeking when abusers might lie and get away with it? No, better to treat pretty much every abuse claim as true. And if innocent parents (mostly men, but a fair and growing number of women too) are the victims of such a policy (ruined reputations, loss of standing in the community, loss of friends, loss of employment, being persecuted), it’s a price worth paying (especially when the judges and commissioners themselves don’t pay that price themselves) “if it saves just one life.” It’s obvious nonsense (no judge who treats people this way would ever want to be treated that way), but that is culture of the modern legal system. I wish I could deny it, but I’d be lying, if I did.

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.

But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

― John Adams

When it comes to accusations of abuse (or even danger of being abusive), it’s terrifyingly far too often the opposite of the “Better that a hundred guilty men go free than to convict one innocent man.”

So, if you are being falsely accused, don’t rely on “I can’t prove a negative,” “accuser has the burden of proof,” or “innocent until proven guilty.” If you can prove you’re innocent, do it. Do everything in your power to prove your innocence. Spend the money and the time and the effort to fight for and to prove your innocence. Strive to hold the courts to being competent and impartial because when it comes to allegations of spousal or child abuse, many courts will not exercise the courage to dismiss such claims for a lack of proof.

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

(65) Eric Johnson’s answer to I am going through a custody battle and the other parent is making false statements about me in court. What can I do to protect myself and my child? – Quora

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2024 UT App 28 – Smith v. Smith

2024 UT App 28 – Smith v. Smith

THE UTAH COURT OF APPEALS

JACQUELINE P. SMITH, Appellee,  v. DANIEL H. SMITH, Appellant.

Opinion

No. 20220697-CA  Filed March 7, 2024  Third District Court, Salt Lake Department  The Honorable Robert P. Faust  No. 194902295

David Pedrazas, Attorney for Appellant

Deborah L. Bulkeley, Attorney for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

OLIVER, Judge:

¶1        This divorce case illustrates why the sequence of determining alimony matters. We recently clarified the three-step procedure for alimony in Fox v. Fox, 2022 UT App 88, 515 P.3d 481, cert. denied, 525 P.3d 1263 (Utah 2022). Here, the district court ordered an alimony award of more than double the receiving spouse’s demonstrated need because it accounted for the marital standard of living at the end of the analysis instead of at the beginning. Because the district court employed a backward version of the three-step procedure for alimony, we vacate and remand.

BACKGROUND

¶2        Daniel H. and Jacqueline P. Smith separated after more than thirty years of marriage. Their divorce case proceeded to a one-day bench trial that mostly addressed alimony. Daniel[1] represented himself at trial. At the trial’s conclusion, the district court took several issues, including the alimony award, under advisement and issued a memorandum decision four days later.

¶3        On her financial declaration used at trial, Jacqueline indicated her monthly net income was $3,274.55 and her monthly expenses were $5,193.79. Jacqueline listed all her line-item expenses in the “current amount” column and left the “marital expenses” column blank. Jacqueline presented no evidence at trial of the parties’ marital standard of living and no evidence that any of her listed expenses were different during the marriage than they were at the time of trial. She testified only to the reasons she sought a divorce. The district court examined the expenses and adjusted some of the amounts, finding that Jacqueline had reasonable monthly expenses of $4,184.61. This left her with an unmet need of $910.06 per month.

¶4        Daniel’s financial declaration admitted at trial indicated his monthly net income was $7,757 and his monthly expenses—all listed in the “current amount” column and none in the “marital expenses” column—were $8,280. The district court similarly examined Daniel’s expenses and made adjustments, finding that Daniel had reasonable monthly expenses of $4,013.90 plus his child support obligation of $703 for a total monthly expense of $4,716.90, leaving him with a “positive income of $3,040.10 a month.”

¶5      The district court stated that it adjusted the parties’ expenses in “an effort to put them on relatively equal footing, recognizing that the parties’ level of expenses at the time of trial are not representative of their marital standard of living.” Rather than award Jacqueline alimony in the amount of her unmet need, the district court calculated alimony by equalizing the difference between Jacqueline’s monthly negative income and Daniel’s monthly positive income. The court reasoned that “it is fair and equitable to equalize the combined disparity of $3,950.16 per month” and awarded Jacqueline $1,975 per month in alimony. The alimony award exceeded Jacqueline’s demonstrated monthly need by $1,064.94.

¶6        The district court instructed Jacqueline’s counsel to draft proposed findings and a proposed decree based on the court’s ruling. Daniel, having obtained counsel since trial, objected to the proposed findings on multiple issues, including the alimony calculation. The district court entered the findings and decree without making any changes to the alimony award.

¶7        Daniel then filed a motion to amend the findings, arguing that the district court did not make sufficient findings to support an alimony award that exceeded Jacqueline’s demonstrated need. The district court held a hearing on the motion, and Daniel asked the court to “recalculate and redetermine the alimony” because a “spouse’s demonstrated need must constitute the maximum permissible alimony award.” The court explained the $1,975 alimony award “equalizes the net income of the parties for both of them. That keeps them akin as we can to the lifestyle to which they were accustomed during the time of the marriage.” Daniel asserted that equalization should occur only “when somebody has an excess need that the other party can’t meet.” And Jacqueline suggested the court make “some additional findings” to support what she viewed as its “appropriate” effort to consider the parties’ needs and “augment those needs with excess income.” The district court denied Daniel’s motion, leaving the alimony award at $1,975 per month.

ISSUE AND STANDARD OF REVIEW

¶8        Daniel challenges the district court’s alimony award.[2] “We review a court’s alimony determination for an abuse of discretion.” Fox v. Fox, 2022 UT App 88, ¶ 11, 515 P.3d 481 (cleaned up), cert. denied, 525 P.3d 1263 (Utah 2022). Although “we will not lightly disturb a trial court’s alimony ruling, we will reverse if the court has not exercised its discretion within the bounds and under the standards we have set.” Knight v. Knight, 2023 UT App 86, ¶ 17, 538 P.3d 601 (cleaned up).

ANALYSIS

¶9        “Under Utah law, the primary purposes of alimony are: (1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.” Fox v. Fox, 2022 UT App 88, ¶ 15, 515 P.3d 481 (cleaned up), cert. denied, 525 P.3d 1263 (Utah 2022). An alimony award need not provide “for only basic needs but should be fashioned” in such a way “to approximate the parties’ standard of living during the marriage as closely as possible.” Id. (cleaned up). “The appropriate amount of any alimony award is governed by a multi-factor inquiry” now found in Utah Code section 30-3-5(10)(a). Miner v. Miner, 2021 UT App 77, ¶ 16, 496 P.3d 242. “[C]ourts must consider the statutory factors,” including “the financial condition and needs of the recipient spouse,” “the recipient’s earning capacity,” and “the ability of the payor spouse to provide support.” Rule v. Rule, 2017 UT App 137, ¶ 13, 402 P.3d 153; see also Dahl v. Dahl, 2015 UT 79, ¶ 94, 459 P.3d 276.

¶10      Thus, there are three steps to “the established process to be followed by courts considering an award of alimony.” Fox, 2022 UT App 88, ¶ 20 (cleaned up); see also Rule, 2017 UT App 137, ¶ 19. First, a court must “assess the needs of the parties, in light of their marital standard of living.”[3] Fox, 2022 UT App 88, ¶ 20 (cleaned up). Second, a court “must determine the extent to which the receiving spouse is able to meet his or her own needs with his or her own income.” Id. (cleaned up). Third, a court must “assess whether the payor spouse’s income, after meeting his or her needs, is sufficient to make up some or all of the shortfall between the receiving spouse’s needs and income.” Id. (cleaned up).

¶11      Here, the district court abused its discretion when it failed to properly follow this three-step process. Instead of considering the marital standard of living at step one when calculating each spouse’s need, the district court did so at step three, when it equalized the parties’ income. While we do not fault the court for wanting to “equalize the standards of living of each party,” as it is one of the purposes of alimony, see id. ¶ 15 (cleaned up), the court did not do so in accordance with the standards Utah appellate courts have established for an alimony determination.

¶12      In step one, the district court assessed both parties’ needs “at the time of trial” rather than in light of the marital standard of living. See id. ¶ 20. But it was not an abuse of discretion to have done so because neither Jacqueline nor Daniel provided any evidence of the marital standard of living. Indeed, both of their financial declarations listed their monthly expenses in the “current amount” column with nothing listed in the “marital expenses” column, despite the instructions on the form to complete both columns if one of the parties has requested alimony. It is incumbent upon the parties to present evidence of the marital standard of living if they want the district court to consider the expenses during the marriage that differ from the expenses at the time of trial. See Clarke v. Clarke, 2023 UT App 160, ¶ 62 (“If a party offers into evidence only time-of-trial expense amounts, and does not provide the court with any evidence of pre-separation expenses (to the extent they are different), that party has no right to complain when the court awards the time-of-trial amounts.”). And it is important that they provide such evidence, because step one—where the district court determines the parties’ reasonable expenses—is the place for taking the marital standard of living into account in the alimony calculation.

¶13      In step three, the district court then combined Jacqueline’s demonstrated need of $910.06 and David’s excess income of $3,040.10, “equalize[d] the combined disparity of $3,950.16,” and gave Jacqueline an alimony award of half that amount, $1,975. Daniel contends the district court should have capped the alimony award at the $910.06 monthly shortfall the district court calculated as the difference between Jacqueline’s income and her expenses. We agree with Daniel. “Regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378 (cleaned up); Rule, 2017 UT App 137, ¶ 17 (“The receiving spouse’s needs ultimately set the bounds for the maximum permissible alimony award.”); Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d 994 (“An alimony award in excess of the recipient’s need is a basis for remand even when the payor spouse has the ability to pay.”); Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994) (“[T]he spouse’s demonstrated need must . . . constitute the maximum permissible alimony award.”). Thus, the district court abused its discretion when it awarded Jacqueline alimony in an amount greater than her demonstrated need.

¶14 We also caution district courts that they “should not calculate alimony by simply dividing the couple’s pre-separation expenses in half,” Clarke, 2023 UT App 160, ¶ 57, or by “presumptively award[ing]” half of the “total money the parties spent each month during the marriage,” Fox, 2022 UT App 88, ¶ 25. In other words, the proper way to take the marital standard of living into account is at step one “by assessing a party’s claimed line-item expenses in light of that standard.” Clarke, 2023 UT App 160, ¶ 59.

¶15      Here, the district court abused its discretion at step three when it took the parties’ “combined disparity of $3,950.16” per month and awarded half of that amount to Jacqueline. Regardless of how much income the payor spouse may have, the purpose of alimony is to meet the demonstrated need of the recipient spouse, not to redistribute all the income between the spouses. See Roberts, 2014 UT App 211, ¶ 14 (“[T]he core function of alimony is therefore economic—it should not operate as a penalty against the payor nor a reward to the recipient.”). And although “we accord trial courts broad discretion in dividing the shortfall and apportioning that burden” in the third step, such discretion is premised on the assumption the court “has properly determined that a shortfall exists between the parties’ resources and needs.” Rule, 2017 UT App 137, ¶ 21.

¶16 Sequence matters. See id. ¶ 22 (“Once the court has determined that there are insufficient resources to meet the baseline needs established by the marital living standard, the court should then equitably allocate the burden of the shortfall between the parties.” (emphases added)); see also Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 12, 80 P.3d 153 (holding that “attempting to equalize the parties’ income rather than going through the traditional needs analysis” constitutes an abuse of discretion). Just as it is an abuse of discretion to “skip[] over the traditional needs analysis and move[] directly to address what it perceives to be insufficient resources,” see Rule, 2017 UT App 137, ¶ 23, it was an abuse of discretion here when the district court used the marital standard of living at step three to increase the amount of the alimony award beyond the demonstrated need.

¶17      As a final note, we reiterate that it is proper for a district court to consider the marital standard of living during step one of the alimony analysis, so long as the parties have presented such evidence. We would normally vacate the alimony award and remand the matter to the district court “for the court to reassess its alimony determinations in light of the marital standard of living.” Id. ¶ 32. But here, neither party presented evidence of their expenses during the marriage. Indeed, they both left the “marital expenses” column on their financial declarations blank. As a result, there is no evidence in the record from which the district court can make findings that Jacqueline’s expenses were different from what she listed. Thus, the district court’s finding that her demonstrated need was $910.06 limits “the maximum permissible alimony award” to that amount. See Wellman v. Kawasaki, 2023 UT App 11, ¶ 12, 525 P.3d 139.

CONCLUSION

¶18      The district court abused its discretion when it employed the incorrect analysis in computing Jacqueline’s alimony award. The court did not follow the three-step process required by Utah law. Accordingly, we vacate and remand the case to the district court for entry of an alimony award of $910.06 per month.

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


[1] Because the parties share the same last name, we refer to them by their first names for clarity, with no disrespect intended.

[2] Daniel also challenges the district court’s denial of his motion to amend the findings. But we need not reach this issue because we conclude the district court did not follow “the standards we have set” in its alimony calculation, see Knight v. Knight, 2023 UT App 86, ¶ 17, 538 P.3d 601 (cleaned up), and we remand the case on that basis.

[3] “The marital standard of living is that which the parties shared, and courts consider the parties as a single unit when evaluating that standard.” Knight, 2023 UT App 86, ¶ 32. In terms of alimony, “the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions.” Id. (cleaned up).

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In re H.H. – 2024 UT App 25 – termination of parental rights

In re H.H. – 2024 UT App 25

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF H.H. AND N.H.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

T.H. AND D.H., Appellants, v.  STATE OF UTAH,  Appellee.

Opinion

Nos. 20220803-CA and

20220820-CA

Filed February 29, 2024

Second District Juvenile Court, Farmington Department

The Honorable Jeffrey J. Noland

Nos. 1163279 and 1163280

Scott L. Wiggins, Attorney for Appellant T.H.

Emily Adams, Sara Pfrommer,

Hannah Leavitt-Howell, Marjorie Christensen, and

Melissa Jo Townsend, Attorneys for Appellant D.H.

Sean D. Reyes, Carol L.C. Verdoia, and

John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY

concurred.

HARRIS, Judge:

¶1        After a lengthy bench trial, the juvenile court found grounds to terminate the parental rights of D.H. (Father) and T.H. (Mother) (collectively, Parents) regarding their two youngest children, H.H. (Hannah) and N.H. (Noah).[1] The court found that Father was an unfit parent because he had subjected four of his children, including Hannah and Noah, to “serious emotional abuse,” inflicted through a strict and intimidating parenting style, that “resulted in two of the children considering suicide as an option to end the maltreatment.” As to Mother, the court found that her continued support of Father rendered her incapable of “exercising proper parental care.”

¶2        In its initial post-trial ruling, the court determined that it was in Hannah’s and Noah’s best interest for Father’s parental rights to be terminated, but that it was not in their best interest for Mother’s rights to be terminated. Instead, the court imposed a permanent guardianship arrangement in favor of an adult sibling (Oldest Sister). Later, however, after the guardian ad litem (the GAL) filed a motion for reconsideration, the court amended its initial ruling and ordered Mother’s rights terminated as well.

¶3        In separate appeals that we consider together in this opinion, Parents challenge the termination of their parental rights on several grounds, asserting chiefly that the “juvenile court process” that led to termination violated their constitutional rights and that the court erred in concluding that termination of their parental rights was strictly necessary. For the reasons that follow, we reject all of Parents’ arguments and affirm the court’s termination order.

BACKGROUND[2]

The Family Situation and the Initial Removal

¶4        Parents are the natural parents of six children: four daughters and two sons. By the time this case was initiated in 2018, the two oldest children (Oldest Sister and Older Brother) had reached adulthood and were living on their own. Some years earlier, when she turned eighteen but while she was still in high school, Oldest Sister moved out of Parents’ home because, in her view, Parents had created “a very horrible living situation” that left her “scared to go home.” In 2013, when Older Brother was seventeen and a junior in high school, he also elected, for apparently similar reasons, to move out of the family home; at that point, he moved in with Oldest Sister—who is some nine years older than Older Brother—and her husband (Brother-in-Law). The four younger children—Chloe, Felicity,[3] Hannah, and Noah—all still lived with Parents.

¶5        In May 2018, Utah’s Division of Child and Family Services (DCFS) received a report that Chloe—who was fifteen at the time—had confided to a teacher that her home life was so unbearable that she was considering suicide, on a “constant basis,” as a means of escape. As Chloe described it, Parents were constantly screaming and fighting and taking their anger out on the children. Physical violence, both real and threatened, and verbal abuse were tools that Parents—especially Father— frequently used against the children. Father also forced the children to do seemingly endless chores, and he required them to pay him for basic amenities like fresh food (as opposed to “expired” food storage), computer usage, and rides to school. Chloe told a DCFS caseworker that she was suicidal because “she couldn’t handle being home alone with [Father] all summer.”

¶6        Spurred by the report it received about Chloe’s suicidal ideations, DCFS conducted an investigation during the summer of 2018. Among other things, it administered a “suicide severity” test to Chloe and concluded that Chloe scored “very high.” When DCFS reported this score to Parents, they “both scoffed” and responded that Chloe was a “drama queen” who was “just trying to get attention.” At the end of the investigation, DCFS made a supported finding of “emotional maltreatment” against Parents and offered them “voluntary services” to assist them in improving the situation. DCFS also spoke with Oldest Sister, who was familiar with the family dynamics and the living situation at Parents’ home. Oldest Sister committed to keeping an eye on her siblings and promised to notify DCFS “if the situation escalated.”

¶7        DCFS then notified Parents, by letter, of its “emotional maltreatment” finding. When Parents received this letter, they became “enraged” and responded by “blam[ing] the children” and acting “very vindictive” toward them. In particular, Parents warned the children that, “if they were to speak with authority figures,” including “church leaders” or anyone at DCFS, about events occurring in the home, they would be “severely punished.”

¶8        Notwithstanding this warning, in August 2018 the three younger daughters—Chloe, Felicity (then fourteen), and Hannah (then twelve)—sought guidance from one of their church “young women” leaders (YW Leader). The family—including Parents as well as all six of their children—are practicing members of The Church of Jesus Christ of Latter-day Saints, a church that has relatively structured youth programs with local lay leaders

assigned to provide supervision and guidance. Both YW Leader and the president of the family’s local church unit (Branch President) had counseled the girls—without Parents’ knowledge—to “contact one of [them] if things got too bad at home and they needed an escape or someone to talk to.” When the girls sought YW Leader’s advice, she brought them in to meet with Branch President in his office at the local church.

¶9        As the meeting between the girls and Branch President was nearing its end, Father—having gotten wind of the meeting— appeared at the church; Branch President observed that Father was very upset and “quite agitated,” and Father demanded “to know what [the girls] were doing at the church.” Father “backed [the] girls into a corner” of Branch President’s office and “started angrily interrogating them” and “berating them in a loud, almost yelling tone” before then “turn[ing] on” YW Leader when she tried to intervene. The girls began “sobbing and begging him to stop.” Branch President, perceiving that the girls “were terrified,” also asked Father to stop, telling him that his behavior was “inappropriate.” Father then “angrily” “turned on” Branch President, put a “finger in [his] face,” and accused Branch President of “trying to divide his family.” He also “unloaded on” Chloe, “telling her that she was nothing but a drama queen and that if she hadn’t been threatening suicide just to get attention” the family “wouldn’t be in this mess.” His verbal assault was so fierce that Chloe “threw up her arms in front of her face” in an effort to protect herself. YW Leader was “shocked and quite upset” and “couldn’t believe what she was seeing.” Eventually, Father left the building, and after the incident, Branch President decided to take a step he’d never before taken in his years as a religious leader: he wrote a four-page single-spaced letter to DCFS describing the situation generally, and the incident at the church specifically, offering his view that the “terror and anguish the girls are experiencing” are “real” and that the situation requires attention. He requested that DCFS reopen the family’s case and that, “at a minimum,” the girls “be given a chance to be evaluated by professional counselors.”

¶10      Over the next few days, the situation in the family home continued to deteriorate. During this time, Chloe continued to talk about suicide, and she did so even more seriously; Brother-in-Law reported that Chloe was now saying that she had “a plan” for committing suicide. And Brother-in-Law reported that Felicity, for the first time, was also talking about suicide, even going so far as saying “it was the only way to escape this life as she could no longer deal with it.” On at least one occasion during this time frame, Felicity contacted DCFS to provide additional information.

¶11      Also during this time period, Parents often “cornered” the girls at home, separated them into “different rooms,” and “interrogat[ed]” them for “several hours” about whether they were “sharing information with” DCFS and, if so, what they had shared. During these interrogations, Parents would scream and yell, would threaten to send the children “to juvey,” and would tell them that they would be responsible if the “family was destroyed” and that, in that event, the children would end up in “foster care” where they would likely “be beat[en] and raped.”

¶12 On August 29, 2018, the day after an especially long evening interrogation, Felicity and Hannah went to school— which had just begun for the year—but were so distraught when classes ended that they were afraid to return home, so they contacted Brother-in-Law and asked him to pick them up. When Brother-in-Law arrived at the school, he found the girls “cowering” in the front office and “shaking uncontrollably,” behavior Brother-in-Law considered uncharacteristic; they also would not “let go of each other’s hands.” Brother-in-Law later reported that Felicity was “panicked out of her mind to have to return home to the situation” there. Brother-in-Law took the girls to his house, and he contacted DCFS; he told the caseworker that he “didn’t feel comfortable letting them go home because” he was concerned they might “hurt themselves.”

¶13 The DCFS caseworker assigned to the case traveled to Oldest Sister’s house and spoke with the girls, and she determined that “the family situation had risen to a dangerous level.” At that point, DCFS “sought and received a warrant for the removal” of all four minor children “from the custody and guardianship” of Parents. Later that evening, Parents arrived at Oldest Sister’s house and were served with the removal warrant. DCFS officials, accompanied by law enforcement, informed Parents that the children had been removed from their home. The children were eventually officially placed with Oldest Sister and Brother-in-Law; Hannah and Noah have remained in that placement ever since, and Chloe and Felicity remained in that placement until they reached adulthood.

The State’s Petition and the Shelter Hearing

¶14      The next day, the State filed a petition asking the court to award custody and guardianship of the children to DCFS. In its petition, the State discussed the situation in the home and asserted that both Chloe and Felicity had been having “suicidal thoughts and ideations” as a result. The petition included allegations of the constant chores Father required the children to perform, as well as Father’s requirement that the children pay him for basic necessities. It also included detailed allegations of verbal abuse by Parents, asserting that they were “swearing and spitting” in the children’s faces, calling them “little shits” and “worthless,” and telling the girls in particular that they were “ugly” and that Parents “wishe[d]” they hadn’t been born. The State alleged that Father used physical force as part of his dominion over the children, often “push[ing]” them and “pull[ing] the back of their hair.” Mother would sometimes “threaten[] to kill herself” and then disappear, causing the children distress and creating “panic”as they wondered whether Mother might have followed through with her threats. The State requested that the children be placed “in the custody and guardianship” of DCFS and that any visitation between Parents and the children be at the direction of DCFS and in consultation with a guardian ad litem.

¶15 At a shelter hearing held a few days later, the court considered evidence by proffer from several witnesses, including Parents, the four minor children, Oldest Sister, Brother-in-Law, the DCFS caseworkers, and Branch President.[4] At the conclusion of the hearing, the court found that the children were “suffering emotional harm” and there was “nothing and no services” that could be “placed into the home to ameliorate the harm.” Accordingly, the court concluded that the children could “not be safely returned” to Parents and awarded temporary custody of the children to DCFS, with Parents to have supervised visitation. The court also appointed the GAL to represent the interests of the children, and it later appointed attorneys to represent Mother and Father, separately.

The Failure of Group Therapy

¶16 During the fall of 2018, the court held hearings in the case on nearly a weekly basis, as disputes arose over even rather basic things. For instance, the State wanted all four children to have a mental health assessment, but Parents objected; the court held a hearing and ordered that the evaluations take place and that Parents were not allowed to attend them. The evaluations eventually occurred, and the children began therapy—both individual and group therapy—with a counselor in October 2018. Some of the group therapy was designed to include Parents; indeed, the court ordered that, for Chloe and Felicity, all visitation “shall be therapeutic until further order of the court.”

¶17 At first, the children were reticent to even see Parents, much less participate in group therapy with them. The therapist facilitating the group therapy (Therapist) asked the children— prior to the appointments with Parents—if there were “things that [Therapist] could put into place” that would help them “feel comfortable” with the arrangement, and the children—“together as a collaborative process”—came up with a set of guidelines they thought would help. Among other things, the children asked that there be “no hugs” between them and Parents, “no talking about money,” and “no talking about religion” or “church stuff.” Therapist communicated these child-created guidelines to Parents on October 24, 2018, just prior to the first group therapy session.

¶18      Parents objected to these guidelines, especially the “no talking about religion” rule, and at a hearing held just over a month later, the court removed the “no talking about religion” rule but overruled Parents’ objections to the other rules. During the short time the “no talking about religion” rule was in place, however, Parents—and Father in particular—pointedly refused to abide by it; indeed, Therapist later testified that Father brought up religion in “nearly every visit.”

¶19 For instance, during one session between Father, Felicity, and Chloe, Therapist had to ask Father “seven times” to stop talking about religion. In previous sessions, Therapist had asked Father to focus on “listening” to the girls, because he “spoke so much” during the sessions that the girls typically did not “have the opportunity to share” their feelings. But in this session, and despite Therapist’s attempts to intervene, Father continued his behavior of dominating the discussion and refusing to listen to the girls’ concerns, explaining that “he had the power from God, that he had the power of the priesthood” and they did not, which gave him the right to direct all decisions for the family generally and for the girls specifically. At times physically standing up and towering over the girls, he told them that Brother-in-Law had no right to take decision-making power away from Father and that “God gave [Father] the right” to make decisions for the children as he saw fit. The girls reacted by “hiding” and “cover[ing]” themselves with pillows, and “scoot[ing] closer together” in solidarity. They appeared “very defeated” and “stopped talking”; Therapist observed that they “completely withdrew and shut down and were done having any interaction at that point.”

¶20      As time went on, and recognizing that no progress could be made as long as Father dominated the discussion during therapy, Therapist attempted to make future sessions more “child-focused.” During one session, Chloe and Felicity “started to express” how they often felt bullied by Father, and he responded by stating “that people who get bullied . . . are victims because they allow themselves to be.” He told the girls that it was “their fault” that they were being bullied and that he had done “nothing” wrong. In an effort to get through to Father, Therapist then attempted a “role reversal” technique whereby Felicity would portray Father and Father would portray Felicity; the purpose of this exercise was to give Father an “understanding of how his children felt when he lectured them.” Once Felicity (pretending to be Father) began her lecture, Father “started fighting back instantly.” Therapist informed Father that he was not “doing the role reversal the right way” because, as Father had already explained, “he expects complete compliance” from the children when he lectures. To fully engage with the role-reversal exercise, Therapist instructed Father “to sit there” and “listen” just as he expected his children to do for him. This instruction angered Father, who turned on Therapist, declaring that she should not be “allowing his children to bully him” and that she was “undermin[ing] his parenting skills.” He also accused Therapist of “taking away his religious rights” by engaging in this role reversal, offering his view that Therapist was attempting to indoctrinate the children with her “secular views.”

¶21      In another session, Therapist instructed the children to write down the details of some of the different traumas they had experienced. The plan was to then have each child share their thoughts and have Father “meet the child[ren] emotionally” and “validate” their feelings, and then have an opportunity to explain the intention behind his actions. As the children began to explain what they had written, Father interrupted and began to argue and “discredit” what the children were saying. Father, who was now on his feet, tried to take control of the session, reaching out to grab the papers from the children so he could read them and address them in the manner he saw fit. At this point, Felicity asked “for a two-minute break,” which Therapist agreed would be a good idea. Watching the children defer to Therapist for permission to leave the room further agitated Father. He began telling Therapist that he was the one “who gets to decide what his children do” and that Therapist does not “get to undermine him and his parental authority.” Therapist tried to explain that it was okay to take a brief break, given that things were “getting rough,” and she stated that if Felicity needed a break, she should be allowed to have one. Father disagreed, situating himself in the doorway and blocking the exit. Therapist tried to maneuver Felicity around Father while gathering the children’s papers, at which point Father began “lunging” at Therapist and trying to snatch the papers out of her hands. Therapist was forced to hold the papers behind her back, telling Father the documents belonged to the children and he was not permitted to take them. Father started yelling that these were “his kids” and he was therefore “entitled” to see whatever they wrote on the papers. He then turned his anger on the children, telling them “it was time for them to be punished and that they need[ed] to have their consequence.” At this point, Therapist determined that the session was over, and she began escorting the children to the reception area. Father was following close behind, continuing his tirade and informing Therapist “what [he was] going to do to [Therapist], what [he was] going to do to the caseworkers, [and] what he’s going to do to the kids.”[5]

¶22 After that point, the therapists who had been working with the family came to the collective conclusion that group therapy sessions were doing more harm than good. For one thing, the sessions were “unproductive”; Father had “made it very clear, from the beginning, that he didn’t think [therapy] was necessary” and that he did not need to be there because “nothing needed to change” and he “wasn’t going to make changes.” In addition, and perhaps more significantly, the therapists “no longer felt that it was safe to continue having family therapy sessions that included [Father].” In particular, Therapist wrote in a report that, “[t]herapeutically speaking,” it would “be detrimental to the children to continue family therapy” because it would only further “damag[e] their relationship[s].” She believed, however, that it was critical that individual therapy still continue.

¶23 Given the tenor of the group therapy sessions, the GAL filed a motion to suspend all visitation—even in a therapeutic setting—between Father and the children. Father objected to this request, and he took the opportunity to advance his own view of the group therapy sessions. In a filing he made with the court, Father opined that the children were “being coached and groomed in an attempt to avoid reunification with” Parents. Father believed he—as religious leader of the family—had a right to review all recordings of the children’s individual therapy sessions, and he took issue with Therapist’s refusal to provide him any such recordings. Father concluded his filing with a request that a new therapist be appointed, one that would not engage in the “foisting of secular values” upon his family.[6] At a hearing in January 2019, the court ordered that therapeutic visitation with Chloe and Felicity be “discontinued until the issues are adjudicated.” But the court also indicated that the children “may visit” with Parents “if approved” by the DCFS caseworker and the GAL and “with input from the children’s therapists.” The court did not order that any change of therapists take place.

Mother’s Adjudication

¶24 Mother did not contest the allegations in the State’s petition, admitting to some of them and, with regard to the rest, electing to proceed pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure.[7] Based on the uncontested allegations in the petition, the juvenile court found that all four children were neglected as to Mother. The court determined that Chloe, Felicity, and Hannah were neglected because Mother subjected them “to mistreatment or abuse and/or” because they “lack[ed] proper parental care by reason of the fault or habits of [Mother], and/or” because Mother had “failed to provide proper and necessary subsistence, education or medical care when required or any other care necessary for [the] health, safety, morals or well being of the children.” The court determined that Noah was neglected because he was “at risk of being neglected or abused because another child in the same home [was] neglected or abused.”

¶25      At a dispositional hearing that took place a few weeks later, the juvenile court set reunification as the primary permanency goal, and it ordered that Mother receive reunification services and comply with a child and family plan (Mother’s Plan). In particular, the court ordered Mother to “complete a domestic violence assessment,” complete an “in home peer parenting” program, undergo a “neuro-psychological evaluation,” and “complete individual therapy.”

Father’s Adjudication

¶26      Father, on the other hand, elected to contest the allegations in the State’s petition, and the matter proceeded toward an adjudication trial, which was held over five trial days in March and April 2019. During the first day of trial, Father was represented by counsel, but he then requested that the court “replace his second appointed attorney”—Father had already switched appointed counsel once—which request the court denied. Father then elected to represent himself for the remainder of the trial, although the court determined that Father’s second appointed attorney should “continue as standby counsel.” During the trial, the court heard testimony from the four minor children, Branch President, several DCFS caseworkers, Oldest Sister, Brother-in-Law, and Father.

¶27 Following the trial, the court took the matter under advisement, and it issued a written decision in June 2019. In its conclusion, the court determined that all four minor children had “been emotionally abused” in a “continuing pattern of emotional maltreatment” by Father and that this “ongoing abusive environment has emotionally damaged the children.” The court’s findings, made in support of this determination, are remarkable and are worth describing in some detail.

¶28      The court found, by clear and convincing evidence, that the allegations contained in the State’s petition were generally correct. It found that, in May 2018, Chloe wrote an “alarming letter” to her teacher describing “her home environment” and expressing “her desire to kill herself on a constant basis.” The home environment in question was one dominated and directed by Father, who—in an ostensible attempt to “promot[e] the necessity and value of work and chores”—was “unhealthily” using these principles “to control and subjugate the children.” He assigned “continuous chores” to the children and demanded that each task be performed timely—often using the mantra “housework before homework”—and perfectly, assigning additional chores and requiring the children to stay home from school if chores were not performed to his satisfaction. And he required the children to pay him for even basic household privileges, like eating “fresh food” (as opposed to “expired food stores”), using the computer, and getting rides to school.

¶29      The court found that Father often used physical force—or the threat of it—to control Mother and the children. On one occasion, Father roughly “grabbed the car keys” from Mother’s hand, “which resulted in a cut on [Mother’s] hand.” On another occasion, Father “threw the family dog out the back door because the children would not kneel down for family prayer.” Once when Noah apparently did not kneel down fast enough for family prayer, Father threw “a headlamp” at him. Other times, Father “grabbed” the children “by the wrists to make them do something.” Father once “brought [Noah] to his feet by . . . grabbing the back of his hair,” and another time he “slapped [Hannah] on the mouth.”

¶30 The court found that Chloe was not the only one of the children experiencing suicidal ideations: it found that, “as a result of the continuing emotional trauma, [Felicity] felt trapped and became suicidal; she thought about dying as a way to escape the home.” Parents were not receptive or attentive to Chloe and Felicity in this regard; although Mother did take Chloe to one appointment for a mental health assessment, there was no follow-up or any actual treatment rendered and her “suicidal thoughts were not properly addressed.” Indeed, the children were told not to speak to anyone—including church leaders and DCFS officials—about the conditions in the home, and they were threatened with punishment if they did. Felicity was even told, by one of the Parents, that “if [Chloe] were to commit suicide, it would be her fault.”

¶31 The court also found credible Branch President’s account of his meeting with the girls in August 2018, and found that the meeting occurred as set forth in Branch President’s letter to DCFS (as described above). And it found that DCFS had acted appropriately by seeking a warrant for removal in August 2018.

¶32 The court then examined the statutory definition of “emotional abuse,” as well as Utah case law interpreting that definition. The court specifically noted that a finding of “abuse” requires a finding of “harm,” which—as applied to emotional abuse—requires a finding that a child has suffered “a serious impairment in the child’s growth, development, behavior, or psychological functioning.” With this standard in mind, the court concluded that all four children had been “emotionally abused by” Father and that, in addition, Chloe was also “a neglected child due to the lack of proper parental care” from Father. The court found that the threats Father constantly made to the children had “caused emotional upheaval” in their lives “and negatively impacted [their] development.” And the court found “a continuing pattern of emotional maltreatment of the children which [had] resulted in two of the children considering suicide as an option to end the maltreatment,” and it found that “these suicidal ideations and thoughts demonstrate a serious impairment to” the affected children’s “psychological functioning.” In particular, the court found that Father,

[t]hrough the use of chores, yelling, physical control, the use of access to food, the harm to a family pet, insulting comments, blaming and payment for basic things, and the daily arguing and sometime[s] physically aggressive behavior between . . . [P]arents that the children witness, . . . has created a hostile environment, which is manifested in the children feeling unsafe and being terrified of being at home with [P]arents.

The court concluded by noting that “this ongoing abusive environment has emotionally damaged the children.” While the court did not find “physical abuse as defined” by Utah law, it did conclude that “the children’s testimony was credible about the use of physical force to submit to the requests of [Father].” The court concluded that these “physical actions” on Father’s part “were part of” the “emotionally abusive parenting style” that he “used to intimidate and control the children.”

¶33 Father appealed the court’s adjudication order, but he raised only one argument—a procedural one—in his appellate petition. Specifically, he asserted that “the juvenile court lacked jurisdiction to enter the [adjudication] order because the adjudication trial was not held within sixty days after the shelter hearing,” which Father asserted was required by Utah law. Father mounted no appellate challenge to the substance of the court’s adjudication order. In an unpublished order, we rejected Father’s procedural argument and affirmed the adjudication order, concluding that Father had not preserved his procedural argument in the juvenile court and that Father could not demonstrate plain error.

¶34      Soon after the juvenile court issued its adjudication ruling, it held a dispositional hearing regarding Father. At the conclusion of that hearing, the court set a primary permanency goal of reunification and ordered that Father receive reunification services. The court also ordered that Father “comply with all of the provisions of” a child and family plan (Father’s Plan). Among other things, Father’s Plan required Father to obtain a mental health evaluation, follow any and all recommendations made by the evaluator, and participate in therapy.

The Permanency Hearing

¶35 A few months after entering its adjudication order regarding Father, the court held a permanency hearing, which took place over three trial days in September and October 2019. Again, the court heard testimony from members of the family as well as from therapists, DCFS caseworkers, and others. At the conclusion of the hearing, the court found, as to both Parents, that DCFS had made “reasonable efforts” to facilitate Parents’ compliance with their plans and to facilitate reunification.

¶36      With regard to Mother, the court found that she had made some positive efforts to comply with Mother’s Plan. In particular, Mother had “participated in visits with the children,” “obtained a psychological evaluation and engaged in therapy,” and completed an “assessment for domestic violence.” But the court also noted that Mother “continues to not give any credence to the children’s testimony about the conditions and treatment within the home” and, because of this belief, “no progress has been accomplished in family therapy.” As part of Mother’s Plan, Mother had also been instructed “to provide a safe and stable home.” The court found that Mother was not “capable or willing to do this given the continued denial of any concerns of emotional abuse of the children with her or [Father].” Thus, even though Mother had made some progress “on a number of the services ordered,” the court concluded that she had made insufficient progress “in the most essential areas of family therapy and personal insight to have the children safely returned home at this time or in the next 90 days.” For those reasons, the court terminated reunification services for Mother.

¶37      With regard to Father, the juvenile court found that he had “not substantially complied with” Father’s Plan. First of all, Father had refused “to obtain a mental health evaluation,” despite the fact that DCFS caseworkers had set up appointments for Father to receive the evaluation and had “encourage[d] him to complete” it “prior to the permanency hearing as it would show his efforts in the reunification process.” In addition, the court found that Father had failed to “participate in meaningful family therapy.” And most significantly, it found that Father had failed in his overarching task of providing “an emotionally safe or stable home to which the children may be returned.” The court specifically noted that Father, through his testimony at the hearing, had shown that there had “been no change in his perception of the facts which facilitated the [S]tate’s involvement.” Accordingly, the court terminated reunification services for Father and set adoption as the new “primary permanency goal” for the children, with a secondary goal of permanent custody and guardianship with Oldest Sister.

The Termination Trial

¶38 In October 2019, soon after the permanency hearing, the State filed a petition to terminate Parents’ parental rights regarding all four minor children. But due to a series of delays— caused by numerous factors, including motions to disqualify the judge, attempts to appeal certain orders, requests by both Parents for new counsel, disputes over discovery and subpoenas, and (most significantly) the emergence of the COVID-19 pandemic— the termination trial did not begin until July 2021. And the trial, once it began, was quite lengthy, spanning parts of nineteen trial days and involving the testimony of more than twenty different witnesses. Due to scheduling and pandemic-related concerns, the juvenile court was unable to hold the trial in one large block of time; instead, the trial occurred on scattered dates over the course of eleven months. In the meantime, both Chloe and Felicity turned eighteen and became adults, and they each chose to be adopted— as adults and in separate district court proceedings—by Oldest Sister and Brother-in-Law. By the time the termination trial ended, only Hannah and Noah were still minors and still within the jurisdiction of the juvenile court.

¶39      First to testify at trial were three DCFS caseworkers, who told the court that it had been difficult working with Parents, especially Father. One testified that whenever difficult subjects arose, Father would become “visibly upset,” raise his voice, and stand very close to her and wave his finger. Mother was less confrontational, but the caseworkers reported that the children felt that they could not be entirely honest with Mother “because they felt that she was just collecting information to use against them” and “that she was taking notes to provide to [Father].” At one point, one of the caseworkers had advised Mother that it would be “unlikely” that her reunification with the children would be successful “if [Mother] and [Father] were still together” and if Father continued to refuse to engage in services.

¶40 The court also heard about an incident in October 2019 when Father and a caseworker had gone with Chloe to visit a child psychiatrist (Psychiatrist) to discuss Chloe’s suicidal ideations. Psychiatrist testified that Father made it clear from the beginning that he was against the appointment because he believed there was “nothing wrong” with Chloe and that she “did not need medication.” Father became “confrontational” with Psychiatrist, in terms of both his “voice tone” and his “physical posturing,” and demanded to see a copy of Psychiatrist’s credentials. Father acted similarly toward Psychiatrist’s office staff. Psychiatrist found Father’s behavior so remarkably inappropriate that he wrote a letter to the court—the first time Psychiatrist had done so in decades of practice—asking that Father be kept away from his office and prohibited from contacting his employees regarding Chloe’s medical care.

¶41      Mother’s therapist testified that Mother felt that DCFS became involved only because the children had made up “a bunch of lies” just so they could have “an easier life.” Mother also had a habit, similar to Father’s, of raising her voice and shaking her finger at the therapist and would accuse her “of being involved” in “the efforts” to keep the children “away from [Mother].” The therapist met with Mother seventeen times, but she indicated that, “at the point of discharge,” Mother had made “little progress.”

¶42      The court also heard testimony—from DCFS caseworkers as well as from the psychologist tasked to perform the assessment—that Father refused to undergo a mental health evaluation, as ordered by the court pursuant to Father’s Plan. Father’s stated concern was that he did not want DCFS to have a copy of the psychologist’s eventual report, apparently because he believed that DCFS was “kind of out to get him”; the psychologist explained to Father that he had been retained by DCFS and therefore DCFS was going to get a copy of the report. The psychologist testified that he had completed more than 4,000 assessments for DCFS over several decades and that this was the first time anyone had refused to participate on the ground that they did not want DCFS to receive a copy of the report.

¶43 Mother, on the other hand, did participate in a mental health evaluation; the psychologist who performed her evaluation testified that Mother had dependent personality disorder, obsessive-compulsive personality disorder, and dementia. The psychologist went on to note that she could not rule out aphasia as another possible diagnosis but, to be certain, Mother would need to undergo an evaluation with someone more qualified in speech and language. According to this psychologist, someone in Mother’s position would likely struggle with daily life and would need “a lot of assistance and accommodations.”

¶44      Oldest Sister testified, and she offered her perspective on what it had been like to live with Parents; in addition, she told the court about one incident that took place after she had moved out. She recounted how she would sometimes return to Parents’ house to visit her siblings, and on one such occasion, Father struck Oldest Sister. The incident began with Father demanding that, while Oldest Sister was visiting, she “clean the house” for Parents. Oldest Sister decided to stand up to Father and tell him that she was happy to help around the house while she was visiting but that she was not there to be Father’s “maid.” At this, Father “backhanded” Oldest Sister, knocking her to the floor. While on the floor, Oldest Sister threatened to call the police, at which point Mother “jumped on top” of her, warning her not to call law enforcement and that if she did, it would “ruin” the family.

¶45      Oldest Sister also offered her account of the circumstances that caused DCFS to become involved in this case, and she described that she has a strong bond of love and affection for her siblings and that they are thriving in her care. She noted that she and Brother-in-Law have three children of their own, and she stated that her four siblings have integrated well with her three children. She also testified that her siblings “know that we love them no matter what” and that they are no longer “afraid.” She told the court that she was ready and willing to adopt all four of her siblings—she had not yet adopted Chloe and Felicity—even if it meant that her own relationship with Parents would suffer.

¶46 The court also heard testimony from all four minor children, which testimony we describe here in some detail.

¶47 Chloe’s Testimony: Chloe testified over two trial days in July and August 2021, just before she turned nineteen and was about to leave on a religious mission. Chloe described herself as a religious person, and she noted her appreciation to Parents for teaching her religious principles. But she expressed disagreement with the manner in which Father often exercised his authority within the family, offering her view that Father would “force” religion “down [the children’s] throats” and “use it against” them, which Chloe believed “was tearing [the family] apart.” She stated that it had been the children’s idea to prohibit Father from talking about religion during group therapy sessions. At home, Chloe had never felt like she could express herself or “say anything,” because Father always had to be “in control” and it was always “his way or the highway.” She described how the children were “scared” of Father and would sometimes hide in a closet, “all huddled up together,” because they were “terrified.” Chloe described instances where she had witnessed Father physically hurting members of the family. On one occasion, shortly before Older Brother had moved out, she saw Older Brother arguing with Father when Father “grabbed” Older Brother and “put him in a choke hold.” When Older Brother broke free of Father’s grasp, Chloe witnessed Father “push[ing] him down the stairs.” She confirmed that she had been “suicidal when [she] was in [Parents’] house.” When she told Father about it, his response was, “If you commit suicide, you’re going to go to hell.” She also confirmed that Father had interfered with a medical appointment in which she was attempting to see Psychiatrist to discuss medication and treatment. And she described how Father would make the children eat expired food, even sometimes when it had “mold on it” or when “the expiration date [was] . . . more than two or three or sometimes even five years past.”

¶48 In addition, Chloe offered her view that Father had not “done the things the [c]ourt asked him to do” in order to reunify with his children, and she stated that she did not think she could have meaningful contact with Father going forward. She viewed Father’s unwillingness to engage with reunification services as a sign that he “didn’t want us,” because if Father had wanted them, he “would have gone through the process” that the court set out instead of “fighting so hard to be like ‘I’m right and you’re not going to tell me what I can and cannot do’” regarding the children.

¶49      Chloe was more equivocal about Mother, stating that she believed she could potentially have a good relationship with Mother if Mother were no longer with Father, and that she and Felicity had expressed that sentiment to Mother at one point. In Chloe’s view, Mother acted merely as Father’s “puppet” and did not feel free to offer “her true feelings.” Mother reacted negatively to the girls’ suggestion that she should leave Father, telling Chloe, “[D]on’t you dare ever make me choose.”

¶50      Chloe acknowledged that, as an adult, she had chosen to be adopted by Oldest Sister and Brother-in-Law, and she stated that she had wanted that outcome all along, even when she had been a minor, and that she had chosen adoption because she wanted “a loving and supportive” place “to call home” and didn’t feel like she ever had that with Parents. She noted that there had been challenges, initially, transitioning from “sister to daughter overnight” in relation to Oldest Sister, but she described her life with Oldest Sister and Brother-in-Law as, on balance, “pretty freaking amazing.”

¶51      Felicity’s Testimony: Felicity testified in November 2021, about a month before she turned eighteen. She stated that her home with Parents was “really scary” and not “safe.” Parents “yelled all the time,” fed the children “expired” food unless they paid Father for fresh food, and made the children do endless chores that somehow could never be “done good enough.” She recalled one occasion in which Father kept her up until 2:00 a.m. on a school night because he thought she hadn’t cleaned the kitchen counters well enough; Felicity finally went to bed, but Father came into her room “and poured water over [her] head” to wake her up and made her “go finish” cleaning the counters. And she recalled another occasion in which Father threw her dog outside because she “didn’t kneel down for prayers fast enough.”

¶52 Felicity confirmed that, while she lived with Parents, she struggled with “anxiety and depression” and “thought about killing [her]self.” She perceived Parents as being unsupportive of her during this time; Mother in particular was resistant to helping Felicity obtain medication for her depression, telling her instead to just “read the scriptures.”

¶53      Since being placed with Oldest Sister and Brother-in-Law, Felicity has had visits with Parents, but she testified that she doesn’t like the visits. During the visits, Parents would “act like . . . everything’s fine” and would refuse to engage with the problems in the home. She stated that the visits with Father, in particular, didn’t go well. On one occasion, she asked to take a break while Father was talking to her, and Father became angry, telling her she was not allowed to leave the room while he was addressing her. After that visit, she and the caseworkers came up with a kind of “safe word” for her to use if she needed a break during a visit: she was to say that she needed to use the restroom.

¶54 She confirmed that group therapy with Parents had not been productive because Parents “would just deny” everything and would “refuse to say that they did something wrong.” She offered her perception that Parents, during the reunification period, “haven’t done anything to change.”

¶55      Finally, Felicity testified that she liked living with Oldest Sister and Brother-in-Law because “they’re kind and they care about” her and she feels like she is “actually loved.” She testified that she does not “want to have a relationship with” either one of her Parents and that she wanted to be adopted by Oldest Sister and Brother-in-Law. Indeed, in March 2022—before the trial ended but after she testified and after she turned eighteen—she elected to be adopted by Oldest Sister and Brother-in-Law.

¶56      Hannah’s Testimony: Hannah testified in September 2021, when she was fifteen. She confirmed that she and her siblings had been removed from Parents’ home because “it wasn’t really safe” there. She testified that there was “a lot of contention” in the home and that there was “so much screaming and yelling” that she and Noah would sometimes “go hide in a closet” because they were “really scared.” She discussed several incidents in which Father used physical force, once on Mother—when he forcibly “grabbed the keys” out of her hand—and sometimes on the children: she described Father throwing a “headlamp” at Noah and once “slapp[ing] her across the face.” Often, the yelling was about the children’s chores and involved Parents indicating that they were dissatisfied with the manner in which the children had performed their tasks. She said that “every time” Parents started yelling, she “was afraid they were going to hit” her, which caused her “anxiety” and was “really scary.” She testified that, in those situations, she “couldn’t talk back” because, if she did, she would “get in more trouble.”

¶57      She testified that the post-removal visits were “pretty scary at first” because she worried that Parents “were going to take all of their anger” about the removal “out on” the children. Hannah did not believe that the visits were productive, and she testified that she felt “released” and “happy” when visits with Father were “canceled.” She believed that the group therapy sessions, in particular, were unhelpful, largely because Parents refused to ever acknowledge that they might have done anything wrong.

¶58      And she testified that living with Oldest Sister and Brother-in-Law was “pretty awesome” because she feels “loved there” and feels “like someone cares for” her and that she wasn’t “scared anymore.” She told the court that she wanted to be adopted by Oldest Sister and Brother-in-Law, and that she would “run away” if she were forced to return to Parents’ home.

¶59 Noah’s Testimony: Noah testified in September 2021, a few weeks before his thirteenth birthday. He also testified that Parents’ home “wasn’t a safe environment” due to the constant “yelling and contention,” offering his view that “there was almost never . . . peace and happiness.” He recalled Parents waking him up by spraying him “with a water bottle,” and he recalled the headlamp incident.

¶60 His view of the post-removal visits was that he “didn’t really want to have them” because he didn’t “want to have a relationship with [Parents] anymore.” He found the visits “odd at first” but then, after a while, he just found them “boring” and “a waste of time” because Parents would just ask “the same questions.” He also believed that Parents “wouldn’t try and improve” themselves through the visits and group therapy.

¶61      And Noah testified that he “really like[s]” living with Oldest Sister and Brother-in-Law and that he wants to “live permanently” with them. He testified that Oldest Sister’s home is “a loving environment” where they “help each other . . . try to get better and improve.” He stated that he doesn’t “want [Parents] to be [his] parents,” and that he would not “feel safe” if he was returned to Parents’ custody. He expressed a desire “to have [Oldest Sister and Brother-in-Law] be [his] parents.”

¶62      Finally, the court heard extensive testimony from Parents. Father testified over three trial days and was the only witness to testify on two of those days. Mother also testified over three trial days. For the most part, in the interest of brevity, we present their testimony through our description of the juvenile court’s ruling, set forth immediately below. But in general, Parents refused to acknowledge that they had acted in any way inappropriately, and they defended their behavior as a means of instilling discipline and religious-based values in their children.

The Court’s Post-Trial Ruling

¶63 Following the presentation of evidence, the attorneys presented their closing arguments over parts of two days. After that, the juvenile court took the matter under advisement and, a few weeks later, issued a fifty-three-page written decision. In that decision, the court summarized the testimony that had been presented; in particular, the court spent some twelve pages summarizing Parents’ lengthy testimony.

¶64 The court noted that Father described Oldest Sister as “spoiled” and described Chloe’s expression of suicidal ideations as “play[ing] the suicide card.” Father acknowledged that he had awakened the children with water, thrown a headlamp at Noah, and “raised his voice” during the meeting with Branch President. But he justified these behaviors as merely strict religious-based parenting. The court noted Father’s stated belief that “the [State] had invaded his family” and was “taking over his stewardship,” as well as Father’s contention that the assigned therapists “had replaced his religious beliefs” by instituting rules for the therapy sessions with which he disagreed. And the court noted Father’s testimony that Branch President was “highly judgmental and lacking in integrity,” as well as Father’s stated belief that DCFS, Branch President, and Oldest Sister “got together with malice to engage in child kidnapping and child trafficking” so that Oldest Sister could “enslave[]” the children to “serve [her] family.”

¶65      With regard to Mother, the court noted that she had been married to Father for thirty-five years and “intends to stay married to him.” Mother testified that, at one point, the GAL and DCFS caseworkers told her that “she had to choose between [Father] and the children,” and that she “told them no, that they are not going to break up the family.” The court noted Mother’s belief that she had attempted to comply with Mother’s Plan, and that Mother “wants to have a special relationship with all of her children and would like the family to be together.”

¶66 After summarizing the voluminous testimony presented at trial, the court made certain findings and conclusions. It found that Father “uses religious, familial, and authoritative vocabulary to intimidate the children,” and that he “has used his physical presence” in that manner as well “by standing up, making his body larger, [and] power posing [to] the children.” The court found that Father “has not engaged in purposeful family therapy with the children to address the issues” in the case and that Father “has never acknowledged that he” might bear some responsibility for the situation. The court noted that the “family never moved from square one in talking about the real issues that led [Chloe] to be suicidal and had [Noah] and [Hannah] hiding in the closet.” The court declared that, “[w]ithout addressing and correcting the problems in the home as to parenting style and the environment, the children and [Father] will never have a healthy relationship.” The court found that “there does not exist a bond of love and affection between the children and [Father].” And it observed that Father certainly “has the constitutional right to parent his children” but that the “children also have the right to be free from emotional abuse.” In summary, the court found that Father “is an unfit parent” and that Hannah and Noah could not “safely be returned to [Parents’] home to reside with [Father] since he has made no efforts,” or “only token efforts,” to address and eliminate “the issues of emotional abuse which exist in the home.”

¶67    As to Mother, the court found that she “supported [Father] in his harmful treatment of the children as he tried to control their lives,” and that she “minimized the emotional maltreatment that was occurring in the home and the extent of the emotional trauma” the children experienced. It found that Mother “continues to deny . . . any emotional . . . maltreatment of the children,” that she “laughs when questioned about these things and continues to blame the children and [Oldest Sister] for [DCFS’s] intervention,” and that she “has never considered for a moment that she or [Father] have done anything untoward or harmful to the children.” The court found that Mother’s “continued association with [Father] puts the children at risk should they be returned to her custody and care.” The court found grounds sufficient to justify termination of her parental rights, concluding that Mother was “unable or unwilling to remedy the circumstances that caused the children to be in an out-of-home placement” and that she had made only “token efforts to eliminate the risk of serious harm to the children.”

¶68      Having found grounds sufficient to justify termination of Parents’ rights, the court then turned to the best-interest question. The court determined “that it is in the children’s best interest and strictly necessary to terminate” Father’s parental rights. The court considered whether to impose a permanent custody and guardianship arrangement with Oldest Sister and Brother-in-Law, but it did “not find this alternative to be in the children’s best interest.” The court noted that both Branch President and Psychiatrist had considered Father so aberrant that—in an effort to keep Father away from the children—they had each taken action they had never taken before. And the court noted that, “if permanent custody and guardianship were granted” to Oldest Sister, Father “would still be in the orbit of the two remaining [minor] children” and would be able to “assert[] his will as to basic medical and otherwise personal decisions in the care of the children.” For these reasons, the court concluded that the State had demonstrated, by clear and convincing evidence, that termination of Father’s rights was strictly necessary to advance the children’s best interest. The court therefore ordered that Father’s rights be terminated.

¶69 As to Mother, however, the court reached a different conclusion. The court first noted “the legislatively mandated position that wherever possible family life should be strengthened and preserved,” and it observed that the children were in the custody of a relative—Oldest Sister—and were not “in a home unrelated to” Parents. The court noted that the children’s visits with Mother had gone better than their visits with Father, and that their relationship with Mother—unlike their relationship with Father—does not cause “the children emotional or mental harm.” Accordingly, the court concluded that, with regard to Mother, “the children can be equally protected and benefited by an option other than termination.” The court therefore declined to terminate Mother’s rights, and it placed the children in a permanent custody and guardianship arrangement with Oldest Sister and Brother-in-Law.

The GAL’s Rule 59 Motion

¶70      Shortly after the issuance of the court’s initial post-trial ruling, the GAL filed a motion—grounded in rule 59 of the Utah Rules of Civil Procedure—requesting that the court reconsider its decision not to terminate Mother’s parental rights. The GAL asserted that, in making its decision not to terminate Mother’s rights, the court had viewed matters too much from Mother’s point of view and not enough from the children’s point of view. Mother opposed the motion.

¶71      During a hearing on the motion, the GAL began to discuss events that had occurred since the conclusion of the termination trial, and Mother’s counsel objected. The court determined that it would permit counsel to “put in a memorandum or affidavit” the “additional information supporting” its argument, and it would then allow all other parties “to file an affidavit or other response.” Following the hearing, the GAL filed with the court an affidavit from Brother-in-Law in which he described, among other things, the effects that post-trial visits with Mother had been having on Hannah and Noah.

¶72 A few weeks later, the juvenile court issued a written ruling granting the GAL’s motion. In the introductory paragraph of that ruling, the court noted that, in preparing to make its decision, it had reviewed “the filings and arguments of the parties, the oral argument on the [m]otion and the prior testimony from the termination trial and the original findings and order.” But the court made no specific mention, anywhere in its ruling, of the post-trial events described in Brother-in-Law’s latest affidavit. Instead, the court stated that it was reconsidering its prior ruling and, this time, it was ordering termination of Mother’s parental rights; it explained that, in its initial ruling, it had “failed to give the proper weight to the children’s expressed wishes to be adopted” by Oldest Sister and Brother-in-Law. The court noted that the “children have been direct in seeking to be adopted.” And it noted that it was statutorily commanded to “give the minor’s wishes added weight” if the minor in question was fourteen years old or older, a stipulation that, in the court’s view, applied to all of the children (Noah having recently turned fourteen). After reconsidering its prior decision in light of the added weight given to the children’s stated wishes, the court determined that termination of Mother’s rights was in the children’s best interest, and it therefore ordered that her rights be terminated.

ISSUES AND STANDARDS OF REVIEW

¶73      Parents now appeal, and they raise several issues for our review. First, they contend that the juvenile court violated their constitutional rights. “Constitutional issues, including questions regarding due process, are questions of law,” and the conclusions of the juvenile court on such issues are reviewed “for correctness.” In re adoption of K.T.B., 2020 UT 51, ¶ 15, 472 P.3d 843 (quotation simplified). Along with this argument, Parents also assert that the constitutional issues they raise indicate that the court erred in concluding that DCFS made reasonable efforts to facilitate reunification. To the extent that Parents’ constitutional arguments raise “reasonable efforts” questions, we review the court’s ruling more deferentially. See In re P.J.R., 2023 UT App 27, ¶ 24, 527 P.3d 1114 (“A court’s determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court’s factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” (quotation simplified)), cert. denied, 534 P.3d 750 (Utah 2023).

¶74      Second, Parents assert that their respective attorneys provided ineffective assistance of counsel at various points throughout the litigation. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re D.G., 2022 UT App 128, ¶ 6, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023).

¶75 Third, Father argues that some of the juvenile court’s factual findings were against the clear weight of the evidence. “In order to overturn the juvenile court’s decision the result must be against the clear weight of the evidence or leave [this] court with a firm and definite conviction that a mistake has been made.” In re G.D., 2021 UT 19, ¶ 70, 491 P.3d 867 (quotation simplified).

¶76      Finally, while Parents do not take issue with the juvenile court’s ruling that statutory grounds for termination existed, Parents do challenge the court’s ruling that termination was strictly necessary to promote the children’s best interest. We review a trial court’s “best interest determination deferentially, and we will overturn it only if [the court] either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re D.S., 2023 UT App 98, ¶ 15, 535 P.3d 843 (quotation simplified), cert. granted, Jan. 25, 2024 (No. 20230877). But “because the evidentiary standard applicable in termination of parental rights cases is the clear and convincing evidence standard, we will assess whether the juvenile court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” Id. (quotation simplified).

¶77 Along with her best-interest argument, Mother raises an additional issue: she asserts that the juvenile court erred by allowing the GAL to submit new evidence of post-trial matters in support of the rule 59 motion. “We generally disturb a trial court’s grant or denial of a rule 59 motion only if it constitutes an abuse of discretion.” Bergmann v. Bergmann, 2018 UT App 130, ¶ 12, 428 P.3d 89 (quotation simplified). And we will not reverse that decision if the only errors in it were harmless. See State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237 (“We do not reverse a trial court for committing harmless error.”); Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶ 9, 311 P.3d 564 (“[A] harmless error does not require reversal.”), cert. denied, 320 P.3d 676 (Utah 2014).

ANALYSIS

  1. Constitutional Claims

¶78      We first address Parents’ assertion that the “juvenile court process” that resulted in the termination of their parental rights violated their constitutional rights. We describe Parents’ specific claims in more detail below, but before we discuss the particulars of those claims, we pause to emphasize two critical background points, one legal and one factual, that help frame our analysis.

¶79      The legal background point is straightforward and should go without saying: a parent has no general right, whether statutory or constitutional, to abuse or neglect a child for religious reasons.

¶80 Utah’s child welfare statutes regarding abuse of a child have no exceptions allowing abuse to occur on religious grounds. In the child welfare context, “[a]buse” means (among other things) “nonaccidental harm of a child” or “threatened harm of a child.” Utah Code § 80-1-102(1)(a). The governing statute specifies that “reasonable discipline” of a child does not constitute “[a]buse,” nor does “reasonable and necessary physical restraint or force” applied in defense from or protection of the child or others. Id. § 80-1-102(1)(b). But there is no statutory exception excusing abuse simply because it might be religiously motivated.

¶81      Similarly, in the child welfare context, “[n]eglect” includes “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent,” and includes “action or inaction causing . . . failure or refusal of a parent . . . to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well­being.” Id. § 80-1-102(58)(a)(ii), (iii). The statutory definition of neglect does include one religious-based exception: a parent who is “legitimately practicing religious beliefs and who, for that reason, does not provide specified medical treatment for a child” has not neglected that child. Id. § 80-1-102(58)(b)(i).[8] But other than this narrow exception, Utah’s statutes offer no room for a parent, on religious grounds, to take actions that would otherwise constitute neglect of a child.

¶82      Nor is there any constitutional right to abuse or neglect a child in the name of religion. To be sure, parents have a right to teach their children religious principles and to encourage them to comply with the tenets of a chosen religion. Kingston v. Kingston, 2022 UT 43, ¶ 24, 532 P.3d 958 (stating that “parents have a fundamental right” under the United States Constitution “to encourage their children in the practice of religion”). But such rights peter out where a parent’s religious practices result in mistreatment of a child. See Zummo v. Zummo, 574 A.2d 1130, 1154–55 (Pa. Super. Ct. 1990) (noting that parents are “free to provide religious exposure and instruction” to their child as they see fit, “unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child” (quoted in Kingston, 2022 UT 43, ¶ 67)); see also Prince v. Massachusetts321 U.S. 158, 166–67 (1944) (stating that “the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare,” including in “matters of conscience and religious conviction,” and noting that the state’s “authority” in this regard “is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience”); Koch v. Koch, 207 So. 3d 914, 915 (Fla. Dist. Ct. App. 2016) (noting courts’ ability to restrict a parent’s rights where there is “a clear, affirmative showing that the [parent’s] religious activities . . . will be harmful to the child” (quotation simplified)); In re Edward C., 178 Cal. Rptr. 694, 699 (Cal. Ct. App. 1981) (“Mistreatment of a child . . . is not privileged because it is imposed in the guise of freedom of religious expression.”); Amos N. Guiora, Protecting the Unprotected: Religious Extremism and Child Endangerment, 12 J.L. & Fam. Stud. 391, 405 (2010) (“Religious belief and conduct cannot be used as justification for placing children at risk; government, law enforcement and the general public cannot allow religion to hide behind a cloak of ‘religious immunity.’”).

¶83 Next, the factual background point is simply this: as discussed above, Parents have already been adjudicated to have abused or neglected the children, and those adjudications were not substantively challenged on appeal.

¶84 With regard to Father, the juvenile court found—after a five-day adjudication hearing—that Father had “emotionally abused” all four children. The court specifically discussed the rather stringent statutory definition of “emotional abuse” and recognized that it required a finding that a child has suffered “a serious impairment in the child’s growth, development, behavior, or psychological functioning.” See Utah Code § 80-1-102(37)(b). But the court comfortably made such findings with regard to Father, concluding that Father had engaged in “a continuing pattern of emotional maltreatment of the children which has resulted in two of the children considering suicide as an option to end the maltreatment.” The court also found that Father had “created a hostile environment” for the children that caused them to suffer “emotional damage[],” and it found that Father’s “use of physical force” was part of the “abusive parenting style” that he “used to intimidate and control the children.”

¶85 With regard to Mother, the court determined—based on Mother’s own rule 34(e) admissions—that all four children were neglected. In particular, the court concluded that Chloe, Felicity, and Hannah were neglected because Mother subjected them “to mistreatment or abuse and/or” because they “lack[ed] proper parental care by reason of the fault or habits of [Mother], and/or” because Mother had “failed to provide proper and necessary subsistence, education or medical care when required or any other care necessary for health, safety, morals or well being of the children.” And the court found that Noah was neglected as to Mother since he was “at risk of being neglected or abused because another child in the same home is neglected or abused.”

¶86 Mother did not appeal the court’s adjudication order. Father did, but he raised only one argument—a procedural one— in his appellate petition; he mounted no appellate challenge to the substance of the court’s adjudication order. In an unpublished decision, we rejected Father’s procedural argument and affirmed his adjudication order.

¶87 Thus, Parents have been adjudicated to have abused or neglected the children, and those adjudications were either not appealed or were affirmed on appeal. In light of these facts, Father’s attorney agreed, at oral argument before this court, that the adjudication order is now part of the case and that we, for purposes of this appeal, must therefore take it “as it is.” As we understand it, this concession is in keeping with Utah law. An adjudication order is “final for purposes of appeal,” see In re S.A.K., 2003 UT App 87, ¶ 13, 67 P.3d 1037, and “where a final ruling or order of the trial court goes unchallenged by appeal, such becomes the law of the case, and is not thereafter subject to later challenge,” see SRB Inv. Co. v. Spencer, 2023 UT App 120, ¶ 29, 538 P.3d 231 (quotation simplified). We have, on several occasions, refused to allow parents to re-litigate adjudication orders in the context of appeals from later orders. See In re D.G., 2014 UT App 22, ¶ 5, 319 P.3d 768 (stating that “matters relating to the adjudication hearing are barred” from consideration on appeal from a termination order where the parent “did not appeal the adjudication order”); see also In re E.T., 2014 UT App 206, ¶ 2, 335 P.3d 394 (per curiam) (stating that where a parent “failed to timely appeal [an] adjudication order, we lack jurisdiction to consider an appeal of that order” in an appeal from a later order).

¶88 Given these background principles and facts, Parents cannot—and here make no serious attempt to[9]—argue that the adjudication findings should be reversed, or that their underlying abuse and neglect should be excused on religious grounds. Instead, they make narrower constitutional arguments.

¶89      They begin by asserting, in general terms, that the “juvenile court process” that led to the termination of their parental rights violated their constitutional rights to parent their children and, in particular, their right to encourage their children in the practice of religion. They then point out—citing Kingston, 2022 UT 43, ¶ 29— that “any state interference with parents’ right to encourage their children in the practice of religion . . . is subject to strict scrutiny.” And they conclude by arguing that their right to encourage their children regarding religion was infringed during the case, specifically asserting that DCFS “cannot have made reasonable efforts to provide reunification services if it does not employ the least restrictive means available.”

¶90 As examples of what they claim to have been “state interference” with their right to encourage the children in the practice of religion, Parents point to two things: (1) the rule Therapist put in place, at the behest of the children, that Parents not discuss religion with the children during family therapy sessions; and (2) the court’s refusal to grant Father’s request that Therapist be removed from the case and replaced with “a therapist more understanding of his religious beliefs.”[10] We find Parents’ arguments unpersuasive.

¶91 We first discuss Parents’ arguments regarding the rule forbidding them from discussing religion during family therapy. In this case, we need not decide whether Parents’ constitutional right to encourage their children in the practice of religion requires the State to allow Parents to offer such encouragement during therapy sessions provided by the State as part of reunification services. Nor do we need to decide—even assuming there is such a requirement—whether the rule imposed here satisfied strict scrutiny review by being “narrowly tailored to protect a compelling government interest.” Id. ¶ 61 (quotation simplified). Given the record before us, we may avoid these questions because even assuming, for purposes of the discussion only, that there was a constitutional violation in this regard, any such violation was clearly harmless here. See In re A.R., 2017 UT App 153, ¶¶ 11−13, 402 P.3d 206 (affirming the termination of a parent’s rights in the face of an asserted constitutional violation because, even if the court committed constitutional error, the error was harmless); see also In re I.M.L., 2002 UT 110, ¶ 9 n.3, 61 P.3d 1038 (“Generally, we avoid reaching constitutional issues if a case can be decided on other grounds.”). The evidence presented at the termination trial showed that Father paid no heed to the rule in any event and simply went ahead—against the children’s request, communicated through Therapist—and discussed religion with the children during the family therapy sessions.[11] Given Father’s refusal to follow it, Parents do not explain how the rule’s short-lived existence made any difference here; in particular, they make no effort to demonstrate how the therapy sessions would have been different or more productive had the rule not been in place. Moreover, and perhaps most significantly, the rule was only in effect for about five weeks, because the juvenile court ordered it removed at the first opportunity. As soon as Parents asked that the rule be removed, the court granted that request; Parents do not explain what the juvenile court could have done better or more speedily with regard to this rule. In short, we see no reasonable likelihood that the temporary imposition of a rule disallowing Parents to discuss religion during therapy sessions affected the outcome of the proceedings.[12]

¶92 Next, with regard to Parents’ second example of asserted “state interference”—their claim that they had a constitutional right to a therapist whose religious beliefs matched their own— we likewise reject Parents’ argument without entirely reaching its merits. Even if we assume—without deciding, and for purposes of the argument only—that Parents had a constitutional right to a therapist whose religious beliefs matched their own, Parents’ argument on this point nevertheless fails because Parents have not explained exactly how—or even whether—Therapist’s religious beliefs or practices differed from their own. The record is silent as to what Therapist’s religion was—we therefore do not know whether she was a member of Parents’ religion or not. And Father conceded, during his testimony, that his objection to Therapist was not based on whether she shared his religion or not, explaining that he doesn’t “just look at a person on an LDS basis.” He explained, instead, that he wanted the children to have a therapist who agreed with him on the “eternal values or principles” that he “believe[d] govern the universe.” But in his briefing, Father makes no effort to identify what those “values or principles” are, whether they derive from his religion or from some other source, or how they might have differed from Therapist’s religious beliefs and practices.

¶93 Indeed, the GAL argues, with some force, that Father’s objectionable behavior was not grounded in the tenets of any religion but, instead, simply amounted to Father’s personal belief that, as head of the household, he had the right to bully and intimidate his children and to say whatever he wanted whenever he wanted during family therapy sessions. After all, even Father’s own religious leader considered Father’s similar behavior during the meeting at the church to be inappropriate and by no means compelled by tenets of their shared religion. And it is noteworthy that all four children—even after removal and despite the abuse and neglect they experienced—have remained steadfast adherents of the religion they share with Parents. Thus, one might reasonably conclude that Father’s conflict with Therapist had nothing whatsoever to do with specific religious tenets and everything to do with Father’s personality. At a minimum, Parents have not carried their appellate burden of persuading us that the situation is otherwise. And we note that courts have rejected similar claims in analogous cases on the basis that the parent had not “establish[ed] a clear relationship between” his or her “religious faith” and the specific “discipline” imposed on the children. See, e.g.Jakab v. Jakab, 664 A.2d 261, 265 (Vt. 1995); see also In re H.M., 144 N.E.3d 1124, 1148 (Ohio Ct. App. 2019) (noting that the “record is scant on defining the parents’ actual religious beliefs” and whether they motivated the behavior in question).

¶94      For these reasons, we see no constitutional infirmity in the juvenile court’s refusal to grant Father’s request for a different family therapist in this case.

¶95      We note again that Parents’ overarching argument is that

“the State could not have made reasonable efforts if its actions do not pass strict scrutiny.”[13] Yet as to the two ways Parents allege that the State’s actions do not pass muster, Parents have in one instance failed to show any actual infringement of a constitutional right, and in the other they have failed to persuade us that reunification services would have been more successful in the absence of the alleged constitutional violation. Thus, we perceive no error in the juvenile court’s reasonable efforts determination, and we reject Parents’ claims that, during the “juvenile court process,” their constitutional rights were violated.

  1. Ineffective Assistance of Counsel

¶96 Next, Parents assert that they received ineffective assistance of counsel during the termination proceedings. “To establish [an] ineffective assistance of counsel claim, [a party] must show that counsel’s performance was objectively deficient and that counsel’s deficient performance prejudiced the case.” In re D.G., 2022 UT App 128, ¶ 9, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023). “Failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim,” and therefore we are “free to address [Parents’] claims under either prong.” In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quotation simplified).

¶97 Parents each make one argument in this regard. We first address Father’s contention that his attorney was ineffective for not objecting to “improper bolstering evidence” presented during the termination trial. Second, we address Mother’s argument that her attorney rendered ineffective assistance “by failing to object to” the terms of Mother’s Plan. For the reasons set forth below, we conclude that neither Father nor Mother has borne their burden of establishing that their attorneys rendered ineffective assistance.

  1. Father’s Claim

¶98      Father asserts that his attorney rendered constitutionally ineffective assistance by failing to object to certain testimony, offered by the State’s witnesses during the termination trial, that Father characterizes as “improper bolstering evidence.” Father points to three statements that he believes amounted to improper bolstering of the children’s accounts of things that happened in the family home. First, he points to Therapist’s statements that Chloe was “not exaggerating her symptoms or faking how she was feeling” when reporting suicidal ideations and seeking medication and that she was being “pretty honest” in her descriptions, as well as to Therapist’s similar statement that the threats of suicide that Chloe and Felicity had made were not “fabricated” and were not “attention getters.” Second, he complains about a different therapist’s testimony that “there was never anything that [Noah] or [Hannah] told [her] relating to their experiences” at home “that would lead [her] to believe they were being dishonest.” Finally, Father identifies Branch President’s testimony that, during his communication with Chloe, Felicity, and Hannah in the August 2018 meeting, he had no concerns that “the girls were making these things up.”

¶99      Father asserts that these statements were inadmissible and that a reasonable attorney would have objected to these statements in an effort to keep them out. He further asserts that, given the importance of the children’s credibility to the issues before the court, the admission of these statements was ultimately prejudicial to him and led the court to believe the children’s accounts over his own.

¶100 We have our doubts about whether a reasonable attorney would have objected to these statements, given the importance of many of them to therapeutic diagnosis and treatment. But even assuming, for the purposes of argument, that Father’s attorney performed deficiently by not objecting to these statements, the admission of these statements did not prejudice Father on the specific facts of this case. To establish prejudice, Father must do more than “show that the errors had some conceivable effect on the outcome of the proceeding.” State v. Samora, 2023 UT 5, ¶ 22, 529 P.3d 330 (quotation simplified). He bears the burden of demonstrating “that the decision reached would reasonably likely have been different absent trial counsel’s alleged errors.” Id. (quotation simplified). Father cannot meet that burden here.

¶101 By the time the termination trial rolled around, the court had already conducted numerous hearings in this case; most notably, it had held a five-day adjudication trial in which it had heard from the children and from various therapists and caseworkers, and it had already entered extensive findings and conclusions. In particular, as noted above, the court had already engaged in the process of determining whether Chloe and Felicity had felt genuine suicidal ideations, and concluded that they had; likewise, the court had already engaged in the process of determining whether Father had emotionally abused the children and concluded that he had. Given that the court had already made these findings, which were not substantively appealed, we cannot conclude that there is any reasonable likelihood that—absent the challenged statements—the court would, at the termination trial, have changed its entire outlook on the events in the home and made antipodally different findings than the ones it had already made at the adjudication trial.

¶102 Under these circumstances, Father cannot demonstrate that he was prejudiced by any deficient performance on the part of his attorney. Accordingly, his ineffective assistance of counsel claim necessarily fails.

  1. Mother’s Claim

¶103 Mother asserts that her attorney rendered constitutionally ineffective assistance by failing to object to the terms of Mother’s Plan and to “the State’s failure to provide the recommended services,” and by not requesting a “modified service plan” better tailored to Mother’s needs. According to Mother, “[r]easonable counsel would have understood the importance of the service plan and the services recommended by it,” and she maintains that, if she had received the benefit of a modified plan, there is a “reasonable likelihood that the court would not have determined that Mother had failed to complete the services.”

¶104 During the termination trial, the psychologist who evaluated Mother testified that Mother has dependent personality disorder, obsessive-compulsive personality disorder, and dementia, and that Mother might also suffer from aphasia but would need additional testing for that diagnosis to be confirmed. The psychologist opined that someone with Mother’s conditions would likely experience some struggles in daily life and may need “assistance and accommodations.” At the time, Mother’s attorney did not object to Mother’s Plan or assert that it should include any additional services to accommodate these diagnoses.

¶105 Now, however, Mother asserts that her attorney should have objected and should have requested that Mother’s Plan include additional services intended to assist Mother with these diagnoses and conditions. But here on appeal, Mother does not identify—let alone meaningfully discuss—any specific services she now wishes counsel would have requested, and she has therefore failed to demonstrate that she was prejudiced by counsel’s failure to make a request. Without identifying any specific services she would have liked to have received, it is impossible for her to show that such services would have been reasonably likely to have made a difference here, especially in the face of the established facts: that Mother was steadfast in her loyalty to Father, that she at all times refused to acknowledge any responsibility for the situation, and that she failed to undertake efforts to remedy the circumstances that caused the children to be in an out-of-home placement.

¶106 Like Father, Mother has not borne her burden of demonstrating that she was prejudiced by any deficient performance on the part of her attorney. Accordingly, her ineffective assistance of counsel claim likewise fails.

III. Challenges to the Juvenile Court’s Factual Findings

¶107 Next, we address Father’s assertion that a handful of the juvenile court’s factual findings were clearly erroneous and unsupported by the evidence presented at the termination trial. Father identifies four such findings; we discuss each of them, in turn, and conclude that none of them are problematic.

¶108 First, Father challenges the court’s finding that Chloe “spoke about suicidal thoughts while she lived at home.” This finding is amply supported by the evidence presented at the termination trial. Chloe testified, on direct, that she had told Father that she was “suicidal,” and that he responded by telling her that if she killed herself she would “go to hell.” On cross-examination, she explained that she had told Father that, when he treats her “like crap,” it makes her “feel like [she] just want[s] to commit suicide.” She did acknowledge that she made the comment in a kind of in-passing way, and that “it wasn’t like [she] sat [Father] down and said, ‘Dad this is a serious thing. I’m seriously considering [suicide].’” But this testimony is more than enough to support a finding that Chloe “spoke about suicidal thoughts while she lived at home.”

¶109 Moreover, the court had already found, in the adjudication trial, that Chloe’s suicidal ideations were genuine. In these earlier proceedings, the court had already learned that Parents had been informed of Chloe’s feelings well before the children were removed from the home and that they had downplayed any concerns, calling Chloe a “drama queen” and indicating that they did not believe her. Under these circumstances, ample evidence supported the court’s finding that Chloe spoke about her suicidal ideations while still living in Parents’ home.

¶110 Second, Father challenges the court’s characterization that Brother-in-Law testified that the children attended post-removal visits with Father “because it [was] what they [were] supposed to do and [they] [didn’t] engage very well.” Father asserts that the court’s characterization of Brother-in-Law’s testimony is inaccurate, and he points to a different statement Brother-in-Law made indicating that the children did not like the visits because “it interrupt[ed] their schedule.” While it’s true that Brother-in-Law said that the visits interrupted the children’s schedule, the record also shows that he testified that the children were “not very engaged” during visits but “[t]hey underst[ood] that’s what they [were] supposed to do, and so they [attended], begrudgingly sometimes, but they [were] there.” We fail to see how the juvenile court’s omission of Brother-in-Law’s additional statement that the visits interrupted the children’s schedule somehow renders the court’s finding erroneous.

¶111 Third, Father challenges the court’s statement that Noah testified that he would not feel “safe” at home. Father argues that this statement is erroneous because, as he sees it, Noah later “retracted that statement” and testified that he “didn’t mean to say safe.” Father then directs us to the portion of Noah’s testimony he believes supports his position. At this point in his testimony, Noah was being asked about the circumstances surrounding Oldest Sister’s departure from Parents’ home. He was specifically asked what he meant by his statement that she left because it “wasn’t safe.” Noah then clarified that he “probably didn’t mean to say safe” and that what he meant to convey was that Oldest Sister had gone through similar experiences to his own in living with Parents and that was the reason she left. But Noah’s statement that he did not mean to say that Oldest Sister left because it was not safe is not a retraction of his earlier statement that it was his personal belief that Parents’ house “wasn’t a safe environment.” Father mischaracterizes the record on this point and has fallen far short of persuading us that the court’s finding on this issue was clearly erroneous.

¶112 Finally, Father challenges the court’s finding that Brother-in-Law testified that the children “stopped hoarding food in their bedrooms.” Father argues that the actual testimony was about “hiding” food—not “hoarding” food—and asserts that there was no evidence that the children were malnourished or underfed while in Father’s care. We do not see a significant difference, in this context, between “hiding” food and “hoarding” food—however characterized, there is no question that the children secreted food in their bedrooms; Brother-in-Law explained that the children were “afraid to ask for more food” so they would take extra snacks to their bedrooms and “store” the food for later. Under these circumstances, we do not consider the court’s characterization of the evidence to have been clearly erroneous.

¶113 Accordingly, we reject each of Father’s challenges to the juvenile court’s factual findings.

  1. Best Interest/Strictly Necessary

¶114 Finally, we address Parents’ various challenges to the court’s conclusions that termination of their rights was strictly necessary to promote the best interest of Hannah and Noah. Both Parents raise a direct challenge to the substance of the court’s decision. In addition, Mother raises additional issues regarding the court’s handling of the GAL’s rule 59 motion. We first discuss Father’s substantive challenge, and then separately discuss Mother’s two arguments.

  1. Father’s Claim

¶115 Before the rights of any parent are terminated, the party seeking termination must establish (1) that “at least one of the enumerated statutory grounds for termination [is] present” and (2) that the “termination of parental rights [is] in the best interest of the affected children.” In re D.S., 2023 UT App 98, ¶ 16, 535 P.3d 843 (quotation simplified), cert. granted, Jan. 25, 2024 (No. 20230877). Parents do not challenge the juvenile court’s determination that sufficient statutory grounds for termination are present, but they do challenge the court’s conclusion that termination of their rights is in the children’s best interest.

¶116 The best-interest inquiry is “wide-ranging” and “asks a court to weigh the entirety of the circumstances” of a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified); see also In re H.F., 2019 UT App 204, ¶ 14, 455 P.3d 1098 (“The best-interest test is broad, and is intended as a holistic examination of all the relevant circumstances that might affect a child’s situation.” (quotation simplified)).

¶117 Our legislature has mandated that termination of parental rights is permissible only when such termination is “strictly necessary.” Utah Code § 80-4-301(1). Our supreme court has interpreted this statutory requirement to mean that “termination must be strictly necessary to promote the child’s best interest.” See In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. Indeed, a court’s inquiry into the strict necessity of termination should take place as part of the best-interest inquiry that comprises the second part of the termination test. See id. ¶ 76 (“[A]s part of [the best-interest] inquiry, a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest.”). And our supreme court has noted that

this part of the inquiry also requires courts to explore whether 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. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less-permanent arrangements might serve the child’s needs just as well.

Id. ¶ 67 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. ¶ 66.

¶118 In this case, the court seriously considered one non-termination option: imposing a permanent custody and guardianship arrangement in favor of Oldest Sister and Brother-in-Law. However, for various reasons, the court concluded that this option was not in the children’s best interest, and therefore it ordered termination of Parents’ rights. Parents each challenge the court’s conclusion in this regard.

¶119 With regard to Father, the court stated that it did “not find this alternative [of permanent custody and guardianship] to be in the children’s best interest,” and it offered “[a] couple of examples” to “illustrate the basis for this decision.” First, the court pointed to both Psychiatrist and Branch President, and noted that they had each found Father’s behavior to be so aberrant that they had taken action they’d never before taken: they sent letters to DCFS or to the court indicating their belief that Father was a danger to the children. Second, the court raised a concern about Father retaining residual parental rights, noting that, under a permanent custody and guardianship arrangement, Father “would still be in the orbit of” Hannah and Noah and could “assert[] his will as to basic medical and otherwise personal decisions in the care of the children.”

¶120 Father challenges the court’s best-interest determination, and he makes two arguments, one categorical and one fact-specific. First, Father asserts that parental rights can never be terminated where children are in a kinship placement, as these children are here with Oldest Sister. We reject this position. No Utah statute mandates this position, and we have never so held. See In re A.H., 2022 UT App 114, ¶ 49, 518 P.3d 993 (“We stop well short of holding that, where an acceptable kinship placement exists, it can never be strictly necessary to terminate a parent’s rights.”), cert. granted, 525 P.3d 1279 (Utah 2023). To be sure, “[i]f there exists a completely appropriate kinship placement through which the family can remain intact, the ‘strictly necessary’ showing becomes significantly harder to make.” Id. But such a showing is not impossible; indeed, staking out the categorical position Father advocates makes no sense in this context. It does not take much imagination to think of situations in which a parent’s relationship with a child is so harmful and abusive that it is strictly necessary, if the child’s best interest is to be promoted, to permanently sever that relationship, regardless of whether the child is placed with a relative. We therefore reject Father’s assertion that a parent’s rights can never be terminated if the children are placed with a relative.

¶121 Second, Father takes issue with the court’s residual rights concern. Here, Father points out that, in a permanent custody and guardianship situation, he would retain only four residual rights and duties: “(i) the responsibility for support; (ii) the right to consent to adoption; (iii) the right to determine the child’s religious affiliation; and (iv) the right to reasonable parent-time unless restricted by the court.” See Utah Code § 80-1-102(70)(a). Because the first of these is a duty and the last of these can be restricted by the court, Father asserts that we need be concerned only with the second and the third: Father’s right to consent to adoption and his right to determine the children’s religious affiliation. Father asserts that his residual rights would therefore not allow him to “assert his will” with regard to “basic medical and otherwise personal decisions,” as the juvenile court stated.

¶122 We acknowledge Father’s point, and we note our own recently expressed concern that juvenile courts may, in many cases, be overly concerned about parents retaining residual rights where permanent custody and guardianship arrangements are imposed. See, e.g.In re A.H., 2022 UT App 114, ¶ 55 (questioning “whether—in many cases . . . —a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it”); In re D.S., 2023 UT App 98, ¶¶ 23–24 (explaining why that case was “not one of those cases” in which “fear of a parent’s residual rights might reasonably counsel in favor of terminating” a parent’s rights).

¶123 But we also note, again, that we review best-interest determinations “deferentially,” and we overturn them only if the court “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re D.S., 2023 UT App 98, ¶ 15 (quotation simplified). On a couple of recent occasions, we have reversed juvenile courts’ best-interest/strictly-necessary decisions, even applying this deferential standard, because in our view “the evidence presented at trial did not constitute clear and convincing evidence that termination of [the parents’ rights] would be in the best interest” of the affected children. See In re A.H., 2022 UT App 114, ¶ 38; see also In re D.S., 2023 UT App 98, ¶ 31 (stating that, “[i]n the end, the facts of this case simply don’t add up to strict necessity”). But in other situations—like this one, for the reasons we discuss—the facts as presented at trial lend themselves to more than one possible conclusion. In such cases, our somewhat deferential standard of review will lead us to affirm, because either result will be supported by the facts of the case and will be within the discretion of the court.

¶124 In this vein, we draw an illustrative contrast between the facts of this case and the facts of In re D.S. In that case, the father was incarcerated, and he conceded that he was unable to care for his children and that therefore statutory grounds existed for termination of his parental rights. See 2023 UT App 98, ¶ 13. But he nevertheless resisted termination, asserting that it was not in the children’s best interest for that to occur. Id. ¶ 15. He had maintained regular virtual visits with the children throughout his incarceration—visits that had gone fairly well, although the children sometimes were bored during the visits— and he expressed a desire to “have a stronger relationship with” his children upon his release. Id. ¶ 11. The children were placed with the father’s own mother, who wanted to adopt them. Id. ¶¶ 9, 14. The juvenile court ordered the father’s rights terminated because it viewed adoption by the paternal grandmother as offering “stability,” and because it believed that adoption was necessary to “protect” the children “from [the father’s] desire to have ongoing and frequent visitation” after his release. Id. ¶¶ 13– 14.

¶125 We reversed the termination order. We noted that “there is no indication that [the father’s] continuing relationship with [the children] is harmful to them, rather than merely perhaps inconvenient.” Id. ¶ 24. In particular, we noted that there were no allegations of abuse or neglect regarding the father, and that the children had been “found only dependent—not abused or neglected—as to him.” Id. And we observed that, given “the absence of a ‘harmfulness’ component” to the father’s relationship with the children, there was “no basis for the juvenile court’s view that [the children] need ‘protections against [the father’s] commitment for increased and continued visitation.’” Id. ¶ 27. Relatedly, we noted the absence of any evidence that the father and the grandmother had “the sort of relationship where [the father] would be likely to exercise undue control over custody and care decisions in a guardianship arrangement.” Id. ¶ 32.

¶126 Finally, we placed “almost no stock in” the juvenile court’s reference to the desires of the children, for two reasons. Id. ¶ 29. First, the children were quite young—eleven and six—and the court had made no determination that they were old enough to offer a meaningful opinion as to the differences between adoption and guardianship. Id. Second, and more substantively, “the trial testimony did not support any finding on this issue more specific than that [the children]—quite understandably— wanted to remain in [their grandmother’s] care.” Id. ¶ 30. In particular, “no witness offered any testimony that could support a finding that either of [the children] actually understood and appreciated the distinction between adoption and guardianship, and that, based on that understanding, they preferred adoption.” Id.

¶127 In this case, by contrast, the operative facts are quite different. First, and most importantly, there is a significant “harm” component to this case that was entirely absent in In re D.S. Here, the juvenile court found—after a lengthy adjudication trial—that all four minor children had “been emotionally abused” in a “continuing pattern of emotional maltreatment” by Father and that this “ongoing abusive environment [had] emotionally damaged the children.” Father mounted no substantive appeal from these adjudicated facts, and he agrees that we must take those facts as they are. Moreover, Father failed to take advantage of any of the services provided to him to address his abusive behavior; indeed, the court found—in findings not appealed here—that Father had “made no efforts,” or “only token efforts,” to address and eliminate “the issues of emotional abuse which exist in the home.” At the conclusion of the termination trial, the juvenile court therefore had every reason to believe that Father— if allowed a continuing relationship with the children—would continue his abusive behavior just as he had in the past. Under the particular circumstances of this case, the juvenile court’s concern about residual rights was entirely justified.

¶128 Second, given the emotional abuse issues present here, there is also good reason to believe that Father—if allowed to retain residual rights—would leverage the fact that he still had parental rights to attempt to exercise undue control over custody and care decisions, and would not just limit his role to consenting to adoption and any change in religious affiliation. In the past, Father had attempted to exercise his domineering ways over Oldest Sister, even once “backhand[ing]” her when, as an adult, she declined his demand to clean his house during a visit. And the incident involving Father’s attempt to interfere with Chloe’s medical appointment—even after removal—is well-documented and has already been discussed. We therefore view the court’s finding regarding Father’s propensity to interfere in custody and care decisions as entirely supported by the record here.

¶129 Finally, the court in this case had strong evidence of what the children’s individual desires were. Unlike in In re D.S., all four of the children here, by the conclusion of the trial, were at least fourteen years old, and all of them were able to articulate clear opinions about what their desired outcome was. And all of them told the court, in no uncertain terms, that they wanted to be adopted by Oldest Sister and that they did not want to have any relationship with Father.[14] As noted below, the juvenile court was to give the children’s desires in this regard “added weight.” See Utah Code § 80-3-409(15).

¶130 For all of these reasons, then, we see no reversible error in the juvenile court’s conclusion that, in this case, it was in the children’s best interest for Father’s parental rights to be terminated. Such a decision was within the discretion of the juvenile court and was supported by the record.

  1. Mother’s Arguments

¶131 With regard to Mother, the court initially declined to terminate her rights, instead imposing a permanent custody and guardianship arrangement in favor of Oldest Sister. After consideration of the GAL’s rule 59 motion, however, the court changed course and terminated Mother’s rights along with Father’s, concluding that it had failed to give the proper weight to the children’s stated wishes for adoption.

¶132 Mother challenges the court’s termination order on two grounds. First, she asserts that the court erred by allowing the GAL to submit evidence, in connection with the rule 59 motion, of certain post-trial events. Second, she mounts a substantive challenge, similar to Father’s, to the court’s conclusion that termination of her parental rights was strictly necessary to promote the children’s best interest. We discuss these two arguments in turn.

1

¶133 After oral argument on the GAL’s rule 59 motion, the court allowed the GAL to submit a “Report and Recommendation” that included an affidavit from Brother-in-Law describing events that had occurred after the termination trial. Mother believes that the court erred by considering this “new evidence” in reaching its decision to terminate Mother’s parental rights. We take Mother’s point that evidence of post-trial proceedings should ordinarily play no role in considering whether to grant a new trial. See In re C.L., 2007 UT 51, ¶ 14, 166 P.3d 608 (“A motion for a new trial or amended judgment cannot be based on facts occurring subsequent to trial . . . .” (quotation simplified)). But even assuming, for the purposes of the argument, that the court erred by allowing the GAL to submit this evidence, any such error was harmless here because there is no indication that Brother-in-Law’s affidavit played any role in the court’s decision.

¶134 In its ruling granting the GAL’s motion, the court included an introductory paragraph informing the parties that, before making its decision, it had “review[e]d” rule 59, “the filings and arguments of the parties,” the “prior testimony from the termination trial,” and its “original findings and order.” The court made no specific mention of Brother-in-Law’s post-argument affidavit. And later in its order, when setting forth the actual basis for its decision, it explained that it was amending its initial order because “the children’s wishes or voice were not given proper weight” as mandated by governing statute. It noted again that it had reviewed its own “previous findings and conclusions” as well as “the trial testimony and exhibits,” especially the children’s testimony in which they were “direct in seeking to be adopted” by Oldest Sister. In explaining the substance of its decision, the court made no mention at all of any post-trial events or of Brother-in-Law’s affidavit, and it explained that the basis for its decision rested on entirely different grounds.

¶135 Under these circumstances, any error on the part of the court in allowing the submission of evidence of post-trial events did not affect the court’s grant of the GAL’s rule 59 motion. We therefore see no basis for reversal of the court’s rule 59 decision in the arguably improper submission of Brother-in-Law’s affidavit. See State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237 (“We do not reverse a trial court for committing harmless error.”).

2

¶136 Next, Mother challenges the substance of the court’s decision to terminate her parental rights. Here, we reach the same conclusion we reached in considering Father’s similar challenge: while the juvenile court could potentially have imposed a permanent custody and guardianship arrangement on these facts, we perceive no reversible error in its conclusion that termination of Mother’s rights was strictly necessary to promote the children’s best interest.

¶137 As an initial matter, the court correctly interpreted the statutes governing a child’s stated desires. Under Utah law, “if the minor desires an opportunity to address the juvenile court or testify,” the court “shall . . . allow the minor” to do so. Utah Code § 80-3-108(4)(a)(ii). Moreover, when “determining whether termination is in the best interest of the child,” the court should consider the relevant factors “from the child’s point of view.” Id. § 80-4-104(12)(b). The juvenile court heard from Hannah and Noah, and thereafter correctly noted that they “were straightforward in stating that they wished to be adopted by” Oldest Sister and Brother-in-Law. The court also noted that, when a minor is fourteen years old or older, “the juvenile court shall give the minor’s wishes added weight” and, if the court’s decision “differs from a minor’s express wishes,” then the court must “make findings explaining” its decision. Id. § 80-3-409(15). At the time the court issued its ruling, Hannah was seventeen and Noah was fourteen; the statute thus required the court to give their wishes “added weight.” And that is exactly what the court did. After further analyzing “the testimony and evidence from the trial on the termination petition, with emphasis on the children’s testimony, and with further review” of the relevant statutes, the court was persuaded that its previous order should be amended and that Mother’s parental rights should be terminated. We perceive no error in the court’s procedure in this regard.

¶138 Mother further challenges the court’s substantive decision, and we acknowledge that, with regard to her, certain factors weigh perhaps more in her favor—or, at least, not as strongly against her—than they do with regard to Father. Her relationship with the children was less actively harmful than Father’s, and there is little if any evidence that she tended to attempt to manipulate her relationship with Oldest Sister. We therefore understand, at some level, the juvenile court’s initial inclination to keep her relationship with the children intact, even while terminating Father’s.

¶139 But ultimately, we agree with the State and the GAL that sufficient evidence exists in this record to support the juvenile court’s reconsidered determination to terminate Mother’s rights as well. There was evidence supporting the conclusion that Mother’s relationship with the children was harmful, even if to a lesser extent than Father’s. And Mother adamantly elected to remain in a relationship with Father, an adjudicated emotional abuser who refused to take steps to remedy the situation. We have previously noted that juvenile courts “have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety.” See In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529; see also In re G.B., 2002 UT App 270, ¶ 17, 53 P.3d 963 (upholding a juvenile court’s finding that termination of a mother’s parental rights was in the children’s best interest where the mother continued to foster a relationship with the children’s abusive father, “had no intention of separating from” him, and “continue[d] to deny that any abuse occurred”), cert. denied, 63 P.3d 104 (Utah 2002).

¶140 And the children were adamant that they wanted to be adopted and that they wanted no continuing relationship with Parents, a consideration to which the court was statutorily obligated to give “added weight.” See Utah Code § 80-3-409(15). Mother appears to recognize that the juvenile court’s decision came down to a “weighing of factors,” asserting in her appellate brief that the court “performed an inappropriate weighing of factors.” While a different judge might have weighed the factors differently and opted to keep Mother’s relationship with the children intact, we cannot say that the juvenile court, on this record, committed reversible error by exercising its discretion in the opposite direction.

CONCLUSION

¶141 In sum, Parents have not carried their burden of demonstrating any violation of their constitutional rights. Parents have also not established that either of their trial attorneys provided ineffective assistance. Additionally, we perceive no clear error in any of the challenged factual findings. The juvenile court’s determination that termination of Parents’ parental rights was strictly necessary to advance the children’s best interest was supported by the record, and we perceive no reversible error in the court’s grant of the GAL’s rule 59 motion.

¶142 Affirmed.

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


[1] Hannah and Noah are pseudonyms, which we elect to employ here to avoid continued and potentially confusing repetition of similar-sounding initials.

[2] In cases like this one, where parties are appealing the determination made following a termination trial, “we recite the facts in the light most favorable to the juvenile court findings.” In re S.T., 2022 UT App 130, n.2, 521 P.3d 887 (quotation simplified).

[3] Chloe and Felicity are also pseudonyms.

[4] All four children waived the clergy testimonial privilege to allow Branch President to testify at this and other proceedings throughout this matter.

[5] A second therapist also recalled this incident, later testifying that Father became “aggressive” and was yelling at Therapist about DCFS “framing his family” and how there was a “large conspiracy . . . brought on through DCFS” and “the State of Utah.”

[6] During later testimony, Father testified about the group therapy sessions and, specifically, about the issues he had with Therapist, and he attempted to explain his perception that Therapist did not have “the same values” as Father. When specifically asked whether he wanted a therapist who was a member of The Church of Jesus Christ of Latter-day Saints (LDS), Father stated that he doesn’t “just look at a person on an LDS basis.” He explained, instead, that he wanted the children to have a therapist who agreed with him on the “eternal values or principles” that he “believe[d] govern the universe.”

[7] Mother later asked the court to “set aside” her rule 34(e) plea and requested “that a new trial be ordered to address the allegations” in the State’s petition. See Utah R. Juv. P. 34(e). The basis for this request was that Mother claimed “she was not certain of what a [r]ule 34(e) proceeding involved and the resulting consequences.” The court denied Mother’s request, stating that Mother had “affirmatively waived her right to a trial” and that the court had “confirmed that she understood she was waiving her right to trial.” The court had even gone a step further and “had a colloquy specifically with [Mother] and her counsel wherein she indicated she understood” the implications of proceeding under rule 34(e) “and the resulting findings that would be made as a result of that course of action.”

[8] At the adjudication stage, Mother—the parent who was found to have neglected (as opposed to abused) the children—did not attempt to invoke this religious-based statutory exception. Nor does she invoke it here on appeal. Accordingly, as far as we are aware, this exception is not at issue in this case.

[9] 9. As noted, Parents do not challenge the determination that statutory grounds for termination of their parental rights were present in this case. But Parents do assert, in their briefs, that the State interfered with their “right to make value-based decisions regarding the upbringing” of the children. This argument is not independently developed, and—especially in light of Father’s attorney’s concession at oral argument—we do not interpret it as a frontal attack on the juvenile court’s adjudication findings. However, to the extent it is intended as such, we reject that challenge not only because it is inadequately briefed but also because any challenge to the adjudication findings needed to have been made in an appeal from the adjudication order. See In re D.G., 2014 UT App 22, ¶ 5, 319 P.3d 768.

[10] In addition to these two arguments, Mother complains—in passing, during the “constitutional” section of her brief—that the court improperly “utiliz[ed]” her “continued association with Father as evidence that she had failed to make adequate effort to adjust her conduct to substantially correct the circumstances that led to” the children’s removal. But Mother does not develop this argument; in particular, she makes no attempt to explain how this argument might have constitutional dimension. As noted, infra ¶ 139, it is not improper for a juvenile court to take into account, in making a termination decision, the fact that a parent insists on continuing a relationship with an abusive person.

[11] The rule also seemingly had little to no impact on Mother’s therapy sessions with the children. Mother testified that she only remembered being told about the children’s rules during the first two therapy sessions and, from her recollection, the children “brought all those things up” anyway.

[12] We also wonder whether there was any state action involved here at all, given that the rule in question was envisioned and requested by the children themselves. See In re adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215 (stating that the constitution protects “against state action,” not against “the actions of private parties”). But this issue was not briefed by the parties, and we therefore offer no opinion on the subject.

[13] While Parents couch their claim, at times, in the language of “reasonable efforts,” we note that their claim is not a traditional challenge to a juvenile court’s reasonable efforts determination. In particular, Parents do not directly argue that either of the two things they challenge—the requirement that they participate in family therapy with Therapist or the no-talking-about-religion rule—were not part of a “fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985 (quotation simplified).

[14] In this case, Parents make no argument that any of the children were too young, or were for any other reason incompetent, to offer trial testimony about their desires regarding placement, adoption, and their ongoing relationship with Parents.

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Lamb v. Lamb, 2024 UT App 16 – divorce, custody, business, home equity

2024 UT App 16

THE UTAH COURT OF APPEALS

JOSEPH EARL LAMB,

Appellee,

v.

SONYA ELIZABETH LAMB,

Appellant.

Opinion

No. 20210787-CA

Filed February 8, 2024

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 174904728

Mary Deiss Brown, Attorney for Appellant

Gregory G. Skordas, Gabriela Mena, and Allison R.

Librett, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 Joseph Earl and Sonya Elizabeth Lamb’s divorce was decided at a bench trial.[1] As relevant here, Joseph was awarded custody of their children, ownership of a family business, and half the equity of the marital home. Sonya now challenges the court’s custody determination and the award of the business. She also challenges the manner in which the court determined the equity in the marital home. We affirm the district court’s rulings in all aspects.

BACKGROUND[2]

¶2        Joseph and Sonya married in 2007 and separated in July 2017. We address separately each of the district court’s determinations with which Sonya takes issue.

The Custody of the Children

¶3        Joseph and Sonya have three children, all of whom were minors when they divorced in August 2021. In November 2017, at a hearing for temporary orders, Sonya’s counsel told the court that Sonya had been the children’s primary caregiver “until recently.” Sonya also admitted that she was arrested in July 2017 and was facing charges for possession and use of drugs, but she asserted that she had “taken responsibility,” had “stopped using drugs,” was “sober and more than capable of caring for the children and continuing on as their primary caregiver,” and had “been attending Narcotics Anonymous and Al-Anon meetings.” Sonya asserted that Joseph had a “serious drug addiction problem.” Joseph claimed that Sonya had vacated the marital home shortly before her arrest, and he revealed that he obtained a protective order against her. The court acknowledged the allegations both sides made against the other but noted that Joseph currently had the children in his care and was living in the marital home. The court then determined that Joseph should maintain “custody of the children on a temporary basis.”

¶4        Apparently, the children remained in the temporary custody of Joseph until the parties’ divorce trial, where the court received the testimony of a “reunification therapist” (Family Therapist), who had been hired by the parties after the custody evaluator had been “unable to perform an evaluation due to the children spending less than minimum time” with Sonya.

¶5        Based on the testimony of Family Therapist, which we recount when relevant in our analysis below, the court found that “unification” between Sonya and the two older children was “lacking” because of acrimonious relationships. The court noted that Family Therapist had testified that progress in reunification therapy would “influence what possible custody” Sonya might have in the future relative to the older children. The court determined that it was “in the best interest of the children that reunification therapy” continue to allow Sonya the opportunity “to reunify her relationship with the children.”

¶6        Accordingly, the court found that it was in the children’s best interest that Joseph be “awarded sole physical custody and final decision making authority,” with both parties being awarded joint legal custody. With regard to the youngest child, the court awarded supervised parent-time to Sonya one night a week. The court awarded Sonya no parent-time with the older two children. The court noted that supervised parent-time for Sonya would “be flexible” and might “increase after the current reunification issues” and Sonya’s “medical issues” were addressed. The court also stated that Sonya’s “non-use of cannabis” needed to be verified because marijuana use was “a contributing factor” that brought on her mental health episodes.

The Business

¶7        During their union, the parties were financially supported, at least in part, by a business that distributed supplies to gas stations. During the divorce proceedings, Joseph maintained that he was in the process of purchasing the business from his father but that he did not have the money to pay for it. Joseph explained that he drew a salary for his work with the business. In contrast, Sonya maintained that she and Joseph agreed to buy the business in 2010 and that they completed paying off the business in 2016. Sonya claimed that she and Joseph signed a document “to take over the business” but that she did “not have the document.” Sonya did produce a different document that explicitly stated the business was being sold only to Joseph.

¶8        The district court awarded the business to Joseph, along with all its debts and obligations. In addition, the court, apparently recognizing that the business was possibly still owned by Joseph’s father, ordered that any money Joseph borrowed against the marital home to purchase the business would “not be used to reduce the total equity in the home” so as to reduce Sonya’s share of the home’s value. In making this award to Joseph, the court was clear that it was basing its decision “on the testimony” provided by Joseph.

The Marital Home

¶9        Based on a Zillow estimate[3] provided by Sonya, the court determined the value of the marital home to be $998,659, but the equity in the home was reduced by mortgages and liens on the property. Joseph testified that three mortgages, totaling $402,000, were on the property.[4] And the home was additionally encumbered by eleven liens. Two of these liens, totaling $2,414, were attributed to Sonya and Joseph. The remaining nine, totaling $256,521, were tax liens and civil judgments incurred by the previous owner of the home.[5]

¶10      The court received evidence that when Joseph and Sonya purchased the home in November 2009, it was subject to some existing debt. Joseph testified as follows:

Counsel: “Was there anything particular about that purchase [of the home]?”

Joseph: “We didn’t have the credit or the means to get into a home at the time, so my brother is a real estate agent and he’s good friends with [the previous owner] and said, ‘Hey, this house is available. If you like it, I can probably get you into it.’ And so we took him up on that and (inaudible) that we had to take on (inaudible).”

Counsel: “So there were other debts on that house when you purchased it?”

Joseph: “Yes        I didn’t know about all of them at the time, but yes.”

Counsel: “What are those debts?”

Joseph: “There’s a lot of tax liens from [the previous owner] throughout the years. There’s a couple of (inaudible) from Sonya and I, medical bills that weren’t paid. . . .”

Counsel: “And have you paid off the tax liens? The liens on the house?”

Joseph: “No.”

Thus, in a somewhat unusual arrangement, the parties appear to have purchased the home subject to certain liabilities, even if they did not know the precise extent of those liabilities. Presumably, these liabilities would have been offset by a reduction in the purchase price, making the home more affordable.

¶11      Adding the mortgages and liens together for an amount of $660,935, the court determined that equity in the home was $337,724. The court ordered Joseph to pay Sonya $168,862 as her share of that equity.

¶12      Sonya appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Sonya identifies multiple ways in which she believes the district court erred. But “[f]or the sake of brevity,” we “consolidate these grounds” and “set out in the opinion only so much . . . as we deem necessary to a decision of the questions involved herein.” Patterick v. Carbon Water Conservancy Dist., 145 P.2d 503, 505 (Utah 1944), overruled on other grounds by Timpanogos Plan. & Water Mgmt. Agency v. Central Utah Water Conservancy Dist., 690 P.2d 562 (Utah 1984).

¶14      Sonya first contends that the district court abused its discretion in making custody and parent-time decisions because it lacked sufficient information to make those decisions. “We review custody determinations deferentially, and so long as the district court’s discretion is exercised 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.” Kingston v. Kingston, 2022 UT 43, ¶ 20, 532 P.3d 958 (cleaned up).

¶15      Sonya next contends that the district court’s findings were “entirely inadequate to explain” its reasoning for awarding ownership of the business to Joseph. “We review the legal sufficiency of factual findings—that is, whether the trial court’s factual findings are sufficient to support its legal conclusions— under a correction-of-error standard, according no particular deference to the trial court.” Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262 (cleaned up).

¶16      Lastly, Sonya argues that the district court’s “procedures and decisions regarding the division of equity in the marital home were illogical and manifestly unjust.” “Determining and assigning values to marital property is a matter for the trial court, and an appellate court will not disturb those determinations absent a showing of clear abuse of discretion.” Mintz v. Mintz, 2023 UT App 17, ¶ 12, 525 P.3d 534 (cleaned up), cert. denied, 531 P.3d 730 (Utah 2023).

ANALYSIS

  1. A Note on Briefing

¶17      Sonya’s briefing is plagued by significant deficiencies and does not comply with the Utah Rules of Appellate Procedure for appropriate briefing. First, excluding the cases cited for the standards of review, Sonya cites only a single case in her opening brief, and she does so in a perfunctory fashion—making only a shallow attempt to explain its relevance to the issues. Sonya continues this trend in her reply brief, where she cites no cases at all. In this regard, she falls far short of appellate expectations. “A party may not simply point toward a pile of sand and expect the court to build a castle. In both district and appellate courts, the development of an argument is a party’s responsibility, not a judicial duty.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248; see also Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); id. R. 24(b)(3).

¶18      Second, in her statement of the case, Sonya fails to include a single citation to the record. This is in contravention of our clearly stated rule. See Utah R. App. P. 24(a)(6) (“The statement of the case must include, with citations to the record: (A) the facts of the case, to the extent necessary to understand the issues presented for review; (B) the procedural history of the case, to the extent necessary to understand the issues presented for review; and (C) the disposition in the court or agency whose judgment or order is under review.” (emphasis added)). We note that Sonya somewhat more adequately cites the record in the argument section of her brief, but that is not what the Utah Rules of Appellate Procedure require, and by ignoring the rules to suit her briefing preferences, she does little to bolster judicial efficiency.[6]

¶19      We point out these deficiencies not to ridicule, disparage, or shame counsel, but to provide warning that future briefing of this nature will likely be deemed inadequate and that any arguments on the merits may not be substantively considered by this court. This court receives hundreds of briefs each year. They vary in quality and in their adherence to the rules. We recognize that members of the bar have a lot on their plates and occasionally miss a typo or overlook a citation. But wholesale disregard of briefing rules is quite beyond the pale and can have unwelcome consequences for attorneys (and their clients) who choose this risky path. See Ostler v. Department of Public Safety, 2022 UT App 6, ¶ 27, 505 P.3d 1119 (“We . . . retain discretion to not address an argument that is inadequately briefed.” (cleaned up)); accord State v. Schwenke, 2007 UT App 354U, para. 2; State v. Garner, 2002 UT App 234, ¶¶ 8–13, 52 P.3d 467. And we hasten to point out that the risk of ignoring briefing requirements should come as no surprise to any attorney in Utah owing to our multiple references to the issue over the years. See Trees v. Lewis, 738 P.2d 612, 612–13 (Utah 1987) (stating that the merits of a dispute need not be reached if an appellant “has not supported the facts set forth in [a] brief with citations to the record” as required by rule 24(a)(6) of the Utah Rules of Appellate Procedure); State v. Price, 827 P.2d 247, 249 (Utah Ct. App. 1992) (“We have routinely refused to consider arguments which do not include a statement of the facts properly supported by citations to the record.”); Koulis v. Standard Oil Co. of Cal., 746 P.2d 1182, 1184 (Utah Ct. App. 1987) (“If a party fails to make a concise statement of the facts and citation of the pages in the record where those facts are supported, the court will assume the correctness of the judgment below.”). That we have exercised our discretion to address the merits of the issues on appeal here should not be taken as an imprimatur sanctioning inadequate briefing but as a conduit to raise awareness of the risk of ignoring the rules.

¶20 We take this occasion to recall the advice offered by our supreme court several decades ago:

If the questions involved in a case are of sufficient importance to justify asking this court to decide them, they are worthy of the careful consideration of counsel presenting them. It is the duty of attorneys practicing in this court to present to the court the authorities supporting their views and to assist the court in reaching a correct conclusion.

State v. Thomas, 1999 UT 2, ¶ 13, 974 P.2d 269 (cleaned up). With that, we remind counsel of their responsibility to assist the judiciary in advancing jurisprudence through diligent advocacy, adherence to our rules, and competent representation.

  1. Custody and Parent-Time
  2. Disclosure

¶21      Sonya argues that the district court erred in admitting Family Therapist’s testimony when Joseph had not timely disclosed him as an expert witness pursuant to rule 26 of the Utah Rules of Civil Procedure, which requires disclosure “within 14 days after the close of fact discovery.” Utah R. Civ. P. 26(4)(C)(i). Sonya’s briefing on this point leaves much to be desired. She entirely ignores what happened at trial, instead substituting her own retrospective take on what she believes should have happened without attempting to explain why her timeliness argument should now be considered. Providing some persuasive caselaw—which may or may not exist—would have gone far to support her argument. But like the rest of her briefing, this part is inadequate.

¶22      A review of the record shows that Sonya did not object to Family Therapist’s testimony on the grounds of untimely disclosure. Instead, Sonya argued that Family Therapist had “far exceeded any kind of mandate,” that he had not signed confidentiality waivers, and that allowing his testimony created patient privacy and ethical violations. In her objection at trial, rule 26 was mentioned only in passing and not in a way that would suggest she was objecting on timeliness grounds. It certainly would not have been clear to opposing counsel that a rule 26 timeliness issue was being raised such that he would have known to argue a harmlessness or good-cause defense for the failure to disclose, which would have been an easy argument to make given that both Joseph and Sonya had jointly retained Family Therapist and Sonya knew about Family Therapist several years before trial. And it would not have been clear to the district court that it was being asked to rule on a timeliness-based objection. For these reasons, Sonya did not preserve any such objection for appellate review. See State v. Centeno, 2023 UT 22, ¶ 57, 537 P.3d 232 (“It is well established that we will not address the merits of an unpreserved issue absent a showing that an exception to the preservation rule applies.”).

  1. Hearsay

¶23 Sonya additionally argues that Family Therapist’s testimony, insofar as he testified as a fact witness, “was inadmissible hearsay and based entirely on his conversations with the parties and their children as their reunification therapist.” Sonya’s hearsay argument is difficult to follow and poorly briefed. Instead of analysis in support of her hearsay argument, she provides scant and unsupported assertions.

¶24      Sonya objected below to Family Therapist’s testimony on the grounds that it was hearsay. But the court ruled that it was not hearsay, concluding that Family Therapist’s testimony was not offered “for the truth of the matter asserted.” Rather, the court ruled that the “focus of [the] questioning” was, first, to allow the court “to find out how [the children were] doing, if they’re capable of going forward” and, second, to identify the present “obstacles” to “structuring visitation with [Sonya].” On appeal, Sonya makes no attempt to engage with the court’s reasoning, instead limiting her analysis to a blanket assertion that “it [was] evident” Family Therapist was “allowed to testify as an expert, offering hearsay, opinions and recommendations in [a] manner that simply is not permitted by the Rules of Civil Procedure.” Such superficial and undeveloped argument is simply not persuasive, most especially because it does not address the alleged error in the court’s reasoning. It is well settled that appellants who fail to “address the district court’s reasoning” also fail to carry their “burden of persuasion on appeal.” See Federated Cap. Corp. v. Shaw, 2018 UT App 120, ¶ 20, 428 P.3d 12; see also Spencer v. Spencer, 2023 UT App 1, ¶ 27, 524 P.3d 165; Bad Ass Coffee Co. of Haw. v. Royal Aloha Int’l LLC, 2020 UT App 122, ¶ 48, 473 P.3d 624.

  1. Custody Factors

¶25 Sonya next argues that the court did not address the custody factors outlined in section 30-3-10 of the Utah Code, making its custody findings insufficient. More specifically, Sonya argues that the court’s factual findings were deficient due to the court’s reliance on the testimony of Family Therapist in making those findings.

¶26 Section 30-3-10 states that in “determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider . . . other factors the court finds relevant,” including factors for each parent articulated in the code. Utah Code § 30-3-10(2) (emphasis added). These factors a court may consider are “not on equal footing.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Instead, “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. (emphasis added). “And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806. Thus, to “ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).

¶27      Here, the factors about which the court received significant evidence concerned Sonya’s ability to function as a parent, which the court received as testimony from Family Therapist. As we have explained above, Sonya’s challenges to the admissibility of Family Therapist’s testimony fail, and we accordingly conclude that the district court acted well within its discretion in relying on his testimony.

¶28      Regarding Sonya’s ability to parent the two older children, Family Therapist testified that they were “very angry” with Sonya and “announced that they would never see or talk to her again.” Their anger was due to their religious sensibilities and Sonya’s announcement that she was pregnant by a man other than their father during the pendency of the divorce.

¶29      With regard to Sonya’s parenting, Family Therapist stated that the youngest child was very frightened after “his last visit with [Sonya] when she was struggling psychiatrically.” Moreover, Family Therapist also testified the youngest child was beginning to see himself as Sonya’s “partner,” resulting in the child “becoming parentified.”[7]

¶30 Family Therapist further indicated that while he was unaware of Sonya’s “current condition or functioning,” Sonya had been “hospitalized and diagnosed with some issues.” He asserted that “safety” needed to be addressed, meaning that Sonya required a psychiatric evaluation to demonstrate that her “situation” was “under control.” He also indicated that Sonya needed to work on “being forthright with medications.” Sonya, by her own admission, had “suffered an isolated manic episode” related to bipolar disorder and “called the police for assistance” because she was suffering from “visual and auditory hallucinations.”

¶31    Sonya’s briefing on this point misses the mark because it entirely relies on the assumption that Family Therapist’s testimony was inadmissible, an assumption we conclude is without foundation. See supra ¶¶ 21–24. She does not explain why, in light of Family Therapist’s admissible testimony, the court’s consideration of the statutory custody factors was insufficient. Sonya’s briefing makes no attempt to explain why the court is not allowed to rely on the evidence it receives when making custody decisions.

¶32 Moreover, Sonya does not identify any “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, as to the other factors in section 30-3-10 that the court received but left unaddressed. Instead, her briefing advances an argument that is entirely conclusory and unsupported by record citation or legal authority:

Although § 30-3-10 gives broad discretion to the court as to the relevance and appropriate weight to give each factor, the district court in this case simply did not have any information that would allow it to make findings as to most of the statutory factors. For instance, the district court did not know who the primary caretaker of the children during the marriage was. The district court did not know anything about the marriage. The district court would not permit any testimony relevant to Joseph’s moral character or his history of drug abuse and sexual proclivities. The Court would not allow any testimony as to Joseph’s inability and unwillingness to co-parent with Sonya. At the end of the day, the Court simply sidestepped its responsibility as an independent factfinder and deferred to [Family Therapist].

This might be a good argument if Sonya had supported it with citations to the record and to legal authority. As this argument stands before us, we are unable to verify what it asserts. But we suspect that Sonya might be indulging in hyperbole here. Indeed, Sonya’s assertion that “the district court did not know anything about the marriage” is patently false. Our review of the record indicates that the court, in fact, knew quite a bit about the marriage, such as its financial situation, issues related to the children, and the problems that led to its demise, to name just a few topics within its familiarity. And with regard to Joseph’s alleged use of illegal drugs, we found only one instance (subsequently echoed by Sonya’s attorney) in the record where Sonya asserted before the district court that Joseph had a “cocaine habit.” But the district court was free to “disregard such testimony if it [found] the evidence self-serving and not credible,” since the factfinder “is in the best position to judge the credibility of witnesses.” See Clark v. Clark, 2023 UT App 111, ¶ 37, 537 P.3d 633 (cleaned up). An isolated allegation made in passing certainly does not amount to “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, especially given the district court’s role as the factfinder to judge the credibility of witnesses, see Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751. And as to the other statutory custody factors that Sonya asserts the court left unaddressed, she has not pointed us to any significant evidence that the court received with respect to those factors.

¶33      Thus, unlike the situation in Twitchell, where we concluded “that the district court exceeded its discretion by failing to include in its findings any discussion of the evidence relating to the abuse allegations against [the mother], her alleged neglect of [the child,] and her moral character, as well as the effect that evidence had on its best-interest analysis,” see 2022 UT 49, ¶¶ 22–23, 25, here there simply wasn’t significant evidence presented regarding section 30-3-10’s other custody factors. This lack of evidence—insofar as there was a lack—was not the court’s fault; it was Sonya’s fault for not presenting it. After all, a court cannot be faulted for failing to consider evidence that was not presented to it. In contrast, given the substantial evidence the court did receive about the serious mental health issues Sonya faced, we conclude that the district court did not abuse its discretion in its consideration of the statutory factors when determining that awarding physical custody to Joseph was in the best interest of the children.

¶34 In sum, Sonya has failed to show that the district court abused its discretion in accepting and relying on the testimony of Family Therapist in making custody determinations or that the district court did not properly address the statutory factors in determining custody of the children.

III. Ownership of the Business

¶35      Both parties agree that the district court concluded that the business was not a joint marital asset. The district court awarded the business to Joseph “[b]ased on [Joseph’s] testimony.” Along with awarding the business to Joseph, the court stated that Joseph was “responsible for payment of the purchase price of the business.”

¶36      Sonya’s briefing on this point is challenging because it consists largely of recounting financial matters pertaining to the marriage but unrelated to the ownership of the business. She then asserts, with no discernible effort to explain why, that the “findings/conclusions were entirely inadequate to explain the Court’s reasoning for giving ownership” of the business to Joseph. Her argument is difficult to follow, but its essence, insofar as we can tell, appears to be that the court erred in believing Joseph’s testimony over hers.

¶37 We disagree with Sonya that the court erred in crediting Joseph’s testimony regarding the ownership of the business over Sonya’s. Again, the court stated in its factual findings that its award of the business to Joseph was “[b]ased on [his] testimony.” In making this credibility determination, the court acted well within its discretion. “[W]here there exists evidence sufficient to support a court’s rulings regarding a divorcing couple’s finances, that ruling will be upheld on appeal, even if evidence was presented that might have cut the other way.” Clarke v. Clarke, 2023 UT App 160, ¶ 27. This is because “the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony. Even where testimony is uncontroverted, a trial court is free to disregard such testimony if it finds the evidence self-serving and not credible.” Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751 (cleaned up); see also Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“[I]t is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).

¶38      Here, the district court was in the best position to judge the credibility of the parties. It clearly found Joseph’s testimony regarding the ownership of the business to be more credible. Sonya has provided no reasoned argument—apart from her assertion that she disagrees with it—as to why the district court’s conclusion that the business was not marital property was erroneous. Accordingly, Sonya has failed to meet her “burden on appeal to show that no reasonable person would take the view adopted” by the district court, and we therefore conclude that the district court did not err in awarding the business, along with its liabilities, to Joseph. See Ouk, 2015 UT App 104, ¶ 14.[8]

  1. Equity in the Marital Home

¶39      Sonya’s final claim is that the district court abused its discretion in dividing equity in the marital home. “In divorce actions, a district court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (cleaned up). Thus, in such proceedings,

we will reverse only if (1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the factual findings upon which the award was based are clearly erroneous; or (3) the party challenging the award shows that such a serious inequity has resulted as to manifest a clear abuse of discretion. Because we can properly find abuse only if no reasonable person would take the view adopted by the trial court, appellants have a heavy burden to show that an alleged error falls into any of these three categories.

Id. (cleaned up).

¶40      Sonya’s claim focuses on three aspects of the court’s valuation of the home: (1) the mortgage amount, (2) the use of the Zillow estimate, and (3) the amount of the liens on the home. We address each in turn.

¶41      The Mortgage Amount. Sonya complains that the district court, based on Joseph’s testimony, should have used $298,000 as the amount owing on the mortgages rather than $402,000, an adjustment that would have benefitted her by increasing the equity she would have received. “Generally, the marital estate is valued at the time of the divorce decree or trial. However, in the exercise of its equitable powers, a trial court has broad discretion to use a different date, such as the date of separation, when circumstances warrant. If the trial court uses a date other than the date of the divorce decree, it must support its decision with sufficiently detailed findings of fact explaining its deviation from the general rule.” Rothwell v. Rothwell, 2023 UT App 50, ¶ 39, 531 P.3d 225 (cleaned up), cert. denied, 537 P.3d 1011 (Utah 2023). In response to Sonya’s motion for amended findings, the court explained, “[Joseph’s] statement of the mortgage balance of $298,000 was referring to the total amount of all three (3) mortgages. The Court also took that into evidence taking into account that it was [Joseph’s] best estimate according to what his monthly mortgage payments are and how much was deducted from the principal each month.” We understand this to mean that the court took into consideration that it was through Joseph’s extraordinary post-separation payment efforts that the mortgage amount had been reduced. Moreover, Sonya concedes in her reply brief that it was within the district court’s discretion to use the earlier mortgage total. Accordingly, we see no abuse of discretion in the court’s use of the date of the separation to determine the amount of the mortgages.

¶42      The Zillow Estimate. Sonya next complains that the home should have been valued at about $260,000 more than was indicated by the Zillow estimate the court used. The glaring problem with this aspect of Sonya’s complaint is that it was her counsel’s idea to use the Zillow estimate. In open court, her counsel looked up the estimate and announced it to the court. And the court proceeded to base its calculations on the very data Sonya’s counsel supplied. We simply will not countenance Sonya’s assertion that the district court erred in proceeding to use the estimate that Sonya herself, through counsel, provided. Sonya invited any error in this regard. See Somer v. Somer, 2020 UT App 93, ¶ 14, 467 P.3d 924 (“Where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court does not consider the party’s objection to that action on appeal.” (cleaned up)). In her briefing on appeal, Sonya points to nothing in the record that would have allowed the court to value the home using anything other than the Zillow estimate. Sonya does not challenge that the court acted on the only information it had and that Sonya herself provided. Accordingly, “given the absence of any expert financial testimony, . . . the paucity of assistance the parties offered the court,” and the representations made by Sonya’s counsel regarding the marital home’s value, we conclude that “the court in this instance made findings within its discretion and supported by the evidence it was given.” Clarke v. Clarke, 2023 UT App 160, ¶ 55.

¶43      The Liens. Sonya argues that the district court abused its discretion in counting third-party liens against the equity in the home. Given the evidence the court received, we see no error on the part of the court in this regard. Indeed, there was evidence to support the court’s determination that the third-party liens should be included in the calculation of the home’s equity. Joseph testified that when he and Sonya purchased the home, they did so knowing that they were assuming responsibility for some of the previous owner’s debts. This is an admittedly odd arrangement, but Joseph testified that they were willing to accept it because they were not in a financial position to purchase the home otherwise. Sonya offered no testimony or other evidence to contradict Joseph’s assertion, and she still points to nothing presented at trial that contradicted this evidence. Accordingly, we conclude that the factual findings that included the liability associated with the third-party liens were not clearly erroneous and that the court did not abuse its discretion in calculating the home’s equity.

CONCLUSION

¶44      Sonya has not demonstrated that the district court abused its discretion in its custody determination, in awarding the business to Joseph, or in its division of equity in the marital home. Affirmed.

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


[1] Because the parties share a surname, we refer to them by their given names.

[2] As addressed below, neither party’s briefs included sufficient citations to the record. This shortcoming has necessitated us combing the record to establish some semblance of a background, something we are not obligated to do. See State v. Wright, 2019 UT App 66, ¶ 47 n.6, 442 P.3d 1185 (explaining the parties’ duty to cite the record in appellate briefs), cert. denied, 456 P.3d 391 (Utah 2019). Accordingly, our recitation of the facts is necessarily minimal as we limit it to what is essential to resolve the issues on appeal.

[3] Neither party produced an appraisal of the home or an appraisal witness at trial, leading the court to ask the parties, “Does anybody have any valuation [of the home] at all?” Sonya’s counsel answered, “Well, we could do it [with] Zillow.” At this point, while in court, Sonya’s counsel looked up the value and reported, “According to Zillow as of today, the estimated value is $998,659.” No objection was lodged at trial to the court receiving this information. “Zillow is a commercial website that provides, among other things, an estimated market value for many residential properties.” Chaudry v. Chaudry, No. 1794, 2021 WL 2910977, at *9 n.7 (Md. Ct. Spec. App. July 12, 2021).

[4] This number reflected the amount owing at the time of separation. At the bench trial, Joseph testified that the amount was currently about $298,000.

[5] Joseph’s counsel provided a LexisNexis report as evidence of the liens on the home. This report was admitted as evidence with no objection.

[6] Nor did Joseph’s counsel provide a single citation to the record in his brief. This shortcoming is most unhelpful. While an appellee is not required to file a brief, see, e.g.AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76, we observe that if a brief is filed, it would behoove counsel to provide record citations. After all, and at the risk of stating the obvious, record citations are required because in their absence it’s difficult, and at times impossible, to figure out what the parties are referencing.

[7] “Parentification is often referred to as growing up too fast. Typically, it occurs when a child takes on parental responsibility for their siblings or even their parents, taking care of a sibling or parent physically, mentally, or emotionally. This can damage a child’s mental well-being and lead to long-term mental health conditions such as depression and anxiety.” Amber Felton, What Is Parentification, Web MD, https://www.webmd.com/parenting /what-is-parentification [https://perma.cc/N6TT-Y7QN].

[8] Sonya also argues that the district court violated her constitutional due process rights by its “ongoing interference” with her counsel’s presentation of her case. Quite frankly, apart from a litany of complaints about the court requiring counsel to keep her questioning relevant, the contours of her argument on appeal are difficult to discern, and she fails to cite a single case in support of the argument. Accordingly, we decline to consider her due process argument because it is inadequately briefed. See Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); see also Orlando Millenia, LC v. United Title Services of Utah, Inc., 2015 UT 55, ¶ 30 n.3, 355 P.3d 965 (“The briefing on this claim . . . is inadequate. [The appellant’s] briefing on this issue fails to cite any authority and makes no attempt to connect the law to the facts of this case.”).

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A.W. v. Marelli – 2024 UT App 8 – infliction of emotional distress

A.W. v. Marelli – 2024 UT App 8

THE UTAH COURT OF APPEALS

A.W., Appellant, v.  MILLIE MARELLI, Appellee.

Opinion

No. 20220207-CA

Filed January 19, 2024

Third District Court, Salt Lake Department

The Honorable Andrew H. Stone

No. 190902075

Michael W. Young, Alan S. Mouritsen, and

Adam Bondy, Attorneys for Appellant

Emily Adams, Freyja Johnson,

Hannah K. Leavitt-Howell, and James I. Watts,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 AW[1] alleges that when, as a teenager, she accused her stepfather of sexual abuse, her mother, Millie Marelli, maintained the abuse did not occur and told AW to never speak of it again. But speak of it AW did—to her biological father, who reported the abuse to authorities. Ultimately, AW was removed from Marelli’s home, and not long thereafter she cut off all contact with Marelli. When Marelli allegedly persisted over a number of years in making unwelcome contact, AW sued Marelli, claiming negligent and intentional infliction of emotional distress as well as negligent sexual abuse. Marelli moved for summary judgment on all claims, which the district court granted on the basis that AW failed to establish the required quantum of proof on each claim. AW appeals, and we affirm.

BACKGROUND[2]

¶2        AW alleges that in late 2008 or early 2009—when she was twelve years old—her stepfather (Stepfather) sexually abused her. When Marelli was hospitalized for several days while undergoing a medical procedure, she left AW in the care of Stepfather. According to AW, she became scared of the dark and Stepfather invited her to sleep in his bed. Once in the bed, Stepfather put his hand inside her underwear and began touching her genitals.

¶3        Shortly thereafter, AW disclosed the incident to Marelli. Marelli asked Stepfather what had happened, and he said that he awoke with his hand on AW and immediately withdrew it. He explained to AW that it was an accident and apologized. AW says Marelli and Stepfather told her the abuse never occurred and not to speak of it again. Marelli did not report the incident to authorities. Approximately one week later, AW told her father (Father) about the incident. Father immediately filed a complaint with the Division of Child and Family Services (DCFS) and sought a protective order against Stepfather. DCFS made a supported finding that Stepfather presented a credible threat to AW’s safety, but DCFS did not find evidence to support a finding that Marelli failed to protect AW. Father was eventually awarded sole legal custody of AW.

¶4        In a sworn declaration, Marelli’s neighbor (Neighbor) stated that in late 2007 or early 2008, prior to the abuse AW alleged, she informed Marelli of an incident between her young daughter and Stepfather. Neighbor explained that her daughter came home from playing at Marelli’s house with writing and pictures on her buttocks in the handwriting of an adult. When she asked her daughter about it, her daughter said that she and Stepfather were playing a game where the winner wrote on the other person. Neighbor spoke with Marelli about it, and Marelli “became defensive,” denying Stepfather had “anything to do with it.” Marelli blamed Neighbor’s daughter for it, saying she had “offered herself” to Stepfather. Neighbor said her instincts told her to stop allowing her daughter to play at Marelli’s house.

¶5        Since losing custody of AW in 2009, Marelli and AW have not seen one another outside of some initial court-ordered therapy sessions and a few brief encounters. AW claims that Marelli’s alleged “denial [of the abuse] and victim blaming behavior are significant sources of [her] psychological disorders.” Over the past decade, Marelli has continued to contact AW by sending letters, birthday gifts, and Facebook messages. AW claims she has repeatedly expressed her wishes not to have any contact at all. In Facebook messages from 2011, AW responded to Marelli with “STOP TALKING TO ME UNTIL U GET RID OF [STEPFATHER]!!!!!!!” and “STOP IT I WILL BLOCK THIS I AM NOT AFRAID TO SO STOP!!”

¶6        AW submitted many examples of communication she received from Marelli over the course of more than ten years. Those communications included handwritten letters and some photos with messages written on them, such as the following, which we present unedited for grammatical errors:

  • [AW] give your mom a call with [heart drawing] always mom.
  • I am sorry that you have forgotten the moments when you had with [Stepfather] to be your dad. I hope someday you will remember with all my heart and soul I loved you and will always love you because you are my girly for eternity.
  • We all make mistakes in life, it is what we learn from them is the most important. Forgive yourself, forgive me I am truly sorry for all the many tears & fears you went through without your mothers warmest embrace . . . with love mom.
  • [Stepfather] sure misses being your dad [heart drawing] be kind be forgiving be of great courage.
  • Oh I miss my little girl that is all grown up. I love every min every hour every dam week month & year of your life. I hope to enjoy and embrace my lovely daughter again to look into your loving eyes and find you again. With love Mom.
  • All my children was mislead away from the true. I have been told recently that I am not in reality but you see Reality isn’t the truth.

¶7        Some of the photos sent to AW included pictures of both Marelli and Stepfather. Marelli also sent several publications and transcripts of public addresses from her religious leaders covering a wide range of topics.

¶8        AW also asserted that Marelli made two unwanted visits to her. The first occurred on AW’s sixteenth birthday, when Marelli went to her school. The second was on her seventeenth birthday, when Marelli went to AW’s house.

¶9        In 2019, AW commenced the present action against Marelli, claiming intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), and negligent sexual abuse. Marelli moved for summary judgment on the three claims. Shortly after filing the summary judgment motion, Marelli sent AW a second box of letters, religious publications, and some of AW’s old toys. AW argues that even though service of the complaint put Marelli on notice that her conduct caused AW distress, she nonetheless sent AW the box full of additional communication. AW filed a supplemental opposition to the motion, arguing that Marelli sent the communication with knowledge that AW did not want any contact with her. Marelli moved to strike the supplemental opposition, arguing that the Utah Rules of Civil Procedure allow for only supplemental authority not supplemental facts.

¶10      The district court allowed the supplemental opposition “in the interest of justice” and considered it in its decision. The district court granted Marelli’s motion for summary judgment on all three of AW’s claims. On the IIED claim, the court concluded that Marelli’s conduct was not objectively outrageous. The court concluded that the NIED claim failed because AW did not show that Marelli’s conduct objectively amounted to the “type of conduct ‘especially likely’ to cause severe and unmanageable emotional distress.” Finally, on the negligent sexual abuse claim, the court concluded there was no support in the record that Stepfather had a history of inappropriate sexual behavior with children of which Marelli was aware or that Marelli’s failure to report the alleged abuse harmed AW. AW appeals.

ISSUE AND STANDARD OF REVIEW

¶11 On appeal, AW contends that the district court erred in granting Marelli’s summary judgment motion with respect to each of her three claims. We review a grant of summary judgment for correctness, giving “no deference to the district court’s legal conclusions.” Ipsen v. Diamond Tree Experts, Inc., 2020 UT 30, ¶ 7, 466 P.3d 190 (cleaned up).

ANALYSIS

¶12 Summary judgment is appropriate where the moving party shows that “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). We conclude that the district court properly granted summary judgment disposing of all three of AW’s claims against Marelli. We address the IIED, NIED, and negligent sexual abuse claims in turn.

  1. IIED

¶13      The district court concluded that Marelli’s conduct was not outrageous as a matter of law because all Marelli’s “voluminous” communications with AW “plainly represent attempts by [Marelli] to reconcile with her daughter.” AW contends that the district court erred because it (1) stepped into the role of the jury when determining that all the communications were an attempt to reconcile, (2) failed to consider other evidence of Marelli’s outrageous behavior, and (3) applied an unnecessarily restrictive test for outrageous behavior. But we agree with the district court.

¶14      In addition to elements not at issue here,[3] to succeed on a claim for IIED, a plaintiff must show that the defendant’s conduct “was outrageous and intolerable in that it offended generally accepted standards of decency and morality.” Prince v. Bear River Mutual Ins. Co., 2002 UT 68, ¶ 37, 56 P.3d 524 (cleaned up). Our supreme court in Retherford v. AT&T Communications of Mountain States, Inc., 844 P.2d 949 (Utah 1992), explained that “the standard Utah has adopted for determining whether the conduct of a defendant is sufficiently offensive to permit recovery is whether the defendant’s actions offend against the generally accepted standards of decency and morality.” Id. at 977 (cleaned up). The court clarified that this standard does not “weaken” that adopted by the Restatement (Second) of Torts, which uses the language “beyond all possible bounds of decency.” Id. at 977 n.19; see also Restatement (Second) of Torts § 46 cmt. d (Am. L. Inst. 1965). The court made clear that the use of the language “generally accepted standards of decency” was not a change in the standard but only an acknowledgment that “all possible bounds” is difficult for any court to determine. Retherford, 844 P.2d at 977 n.19The court emphasized that it “in no way softened the Restatement’s requirement of extraordinarily vile conduct, conduct that is atrocious, and utterly intolerable in a civilized community.” Id. (cleaned up). As made explicitly clear by the court, this standard still applies and is appropriate to apply in this case.

Conduct is not necessarily outrageous merely because it is tortious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal. To be considered outrageous, the conduct must evoke outrage or revulsion; it must be more than unreasonable, unkind, or unfair. Indeed, in order to prevail on a claim for IIED, a plaintiff must be able to prove that the defendant engaged in extraordinarily vile conduct, conduct that is atrocious, and utterly intolerable in a civilized community.

Chard v. Chard, 2019 UT App 209, ¶ 57, 456 P.3d 776 (cleaned up).

¶15      On a claim for IIED, “it is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Id. (cleaned up). “However, where reasonable [minds] may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” Cabaness v. Thomas, 2010 UT 23, ¶ 36, 232 P.3d 486 (cleaned up), abrogated on other grounds by Gregory & Swapp, PLLC v. Kranendonk, 2018 UT 36, 424 P.3d 897. “[A] district court is not required to draw every possible inference of fact, no matter how remote or improbable, in favor of the nonmoving party. Instead, it is required to draw all reasonable inferences in favor of the nonmoving party.” IHC Health Services, Inc. v. D&K Mgmt., Inc., 2008 UT 73, ¶ 19, 196 P.3d 588. “An inference is unreasonable if there is no underlying evidence to support the conclusion.” Medina v. Jeff Dumas Concrete Constr. LLC, 2020 UT App 166, ¶ 21, 479 P.3d 1116 (cleaned up).

¶16      Looking at the “voluminous” examples of communication from Marelli to AW, we agree with the district court that the communications represent attempts—though at times poorly executed—of a mother to reconcile with her daughter. While statements such as “[Stepfather] sure misses being your dad” may not be the most sensitive way for Marelli to rebuild a relationship with her daughter, we cannot conclude that this and all the other communications can be reasonably said to violate “generally accepted standards of decency and morality.” See Prince, 2002 UT 68, ¶ 37 (cleaned up). It is well within the court’s authority to ascertain Marelli’s intent when reasonable minds could not differ, as is the case here.

¶17 When a claim for IIED involves allegedly “ongoing and continuous conduct,” the plaintiff “may recover for the entire course of [the] defendant’s conduct.” See Cabaness, 2010 UT 23, ¶ 27. Considering the whole of Marelli’s conduct—including the facts that the correspondence was unwanted, that Marelli made a couple of unwelcome visits to AW over the last decade, and that Marelli sent AW correspondence after the present lawsuit commenced—does not change our determination that Marelli’s conduct cannot be reasonably found to evoke the outrage or revulsion required to succeed on a claim for IIED.

¶18 The communications and even visits by Marelli to AW represent a mother’s attempt to build a relationship with her estranged daughter and, though insensitive at times, do not rise to the level of extraordinarily vile conduct required. Therefore, we affirm the district court’s grant of summary judgment against AW’s claim of IIED.

  1. NIED

¶19      AW also asserts that the district court erred in dismissing her NIED claim, arguing the court applied the wrong standard and overlooked contrary evidence.

¶20      Prior to 2018 in Utah, plaintiffs outside the “zone-of-danger”[4] had no means to recover for NIED. Mower v. Baird, 2018 UT 29, ¶¶ 75–85, 422 P.3d 837. Mower expanded “recovery for [NIED] in very limited circumstances” where “certain types of relationships, activities, and undertakings” exist that go to “the core of another person’s emotional well-being and security.” Id. ¶ 76. Because the case before us does not involve a zone-of-danger scenario, we apply the principles set forth in Mower. Under the Mower analysis, a plaintiff must establish that (1) the defendant owed a “traditional duty of reasonable care to the plaintiff” and (2) the “relationship, activity, or undertaking [is] of the type that warrants a special, limited duty to refrain from causing severe emotional distress.” Id. ¶ 78.

¶21 The second step requires an additional three-prong analysis asking the following:

(1) Does the relationship, activity, or undertaking necessarily implicate the plaintiff’s emotional well-being?; (2) Is there an especially likely risk that the defendant’s negligence in the course of performing obligations pursuant to such relationship, activity, or undertaking will result in severe emotional distress?; and (3) Do general public policy considerations warrant rejecting a limited emotional distress duty where prongs one and two would otherwise find one to exist?

Id. ¶ 80 (cleaned up).[5]

¶22 The district court considered solely the second prong of this analysis; however, we find that analysis unnecessary as AW’s claim fails on the first prong. The first prong is meant to ensure that the relationship, activity, or undertaking complained of is one “fraught with the risk of emotional harm to the plaintiff.” Id. ¶ 81 (cleaned up). The Utah Supreme Court has made clear that “this prong can be met only in those very limited situations where the emotional well-being of others is at the core of, or is necessarily implicated by, the relationship, activity, or undertaking.” Id. (cleaned up). The court did not delineate all possible relationships, activities, or undertakings that meet this requirement but instead indicated that courts should make this determination on a case-by-case basis with the recognition that this high threshold will be met in very few instances. Id.

¶23 As pointed out by AW, the court in Mower found that a nonpatient parent’s claim against the therapist who caused the parent’s child to develop false memories while treating the child for potential sexual abuse met this threshold as both an activity and relationship that implicates the parent’s emotional well­being. See id. ¶ 97. The Restatement (Third) of Tortsupon which our supreme court based this rule and upon which courts in other jurisdictions have relied—identifies NIED as actions such as the mishandling of a corpse, an erroneous announcement of a death or illness, a physician negligently diagnosing a patient with a serious disease, a hospital losing a newborn infant, an employer mistreating an employee, and a spouse mentally abusing the other spouse. See Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 47 cmt. f (Am. L. Inst. 2012); see also Mower, 2018 UT 29, ¶ 70; see, e.g.Hedgepeth v. Witman Walker Clinic, 22 A.3d 789, 819–20 (D.C. 2011) (applying NIED to a patient receiving a false HIV diagnosis); Doe Parents No. 1 v. State, 58 P.3d 545, 580–82 (Haw. 2002) (applying NIED to a school reinstating a teacher accused of child molestation without sufficient investigation of the claim); Boorman v. Nevada Mem’l Cremation Society, 236 P.3d 4, 7–8 (Nev. 2010) (en banc) (applying NIED to mortuary’s negligent handling of a loved one’s corpse).

¶24      Such a relationship, activity, or undertaking is not present here. While sexual abuse, particularly within one’s own home, is a serious and clearly harmful occurrence for a child, the activity that AW argues supports her NIED claim is Marelli’s continued communications with her, including two brief visits, over the decade following the alleged abuse. While this activity, which we view as attempts by a mother to reconcile with her daughter, may evoke strong emotions, as the district court pointed out, it is not “fraught with the risk of emotional harm.” Mower, 2018 UT 29, ¶ 81 (cleaned up). The expansion of NIED in Mower was extremely limited to the narrow circumstances explained above, and allowing recovery here would expand that rule exponentially. An estranged relationship with a parent is too ubiquitous to meet the specific requirement set out by our supreme court that this rule will be met in very few instances. See id. Applying NIED to the facts before us would open the door to a seemingly endless number of possible circumstances where communication between a parent and child is strained, hurtful, or unwanted. Thus, the activity here does not rise to the level of those “very limited situations where the emotional well-being of others” lies “at the core.” Id. (cleaned up). We therefore affirm the district court’s grant of summary judgment against AW’s claim of NIED.

III. Negligent Sexual Abuse

¶25 AW argues that Marelli was negligent in preventing the alleged sexual abuse AW suffered because Marelli had previous warning about Stepfather’s “inappropriate behavior around children.”[6] The district court found legally insufficient support in the record for this contention—a conclusion with which we agree. To support this claim, AW relies on Neighbor’s declaration that Stepfather wrote on her daughter’s buttocks. AW argues that the district court inappropriately weighed and discounted the declaration, particularly by calling the declaration “one somewhat vague report of inappropriate conduct.”

¶26 In addition to other factors, a negligence claim requires foreseeable injury to establish whether a defendant had a duty “to conform to a particular standard of conduct toward another.” Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 19, 215 P.3d 152 (cleaned up). “What is necessary to meet the test of negligence . . . is that [the harm] be reasonably foreseeable, not that the particular accident would occur, but only that there is a likelihood of an occurrence of the same general nature.” Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1346 (Utah 1993) (cleaned up); accord Normandeau, 2009 UT 44, ¶ 20. Duty—which includes the issue of foreseeability—is “a purely legal issue for the court to decide.” Normandeau, 2009 UT 44, ¶ 17.

¶27 While summary judgment is appropriate only “when, viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law,” a plaintiff “is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture.” Kranendonk v. Gregory & Swapp, PLLC, 2014 UT App 36, ¶ 15, 320 P.3d 689 (cleaned up), cert. denied, 329 P.3d 36 (Utah 2014). “When the facts are so tenuous, vague, or insufficiently established that determining an issue of fact becomes completely speculative, the claim fails as a matter of law, and summary judgment is appropriate.” Hardy v. Sagacious Grace LC, 2021 UT App 23, ¶ 21, 483 P.3d 1275 (cleaned up); see also Nelson v. Target Corp., 2014 UT App 205, ¶ 25, 334 P.3d 1010 (“A plaintiff cannot avoid summary judgment based on doubtful, vague, speculative or inconclusive evidence.” (cleaned up)).

¶28 Although certainly disconcerting, the singular incident described in Neighbor’s declaration is not enough to make it reasonably foreseeable to Marelli that Stepfather would sexually abuse AW and thereby leaves AW’s claim in the realm of vague speculation, which is appropriate for summary judgment. First, the evidence AW points to suggests that the incident with Neighbor’s child was an isolated event. Second, writing on a child’s buttocks during a game, though deplorable and entirely inappropriate, is markedly different than lying in bed with and touching a child’s genitals under her clothing. See McGuire v.Cooper, 952 F.3d 918, 922–23 (8th Cir. 2020) (concluding that summary judgment was appropriate in a case involving a sexual assault as “the prior instances of sexual misconduct [were] not similar in kind or sufficiently egregious in nature to demonstrate a pattern of sexual assault”); Bjerke v. Johnson, 727 N.W.2d 183, 190 (Minn. Ct. App. 2007) (“The foreseeability of a sexual assault often hinges on whether the defendant was aware of prior similar behavior by the third party. Indeed, sexual assault will rarely be deemed foreseeable in the absence of prior similar incidents.” (cleaned up)), aff’d, 742 N.W.2d 660 (Minn. 2007).[7] Finally, AW points to no evidence that Stepfather had taken any liberties with or made any inappropriate advances toward her prior to the incident at issue here. See Doe v. Franklin, 930 S.W.2d 921, 924–29 (Tex. App. 1996) (concluding that summary judgment was not appropriate on a negligence claim where a grandmother left her granddaughter alone with the grandfather after the granddaughter told the grandmother he had sexually abused her).[8] Therefore, seeing insufficient evidence in the record that Marelli should have reasonably foreseen the threat of Stepfather sexually abusing AW, we affirm the district court’s grant of summary judgment on AW’s claim of negligent sexual abuse.

CONCLUSION

¶29 We conclude that the district court correctly granted Marelli’s motion for summary judgment, thereby disposing of all three of AW’s claims against her.

¶30 Affirmed.

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


[1] Dear Reader: Judge Mortensen recognizes that you may be accustomed to the use of periods after each letter when we use initials in place of a party or witness name. However, he chooses to depart from that practice now and in the future. Removing the periods is both space saving and easier on the eyes.

[2] We recite the facts of the case and draw all reasonable inferences in the light most favorable to AW as the nonmoving party. See USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 33, 235 P.3d 749 (“[I]n a summary judgment proceeding, all facts and the reasonable inferences to be made therefrom should be construed in a light favorable to the non-moving party.”).

[3]  “In Utah, a claim for IIED is actionable if: (i) the defendant’s conduct is outrageous and intolerable; (ii) the defendant intends to cause emotional distress; (iii) the plaintiff suffers severe emotional distress; and (iv) the defendant’s conduct proximately causes the plaintiff’s emotional distress.” Chard v. Chard, 2019 UT App 209, ¶ 57, 456 P.3d 776 (cleaned up).

[4] The zone-of-danger rule set forth in section 313 of the Restatement (Second) of Torts allows a plaintiff within the physical zone of danger resulting from a defendant’s actions “to recover for emotional distress caused by fear for personal safety even though the plaintiff suffered no physical harm as a result of the defendant’s breach of duty.” Mower v. Baird, 2018 UT 29, ¶¶ 51–52, 422 P.3d 837 (cleaned up); see also Restatement (Second) of Torts § 313 (Am. L. Inst. 1965).

[5] The district court and parties have assumed a duty existed by moving directly to step two of the Mower analysis. Therefore, for purposes of this appeal, we do the same and move directly to the three prongs under step two. However, this is not an indication of whether a duty did in fact exist under step one of the Mower analysis in this case.

[6] In her complaint, AW asserted that Marelli’s failure to report Stepfather’s sexual abuse to the proper authorities also constituted negligence—a claim which the district court determined failed. AW does not raise this issue on appeal; therefore, we will not address it.

[7] To support her argument that Marelli should have foreseen the threat that Stepfather posed, AW cites O.L. v. R.L., 62 S.W.3d 469 (Mo. Ct. App. 2001), which states that “[a]s the gravity of possible harm from sexual molestation of a young child is high, we recognize that it may require a lesser showing of likelihood than with other types of injuries.” Id. at 477. However, in O.L., the court concluded that summary judgment was appropriate as the harm was not foreseeable where a grandmother left her grandchild with the grandfather, who then sexually abused the child. Id. at 481. The evidence presented included the fact that the grandfather physically abused the grandmother decades previously and broke her nose, which the child’s father knew about and considered “so remote in time that he had no qualms” with leaving his child in the grandfather’s care. Id. at 478–79. The parents additionally presented evidence that fifteen years prior to the abuse of the child, the grandfather subscribed to Playboy magazine for one year. Id. at 479. Finally, the parents relied on speculative evidence that the grandfather sought extramarital sexual liaisons through advertisements and at a social gathering. Id. The court concluded that the evidence presented was “so tenuous that it [could not] give rise to a genuine dispute as to whether a reasonable person knew or should have known that [the] grandfather might pose a danger to [the grandchild] if she was left unsupervised in his care, thereby breaching a duty of care.” Id. at 481. While the evidence here, namely the incident involving Neighbor’s daughter, is much more related in time and conduct to the abuse AW suffered, it is still tenuous as we have discussed and does not meet even a requirement of a “lesser showing of likelihood,” id. at 477, if that standard were to apply in Utah.

[8] 8. AW cites Doe ex rel. Pike v. Pike, 424 F. Supp. 3d 170 (D. Mass. 2019), to support her argument that a reasonable jury could conclude the harm of sexual abuse was reasonably foreseeable. The case is unpersuasive. In Pike, a granddaughter in the care of her grandparents suffered sexual abuse from her grandfather. Id. at 172. The court concluded that summary judgment was inappropriate because, viewing the evidence in the light most favorable to the nonmoving party, a jury could find that “a reasonable person in [the grandmother’s] position would have or should have known that [the grandfather] was abusing [the granddaughter].” Id. at 182. As AW points out in her brief, the court based this determination on such evidence as “[the grandmother’s] own observations of [the grandfather’s] conduct toward [the granddaughter] and their other grandchildren, including observing him playing the radio game [which involved twisting the children’s nipples], engaging in the tickle game to excess, being in the vicinity when the abuse occurred and ‘locking eyes’ with [the granddaughter] while she sat next to [the grandfather] on the couch and his hands were under the blanket hidden from view.” Id. This evidence involved multiple incidents and red flags that the grandmother chose to ignore, unlike the singular incident here when Stepfather allegedly wrote on Neighbor’s daughter. Furthermore, the Pike court additionally based its decision on the evidence, which AW fails to note, that the grandmother knew the grandfather had been accused of sexual assault previously. Id. With all this evidence taken into account, we do not view Pike as analogous or persuasive.

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Holt v. Holt – 2024 UT App 6 – reasonable time rule

Holt v. Holt – 2024 UT App 6

THE UTAH COURT OF APPEALS

RHONDA S. HOLT, Appellee,

v.

CHRISTOPHER JOHN HOLT, Appellant.

Opinion

No. 20220090-CA

Filed January 11, 2024

Third District Court, Salt Lake Department

The Honorable Andrew H. Stone

No. 044902588

Ben W. Lieberman, Attorney for Appellant

Matthew A. Steward and Katherine E. Pepin,

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and

DAVID N. MORTENSEN concurred.

ORME, Judge:

¶1       Christopher and Rhonda Holt’s divorce was finalized in 2004 after the entry of a stipulated settlement agreement and the district court’s entry of a divorce decree. Per the divorce decree, Rhonda[1] was awarded a commercial property in which she operated a salon and Christopher was awarded an equity interest in the property redeemable “when the property is sold.” From the time the court entered the divorce decree, Rhonda operated the salon and did not sell the property or satisfy Christopher’s outstanding interest.

¶2        Years later, Christopher petitioned the district court asking that it require Rhonda to sell the property and satisfy his equity interest, first on the rationale of modifying the divorce decree and later on the rationale of enforcing it. He contended that because “Utah law implies a reasonable time under the circumstances,” the court should compel Rhonda to sell the property. The district court ultimately determined that Rhonda had no obligation to sell the property and declined to impose any deadline by which she had to do so. But under Utah law, a reasonable time for performance will be implied if a contract fails to include a specific time for performance. And on the facts of this case, we conclude that a reasonable time for Rhonda’s performance extends to the time when she ceases to operate a salon on the property.

BACKGROUND

¶3        Christopher and Rhonda were married in 1988. In 2004, Rhonda filed a complaint for divorce, and soon after, the district court granted Rhonda’s motion for default judgment. The court then entered a divorce decree based on the parties’ Stipulation and Settlement Agreement (the stipulation). The record reflects that when the stipulation was entered, each party was represented by counsel. Christopher’s counsel withdrew after the stipulation was filed, just prior to entry of the decree.

The Stipulation and the Decree

¶4        The stipulation included an integration clause indicating that it was the parties’ final agreement. Specifically, it was “a complete settlement of all rights either party may have in the other’s property” and any “valid” modification or waiver of the stipulation’s terms must be “in writing and signed by both parties before a notary public.” The stipulation provided that neither party would receive alimony. Pursuant to the stipulation, the district court entered findings of fact and conclusions of law and a divorce decree that mirrored the provisions of the stipulation.

¶5        At the heart of this matter is section 9(B) of the decree. First, it awarded Rhonda the salon property and ordered Christopher to “execute a quit claim deed” in her favor. Second, it reserved for Christopher “an equitable lien for one-half of the net equity in the property when the property is sold.” Third, it defined net equity as “the gross selling price less realtor commissions and normal closing costs.” And fourth, it reiterated that Christopher “shall only be entitled to his equity when the property is sold.” The preceding section—section 9(A)—awarded Rhonda the parties’ home “free and clear from any claim by” Christopher and instructed that Christopher was to “execute a quit-claim deed in favor of” Rhonda within ten days following entry of the decree. It is noteworthy that section 9(B), in contrast to section 9(A), did not include a specific timeframe related to Rhonda’s satisfaction of Christopher’s equity interest in the property.

The Petition to Modify the Decree

¶6        In October 2018, over fourteen years after the decree was entered, Christopher filed a petition to modify the decree, claiming “a material and unforeseeable substantial change of circumstances.” Specifically, the petition indicated that “the parties did not anticipate that fourteen years would pass” during which Christopher’s equity interest in the property would go unpaid. Christopher sought an order compelling Rhonda to either sell or refinance the property and to satisfy Christopher’s outstanding interest.

¶7        In response, Rhonda moved to dismiss the petition on the ground that Christopher had failed to support his assertion of a material and unforeseeable change in circumstances warranting the requested modification of the decree. Rhonda acknowledged that Christopher would be entitled to have his equity interest in the property cashed out, but she argued that under the plain language of the decree, he was entitled to payment only when the property was sold, which had not yet occurred. Rhonda noted that the parties’ circumstances had not materially changed since the court entered the decree in 2004—she had not sold or refinanced the property and she continued to operate her salon on the property. Quoting Land v. Land, 605 P.2d 1248 (Utah 1980), Rhonda argued that “when a decree is based upon a property settlement agreement, forged by the parties and sanctioned by the court, equity must take such agreement into consideration.” Id. at 1250–51. She noted our Supreme Court’s position that “[e]quity is not available to reinstate rights and privileges voluntarily contracted away simply because one has come to regret the bargain made.” Id. at 1251. Rhonda asserted that the decree does not impose a deadline by which she had to sell the property and “clearly withholds distribution” of Christopher’s interest in the property until it is sold. Thus, she maintained that Christopher “failed to demonstrate that there has been a substantial change in circumstances that was not [contemplated] by the parties at the time the decree was entered.”

¶8        In his opposition to the motion to dismiss, Christopher claimed that he was not represented by counsel during the divorce action and thus was not involved in drafting the decree.[2] He also claimed that he relied on representations Rhonda made both before and after entry of the decree that she would refinance or sell the property “in the very near future to pay him out.” Christopher asserted that prior to the divorce, the parties had received an $84,000 loan from his parents to purchase the property and that when his parents passed away some years later, $84,000 was taken out of his inheritance to pay the obligation. Christopher argued that under the plain language of the decree and under Rhonda’s suggested interpretation of section 9(B), he “could die and not receive any benefit from the agreement” and he could potentially lose his interest in the property if Rhonda were to pass away or transfer the property to someone else, thereby avoiding the satisfaction of Christopher’s equity interest.

¶9        Rhonda responded that the petition before the court was one to modify the decree based on a theory of material change of circumstances—not one to enforce the decree. She argued that this was really a situation of unilateral mistake on his part, and she reiterated her position that hindsight and dissatisfaction with a prior stipulation are not adequate grounds for relieving parties of their contractual obligations. Rhonda again acknowledged her obligation to pay Christopher his share of the equity when the property is sold, but she pointed out that the decree did not specify a sale deadline. She also noted that it would have been very easy to incorporate such a date into the stipulation and the decree if that had been the parties’ intention. To support this position, Rhonda pointed out that section 9(A) of the decree imposed a ten-day deadline for Christopher’s delivery of a quitclaim deed to the parties’ home, while section 9(B), which dealt with the sale of the salon property, included no provision concerning the time for performance.

¶10      Christopher requested that the court hold an evidentiary hearing concerning Rhonda’s motion to dismiss. But the district court denied this request and also denied Rhonda’s motion to dismiss. Eventually, a trial date was set. And at the ensuing bench trial,[3] at which both Christopher and Rhonda testified, the district

court granted Rhonda’s motion for a directed verdict and dismissed the petition on the ground that Christopher had failed to provide sufficient evidence to support the petition.[4]

The Motion to Enforce the Decree

¶11      In July 2021, Christopher filed a motion to enforce the decree in a renewed effort to compel Rhonda’s sale of the salon property. Christopher argued that under the principles articulated in New York Avenue LLC v. Harrison, 2016 UT App 240, 391 P.3d 268, cert. denied, 393 P.3d 283 (Utah 2017), the decree’s lack of an “expressly-stated time[] for performance” signified that the court should impose a “reasonable time under the circumstances” by which Rhonda had to sell the property and that such a time had already passed. See id. ¶ 32 (quotation simplified).

¶12      In response, Rhonda argued that the motion to enforce was simply Christopher’s attempt to get a “third bite at the apple.” Similar to her response to the petition to modify, Rhonda argued that Christopher failed to present sufficient credible evidence to support his contention that the parties’ intent was anything other than to afford Christopher his interest in the property when Rhonda sold it. She contended that because the salon on the property was her “sole source of income,” the parties deliberately omitted any specific performance deadline, providing instead— and explicitly emphasizing—that Christopher would be entitled to payment for his interest when, and only when, the property was sold. Rhonda asserted that it would therefore be inappropriate for the court to impose a reasonable time by which she had to sell the property when the decree’s plain language was straightforward and explicitly did not include one.

¶13 In October 2021, Commissioner Russell Minas heard argument on the motion. The commissioner concluded that “[b]ecause there [was] no deadline provided by the parties, Utah law implies a reasonable time under the circumstances,” see id., which he determined to be “until [Rhonda] ceases to use the Property to operate a business.” The commissioner thereafter issued his recommendation in the matter. See Utah R. Civ. P. 108(a) (“A recommendation of a court commissioner is the order of the court until modified by the court.”).

¶14 Christopher subsequently filed an objection to the recommendation pursuant to rule 108 of the Utah Rules of Civil Procedure. See id. (“A party may file a written objection to the recommendation within 14 days after the recommendation is made in open court[.]”). Christopher acknowledged that the commissioner correctly determined that the reasonable-time rule articulated in New York Avenue applied to this case. But he challenged the commissioner’s application of the rule. He argued that the “reasonable time under the circumstances is determined by looking to the intention of the parties at the time of the formation of the contract” and that in so doing, it is clear the reasonable-time threshold had already passed because neither the stipulation nor the decree intended for Rhonda “to retain the Property and all equity so long as she operated a business.” Rhonda yielded to the commissioner’s interpretation of a reasonable time, arguing that the commissioner correctly defined a reasonable time under all the circumstances.

¶15 The district court heard argument on Christopher’s objection.[5] The court overruled Christopher’s objection from the bench and modified the commissioner’s recommendation. The court concluded that a reasonable time for performance should not be implied here because, per the language of the decree, Rhonda’s deadline to sell the property was whenever she chose to sell it and that “it would be inappropriate for the Court to impose a date by which the Property must be sold.”

¶16      Christopher appeals.

ISSUES AND STANDARDS OF REVIEW

¶17 Christopher primarily argues that the district court erred in concluding that the reasonable-time rule was inapplicable here. “We interpret a divorce decree according to established rules of contract interpretation.” Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248 P.3d 65 (quotation simplified), cert. denied, 255 P.3d 684 (Utah 2011). Accordingly, we review the district court’s interpretation of the decree for correctness. See Mintz v. Mintz, 2023 UT App 17, ¶ 14, 525 P.3d 534, cert. denied, 531 P.3d 730 (Utah 2023).

¶18 Christopher also argues that the court “exceeded the scope” of his objection when it addressed “matters not before the court.” The scope of a court’s review of a commissioner’s recommendation turns on the correct interpretation of the applicable rule of civil procedure. Cf. Zions Bancorporation, NA v. Schwab, 2023 UT App 105, ¶ 12, 537 P.3d 273 (holding that the district court’s “statutory interpretation” is reviewed “for correctness”) (quotation simplified); Bermes v. Summit County, 2023 UT App 94, ¶ 28, 536 P.3d 111 (stating that a district court’s “interpretation of a set of statues or ordinances” is reviewed “for correctness”) (quotation simplified), cert. denied, 2023 WL 9058850 (Utah 2023).

ANALYSIS

I. Reasonable Time Under the Circumstances

¶19      Christopher first challenges the district court’s conclusion that “it would be inappropriate for the Court to impose a date by which the property must be sold.” He asserts that the court’s conclusion is incorrect, that the reasonable-time rule is applicable here, that a reasonable time has long since elapsed, and that Rhonda should be compelled to sell the property and satisfy his equity interest. We determine that the district court’s conclusion was incorrect and conclude that the reasonable-time rule is applicable in this matter. We then determine what constitutes a reasonable time for Rhonda’s performance under the circumstances.

¶20 A stipulated divorce decree represents an enforceable contract between divorcing spouses, and so “we interpret the parties’ decree according to established rules of contract interpretation.” Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232 (quotation simplified). Of course, “the cardinal rule in contract interpretation is to give effect to the intentions of the parties as they are expressed in the plain language of the contract itself,” and “we construe a contract to give effect to the object and purpose of the parties in making the agreement.” New York Avenue LLC v. Harrison, 2016 UT App 240, ¶ 21, 391 P.3d 268 (quotation simplified), cert. denied, 393 P.3d 283 (Utah 2017). Key to the issue before us, our principles of contract interpretation further provide “that if a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances,” id. ¶ 32 (quotation simplified), which analysis entails a question of fact, see iDrive Logistics LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 55, 424 P.3d 970, cert. denied, 425 P.3d 803 (Utah 2018).

¶21 The parties agree on the basic meaning of the terms contained in section 9(B) of the decree. They accept that under section 9(B), Rhonda was awarded ownership of the property, Christopher was required to “execute a quit claim deed” in Rhonda’s favor while reserving for himself “an equitable lien for one-half of the net equity of the property when the property is sold,” and that Christopher would “only be entitled to his equity when the property is sold.” Further, both parties acknowledge that section 9(B) does not include a date by which the property was required to be sold. Based on this understanding, Christopher argues that the district court’s conclusion was incorrect, that the reasonable-time rule does apply, and that Rhonda should be compelled to sell the property immediately, a reasonable time having long since come and gone, or else his interest “could remain trapped forever.”

¶22 Christopher asserts that under our decision in New York Avenue, the district court should be required to apply the reasonable-time rule based on the reality that section 9(B) did not include a specified time of performance. In that case, a seller contracted with a buyer for the sale of certain real estate. 2016 UT App 240¶ 3. Due to unforeseen complications, the transaction was not settled on the date intended by the contract. Id. ¶¶ 5–6. The buyer, still desiring to be bound by the terms of the contract, elected to begin making monthly settlement extension payments to the seller, as provided for in the contract, thus advancing the contract’s intended settlement date to the last day of the month associated with the buyer’s settlement extension payment. Id. ¶ 6. While the contract provided terms to extend the settlement date, it failed to specify a final date regarding the ultimate settlement of the contract or to define the maximum number of settlement extensions available to the parties. Id. ¶ 5. After numerous settlement extensions, the seller sought to terminate the contract. Id. ¶¶ 8–9. Following a summary judgment hearing, the district court determined that the contract entitled the buyer to extend the settlement deadline indefinitely, “so long as valid tender of the extension payment was made.” Id. ¶ 12 (quotation simplified).

¶23 On appeal, we held, in relevant part, that because the contract did “not limit the number of extension payments,” it did “not provide a date by which [seller] must perform its core obligation to complete the purchase of the Property.” Id. ¶ 34. Accordingly, we noted “that if a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances.” Id. ¶ 32 (quotation simplified). And we concluded that the district court erred in granting summary judgment that countenanced an indefinite extension of the time for performance. Id. ¶¶ 29, 32.

¶24 Similar to the seller in New York Avenue, Christopher is concerned that if we conclude that the reasonable-time rule does not apply to section 9(B) of the decree, there exists a possibility that Rhonda could opt to never sell the property and thereby retain all of the equity indefinitely. In reviewing the conclusions of the court, we must evaluate the plain language of section 9(B) of the decree to determine if the district court correctly held that the reasonable-time rule did not apply.

¶25 Based on the plain language of section 9(B), it is obvious that nowhere in its four sentences is there any provision regarding a specific date by which Rhonda must sell the property. Rhonda argues on appeal that it would be improper for the court to impose a reasonable time for performance because, unlike the contract at issue in New York Avenue, section 9(B) did not intend to “create an obligation” for the sale of the property. She further contends that sale of the property is a condition precedent, and thus, she is not required to sell the property but that if she does, Christopher would then be entitled to receive his share of the equity. We are not persuaded by Rhonda’s argument. The intent of the decree was to “resolve all issues between” the parties. Therefore, while section 9(B) was not intended to be a sales agreement, it was also not intended to allow Rhonda to indefinitely prevent the satisfaction of Christopher’s interest. See Brady v. Park, 2019 UT 16, ¶ 53, 445 P.3d 395 (“When we interpret a contract we first look at the plain language of the contract to determine the parties’ meaning and intent.”) (quotation simplified). Accordingly, we agree with Christopher that a reasonable time for performance should be implied. Thus, we conclude that the district court incorrectly determined that the reasonable-time rule was inapplicable here. We next determine what the reasonable time should be, and here we part ways with Christopher and endorse the view adopted by the commissioner.

¶26      Due to the nature of these proceedings and Christopher’s decision not to request transcripts of the prior hearings, we are unable to consider the parties’ presentations before the commissioner or the district court, including not only the arguments they made but also any evidence they introduced or evidentiary proffers they made. Even so, Christopher contends that “[a] reasonable time is defined by the parties’ intentions at the time the contract is formed, not when the dispute arises,” and that because the parties did not intend for his interest to remain unsatisfied this long, a reasonable time has long since elapsed. Conversely, Rhonda contends that “[t]he language of the Decree demonstrates that the Parties intended for [her] to be able to operate her business from the Property to support herself indefinitely.”

¶27 In consideration of what constitutes a reasonable time under the circumstances, we must discern the parties’ intentions from the language of their contract—the stipulated decree—and the relevant circumstances, but in the absence of whatever evidence might have been adduced or proffered at the hearings as we have not been favored with the transcripts. We are mindful that neither party was awarded alimony in this case, meaning Rhonda’s livelihood depended on her continued ability to operate her salon business. And it is significant that not only was no time for Rhonda‘s performance specified, but it was emphasized that Christopher shall be entitled to his equity only “when the property is sold.” The conclusion is inescapable, as determined by the commissioner, that the intention of the parties, as reflected in the language they employed, was that Rhonda’s obligation to sell the property and cash out Christopher would be triggered when she ceased to operate the salon business. That occurrence would equate to the reasonable time for her performance under the unique circumstances of this case.

II. Scope of District Court Review

¶28      Christopher next challenges the district court’s expansive consideration of the commissioner’s recommendation, arguing that the court “exceeded the scope” of his objection by addressing “matters not before the court.” We disagree with Christopher’s position. A plain reading of rule 108(f) of the Utah Rules of Civil Procedure requires the district court to make “independent findings of fact and conclusions of law based on the evidence.” And our jurisprudence makes clear that a district court has plenary responsibility for “what is essentially its own order.” Somer v. Somer, 2020 UT App 93, ¶ 12, 467 P.3d 924 (quotation simplified). Accordingly, we conclude that the court did not exceed the scope of its authority in reviewing the commissioner’s recommendation without being confined to the contours of the objection made by Christopher.

¶29      “We interpret court rules, like statutes and administrative rules, according to their plain language.” Day v. Barnes, 2018 UT App 143, ¶ 12, 427 P.3d 1272 (quotation simplified). Rule 108 provides a procedure by which a party may object to a commissioner’s recommendation and request that the district court review the recommendation. Within this framework, subsection (a) first indicates that a commissioner’s recommendation “is the order of the court until modified by the court” and that “[a] party may file a written objection to the recommendation.” Utah R. Civ. P. 108(a) (emphasis added). Next, subsection (b) explains that any objection “must identify succinctly and with particularity the findings of fact, the conclusions of law, or the part of the recommendation to which the objection is made and state the relief sought,” and it also provides that the accompanying memorandum of support “must explain succinctly and with particularity why the findings, conclusions, or recommendation are incorrect.” Id. R. 108(b). Lastly, subsection (f) directs that “[t]he judge will make independent findings of fact and conclusions of law based on the evidence, whether by proffer, testimony or exhibit, presented to the judge, or, if there was no hearing before the judge, based on the evidence presented to the commissioner.” Id. R. 108(f) (emphasis added). Thus, the plain language of the rule “does not provide for an appeal-like review of a commissioner’s decision, but instead requires independent findings of fact and conclusions of law based on the evidence.” Day, 2018 UT App 143, ¶ 16 (quotation simplified).

¶30 In the case at hand, after the commissioner made his recommendation, Christopher filed an objection wherein he explained that while the commissioner “correctly found” that the reasonable-time rule applied to section 9(B) of the decree, he erred because the recommendation was not based on evidence that, at the time the decree was entered, the parties intended that Rhonda would “retain the Property and all equity so long as she operated a business.” After a hearing on Christopher’s objection, the court modified the recommended order based on its independent determination that it would be “inappropriate” to apply the reasonable-time rule and “to impose a date by which the Property must be sold.” Christopher now argues that the court’s decision to modify the recommendation concerning the reasonable-time rule “exceeded the scope” of his objection because, as the objecting party, he “was entitled to define the scope of his objection, and he did so narrowly.”

¶31 We reject this argument. As just explained, when faced with an objection to a commissioner’s recommendation, the responsible district court judge is expected to make “independent findings of fact and conclusions of law based on the evidence.” Utah R. Civ. P. 108(f) (emphasis added). We have previously explained that because a commissioner’s recommendation is “the order of the district court until modified by that court,” “it would make little sense that the district court would be limited in reviewing what is essentially its own order.” Day, 2018 UT App 143, ¶ 18 (quotation simplified). Therefore, while rule 108 provides that the objecting party must proceed with “particularity” concerning the basis of the objection, Utah R. Civ. P. 108(b), that same particularity does not circumscribe the authority of the reviewing court and does not limit the reviewing court’s ability to make its own findings and conclusions, see id. R. 108(f). Thus, notwithstanding Christopher’s “narrowly” defined objection, the court’s modification of the commissioner’s recommendation did not exceed the appropriate scope of review in a procedural sense, even though we conclude that the court’s substantive conclusion was incorrect.

CONCLUSION

¶32 The district court erred because the reasonable-time rule should have been applied in this case, and the reasonable time to be imputed is essentially the time as determined by the commissioner, namely when Rhonda ceases operating her salon on the property. We remand so the court can adjust its order accordingly. At the same time, we conclude that the court did not exceed the scope of its review authority under rule 108.

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


[1] Because the parties share the same last name, we refer to them by their first names, with no disrespect intended by the apparent informality.

[2] Christopher, then represented by new counsel, may have been confused about this because the decree was entered on the basis of his default. But the record in this case demonstrates that Christopher was represented by counsel right up until the time the decree was entered on the basis of his stipulated default.

[3] With no transcript of the bench trial submitted by Christopher, we rely on the minutes of the proceedings found in the record. Cf. In re A. Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 85, 536 P.3d 38 (stating that “when an appellant fails to provide an adequate record on appeal, we presume the regularity of the proceedings below”) (quotation simplified).

[4] In May 2021, Christopher appealed, requesting that this court review the dismissal of the petition to modify and “all subsidiary rulings and orders leading to final judgment,” but he moved to voluntarily dismiss this appeal shortly thereafter, which motion this court granted.

[5] As with the bench trial, Christopher did not request a transcript of this hearing and we therefore rely on the minutes of the proceedings found in the appellate record to understand what occurred during the hearing. See supra note 3. While it perhaps is not always necessary to include a transcript of hearings in the appellate record, we have previously determined that a transcript “is necessary in cases where the court issued an oral ruling at the conclusion of the hearing and where the court’s eventual written order is silent with regard to the matter being challenged.” In re A. Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 86, 536 P.3d 38“In such cases, a transcript of the hearing is necessary for us to effectively review the challenged issue” because without it “we do not know what evidence or argument the court relied on in rendering any decision.” Id. While we do have a spartan description of the hearing included in the court’s minutes, which is not without utility, we discourage parties from relying wholly on the court’s minutes when a transcript is readily available.

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2023 UT App 137 – Lobendahn v. Lobendahn – petition to modify custody

2023 UT App 137  – Lobendahn v. Lobendahn

 

THE UTAH COURT OF APPEALS

MARCUS JAMES LOBENDAHN,

Appellant and Cross-appellee,

v.

LEEYEN MOEVAI LOBENDAHN,

Appellee and Cross-appellant.

Opinion

No. 20210278-CA

Filed November 16, 2023

Fourth District Court, Provo Department

The Honorable Thomas Low

No. 164400262

Luke A. Shaw and Jill L. Coil,

Attorneys for Appellant

Julie J. Nelson, Daniel Ybarra, and Alexandra

Mareschal, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES RYAN M. HARRIS and RYAN D. TENNEY

concurred.

CHRISTIANSEN FORSTER, Judge:

 

¶1        Marcus James Lobendahn (Father) appeals the district court’s denial of his petition to modify the parties’ divorce decree. LeeYen Moevai Lobendahn (Mother)[1] also appeals the court’s order denying her request for attorney fees incurred in responding to Father’s petition to modify. We affirm the district court’s order in all respects.

BACKGROUND

¶2        The parties were married in 2008 in Hawaii. Following their marriage, the parties moved to Utah and had two children— a daughter and a son (Son). In May 2015, Father moved to New Jersey for employment purposes, and Mother and the children followed a little while later. Shortly after Mother arrived in New Jersey, Father asked Mother for a divorce and filed for a divorce in Utah. Mother suggested that the children live with Father in the marital apartment while she rented a separate place and cared for the children while Father was at work. Father declined the offer and advised Mother that she and the children should move back to Utah, which they did. The parties’ divorce was finalized through a stipulated decree in Utah in early 2016 while Father still lived in New Jersey. The decree awarded the parties joint legal and physical custody of the children and Father parent-time under section 30-3-37 of the Utah Code with additional time during certain breaks.

¶3        Father moved back to Utah in the fall of 2016, and Mother allowed him parent-time every other weekend, similar to the schedule provided in section 30-3-35 of the Utah Code. In 2017, Father filed a petition to modify based on his relocation, and the parties resolved the petition through a stipulation modifying the decree of divorce. Based upon their agreement, Father would exercise parent-time as provided in section 30-3-35 until he moved within fifteen miles of Mother’s residence in Utah County, at which time his parent-time would increase pursuant to the schedule described in section 30-3-35.1, with some modifications. Father did not move within fifteen miles of Mother and the children at that time but remarried and moved to his wife’s residence in Salt Lake County. Even so, Mother allowed Father to exercise increased parent-time.

¶4      Mother sent a letter to Father in March 2018, notifying him of her intent to remarry and relocate with the children to Washington state. A few weeks later, Father notified Mother that he had signed a lease for an apartment in an area within fifteen miles of her residence in Utah County. Father continued to reside with his wife in Salt Lake County but would stay at the apartment when exercising parent-time with the children. Thereafter, Father filed a motion to restrain Mother from relocating, which the court denied, concluding that Mother’s move to Washington was in the best interest of the children. Mother remarried and moved to Washington in the summer of 2018.

¶5        While the parties were litigating Mother’s relocation, Father filed a second petition to modify. Father argued that he should be awarded primary physical custody of the children, who should live with him in Utah, and that Mother should be awarded parent-time under section 30-3-37 of the Utah Code. Father’s petition alleged that Mother had not been entirely truthful in describing the reasons for her relocation, that the children struggled in school upon moving to Washington, that Mother had been evasive about Father’s proposal to relocate to Washington to live close to the children, that Mother interfered with his parent-time since she had relocated, that Mother had been uncooperative in planning the children’s travel, and that Mother interfered with Father’s participation in Son’s baptism. Father also requested that a custody evaluator be appointed to make recommendations about what custodial arrangement would be in the best interest of the children, and the court granted that request.

¶6        The court appointed a custody evaluator (Evaluator), who began her evaluation in July and completed her work in November 2019. Evaluator interviewed the parties, their respective spouses, and Son, and she observed the children with both parents in their homes. At the time Evaluator conducted her evaluation, the children had lived in Washington with Mother for approximately one year. Evaluator delivered her recommendations to the parties at a settlement conference in April 2020, and completed her report five months later. Evaluator recommended that the parties continue to share joint physical and legal custody but that the children should relocate back to Utah. Evaluator recommended that if Mother did not return with the children, Father should have primary physical custody with statutory visitation for Mother. Later, at the trial on Father’s petition to modify, Evaluator advised that in her opinion—while both parents shared a close, positive relationship with the children and Mother had been the children’s primary caretaker for their entire lives—Mother did not truly support the children’s relationship with Father and the broad benefit of having access to Father outweighed the potential risk that a second relocation adjustment would be hard for the children. And she acknowledged that her relocation recommendation was based on her understanding that if the court ordered the children to relocate back to Utah, Mother would move back to Utah as well. Evaluator also conceded that by the time of trial, the children had lived in Washington for two-and-a-half years and that the delay between her evaluation and the trial could be significant. She agreed that “some of the facts that [she] relied on to make [her] determinations are now out of date.” She agreed that the children had probably changed and matured emotionally, psychologically, socially, and physically and that she had not had any contact with the children in more than a year and a half.

¶7        The court held a trial in March 2021 on Father’s petition to modify. Father’s petition was based on his contention that Mother’s move to Washington was selfishly motivated and harmed the children and that Mother had failed to facilitate Father’s role in the children’s lives and had excluded him from decision-making. Father testified about particular instances that, in his view, demonstrated Mother’s inability to co-parent and unwillingness to facilitate his role in the children’s lives. These included:

·         Son’s difficulty in school after the relocation and resultant disputes between the parties about whether to move him to a different classroom or have him tested for autism;

·        Son’s baptism in July 2019 and Father’s role in that event;

·        Mother’s apparent unwillingness to commit to living in Washington for the long term when Father was contemplating relocating there to be closer to the children;

·         Father’s participation in obtaining passports for the children so they could visit Mother’s ill father in Tahiti and Father’s contention that he did not intend to use these circumstances to coerce Mother into moving back to Utah; and

·         Mother’s alleged interference with Father’s visitation in February 2019.

·         ¶8        Mother testified to her version of the events and issues raised in Father’s testimony. Specifically, Mother testified:

·         That her decision to move from Utah was not to get herself and the children away from Father;

·        That she addressed Son’s difficulties in school following the relocation and how she wanted to have him tested for autism as recommended by his teacher but Father did not want the school to do any testing;

·         That Son’s school difficulties had mostly been resolved by the time of trial and that his recent less-than-stellar report card had more to do with remote learning than continued transition issues;

·         That given Son’s his age and stage of development, she believed it was appropriate to let him choose who would baptize him and where the baptism would take place and that Mother never interfered with Father’s wish to perform the baptism;

·         That Father caused a big scene before the baptism ceremony, which Son overheard, and Father demanded that he perform both the baptism and the confirmation;

·        That when Father considered moving to Washington and asked Mother to commit to remaining in the area, Mother did not think it was wise to promise Father that she would live in Washington forever because of the constant litigation she had already experienced over custody;

·         That the conflict that arose when Mother tried to obtain passports for the children in 2018 to visit her father in Tahiti after he had been diagnosed with cancer required her to file an order to show cause in December 2019 to compel Father to complete an affidavit and sign the passport applications, which he eventually did, but the children’s passports did not arrive in time for them to travel to Tahiti before Mother’s father passed away; and

·         That Father does a good job keeping up with and supporting the children’s interests.

¶9        At the conclusion of the trial, Mother asked the court to award her attorney fees.

¶10      In its written ruling issued after the trial, the court addressed Mother’s alleged failure to facilitate Father’s role in the children’s lives. Regarding Son’s baptism, the court found that Father had adduced no evidence demonstrating that Mother had broached the subject of baptism with Son in an attempt to create contention, or that Son had suffered any psychological harm from Mother’s actions. The court found, however, that the evidence admitted “demonstrates poor judgment on Father’s part,” that the only evidence of conflict surrounding the baptism was created by Father himself, and that the “only harm [Son] suffered was having to overhear Father yelling at [Son’s] bishop . . . inside the closed bishop’s office.”

¶11 Regarding the circumstances surrounding obtaining the children’s passports, the court was extremely critical of Father’s actions. Among other things, it found that Father’s actions were “senselessly cruel” and “among the most reprobate [the] court [had] encountered in a domestic relations case.” It faulted Father for using “the imminent death of a grandparent as a bargaining chip” and found that his behavior “demonstrates that his control over the children’s welfare must be reduced.”

¶12 The court also addressed Mother’s move to Washington, finding that the move did not cause the children harm or interfere with the parties’ ability to co-parent. Specifically, the court determined that both parents had chosen to live in places that did not prioritize proximity to the other parent—Mother moving to Washington to remarry and attend school after living in Utah for more than three years and Father remaining in New Jersey while Mother and the children returned to Utah and then moving to Salt Lake County with his wife rather than moving to a place within fifteen miles of the children (until Mother indicated she would be relocating). Moreover, the court noted that although Father is “untethered,” in that he is employed for a company that allows him to work from home and he could live and work anywhere, he is unwilling to move unless Mother commits to remain in Washington, which she had not done because she eventually wants to work as a pharmacist and may need to move for that career. The court found that Father’s decision to remain in Utah despite his ability to move reflects his choice not to live close to the children.

¶13      As far as the children’s best interest in staying in their current placement, the court found that Mother’s spouse has an extensive family network with whom the children have grown close and share a Pacific Islander heritage. Besides a strong family connection, the children also have close friends in the area, which the court found to be good for the children. And due in part to the length of time spent in Washington, the court found that “[o]verall, the children’s social network is stronger in Washington” than in Utah. The court also determined that no evidence supported Father’s assertion that the move to Washington caused Son to have behavioral issues at school. If anything, Father’s refusal to allow Son to be tested for autism or to allow him to change classrooms when he started having trouble has potentially caused continuing suffering for Son and created stalemates between the parents that Father chose to address in the courts. Father’s proclivity for litigation, which he can afford and which the court found bordered on harassment, caused harm to the children, created unpredictability, and demonstrated less-responsive parenting.

¶14      The court found that both Mother and Father have capacity to parent and to co-parent and have excellent parenting skills. But the court determined that Mother “exhibits greater respect of Father’s role than Father does of Mother’s.” Specifically, the court found that “[w]hen the children ask Mother a question on which Father should be consulted, she tells them ‘I’ll talk to your dad about that and we’ll decide together.’” The court recognized that the children’s bond with Father is very strong, but it agreed with Evaluator that “the children are more bonded with Mother in light of being under her primary care for their entire lifetimes.”

¶15      The court analyzed the custody factors found in section 30­3-10(2) of the Utah Code and made the following determinations:

·        Both parents demonstrate an appropriate understanding of, and responsiveness to, the developmental needs of the children, but Mother’s openness to the advice and assistance of professionals exceeds Father’s.

·        Both parents have an excellent capacity to parent and co-parent and endorse the other’s role in the presence of the children. Except for Mother’s use of inappropriate terms in some of her written communication (which the court believed was on the mend), “both parents appropriately communicate with the other, encourage the sharing of love and affection, and exhibit a willingness to allow frequent and continuous contact with the other parent.” However, Mother exhibits a greater respect for Father’s role in the children’s lives than Father does for Mother’s.

·         Father has relinquished both custody and parent-time in the past.

·         Both parents desire custody and time with the children. Mother has been the primary caretaker and Father has made it a priority to maintain good contact with the children. But “Mother’s commitment to the care and custody of the children exceeds Father’s.”

·         Both parents have always cared for the children financially and are financially responsible, but “Mother has expressed more constant and less evasive financial responsibility than Father.”

·         The children enjoy a strong social and familial network in Washington with their stepfather and his side of the family and have close friends there. The children also enjoy the close proximity of their stepmother and her family and their maternal aunt and grandmother in Utah. Overall, the children’s social network is stronger in Washington.

·         The children are more bonded to Mother because she has always been their primary caretaker.

·        The children have both benefitted and suffered from the sharing of parental responsibilities. Father is very involved and committed to his role. “But Father’s veto-power over decisions regarding the children’s health, education, and welfare” has prevented Son from being tested for autism, prevented Father from honoring Son’s preferences at his baptism, and “prevented the children from traveling to see their dying grandfather in Tahiti.”

·        The parents are generally able to cooperate with each other and make decisions jointly but struggle to reach agreement on significant decisions in the children’s best interest and these frequent stalemates harm the children. Specifically, the court noted that the parents could not communicate effectively to make Son’s baptism conflict-free and they could not agree on how to address Son’s difficulties in school after the relocation or obtain passports for the children. “Given her less affluent status, Mother usually surrenders in the face of disagreement because she cannot afford to take the matter further. Father, however, has substantial funds at his disposal, and has exhibited the ability and willingness to press his concerns in the courts.”

·         Both parents ensure that the children are protected from conflict, except for Father’s refusal to complete the passport paperwork to allow the children to travel to Tahiti, which harmed the children, and allowing Son to overhear the conflict over his baptism.

¶16      After weighing the evidence and the statutory factors, the court concluded that granting Father’s petition and relocating the children back to Utah would not be in their best interest. The court found that the children are doing well in their current circumstances and that they are primarily bonded with Mother as their primary caretaker. “Father has presented no evidence that removing primary custody from Mother would be in the children’s best interests. . . . [Rather,] doing so would be harmful to the children.” The court determined that “the children are happy in Washington, that the parties have successfully mitigated the effects of distance on parent-time, that Father continues to enjoy a healthy relationship and strong bond with the children, and that the current custody arrangement is working well.” The court noted that the trial evidence “establish[ed] that [Father] and Mother have been extraordinarily successful in managing the geographical distance between them,” “that the children do not grasp the gravity of the distance,” and that “all evidence indicates that the children are happy, thriving, and well-adjusted in the current circumstances.” The court found that none of the statutory custody factors favored a change in custody.

¶17 Accordingly, the court denied Father’s petition to modify custody and his request that he be awarded primary custody if Mother did not relocate to Utah. The court ordered joint legal custody to continue but awarded Mother final decision-making authority as to the children’s health, education, and welfare. It also ordered that Mother “should be designated as the parent with the sole legal right to determine the residence of the children.” The court denied Mother’s request for an award of attorney fees because (1) she presented no evidence of her need for such an award and (2) even though Mother had ultimately prevailed, Father’s petition was not frivolous because it had been supported by Evaluator’s recommendation for a change in custody. But the court then explained that it chose to disregard the custody evaluation because it was “outdated and fail[ed] to adequately address the evidence presented at trial.”

ISSUES AND STANDARDS OF REVIEW

¶18 Father now appeals the court’s denial of his petition to modify, including its decision to reject Evaluator’s recommendation. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 26, 505 P.3d 1136 (quotation simplified). We will not disturb a district court’s findings of fact unless they are clearly erroneous. See Robertson v. Robertson, 2016 UT App 55, ¶ 5, 370 P.3d 569. And “[a]lthough a district court is not bound to accept a custody evaluator’s recommendation, the court is expected to articulate some reason for rejecting that recommendation.” R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137.

¶19 Mother cross-appeals and challenges the court’s denial of her request for attorney fees. We review a district court’s attorney fee determination for an abuse of discretion. Jensen v. Jensen, 2009 UT App 1, ¶ 7, 203 P.3d 1020.

ANALYSIS

¶20 Father argues the district court erred in denying his petition to modify. Father’s challenge comprises two parts. First, Father takes issue with the court’s weighing of the evidence and its associated factual findings and conclusions. Second, Father challenges the court’s decision to reject Evaluator’s recommendation. We address each of Father’s arguments in turn. Lastly, we address Mother’s cross-appeal concerning the denial of her request for attorney fees.

I. The Evidence Supports the District Court’s Determination to Deny the Petition to Modify

¶21      Father’s first argument on appeal is that the district court ignored the evidence presented at trial that supported Father’s position that it was in the best interest of the children to move them back to Utah and that he should be awarded primary custody if Mother did not relocate with them. Father also argues that the court viewed the evidence presented from a biased perspective. In the context of determining custody, the district court is to analyze the best interest of the children through the custody factors outlined in section 30-3-10(2) of the Utah Code. Generally, it is within the court’s discretion to consider each custody factor and accord each factor the appropriate weight. See Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. The “court’s discretion stems from the reality that in some cases the court must choose one custodian from two excellent parents, and its proximity to the evidence places it in a more advantaged position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). Thus, a custody determination “may frequently and of necessity require a choice between good and better.” Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982).

¶22      While the district court is accorded discretion in weighing the statutory custody factors, “it must be guided at all times by the best interests of the child,” see Tucker, 910 P.2d at 1214, and it “must set forth written findings of fact and conclusions of law which specify the reasons for its custody decision,” see id. at 1215. “Whenever custody is contested, the district court must provide the necessary supporting factual findings that link the evidence presented at trial to the child’s best interest and the ability of each parent to meet the child’s needs.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 27, 414 P.3d 933.

¶23      Moreover, the factual findings of the district court “will not be disturbed unless they are clearly erroneous” by being “in conflict with the clear weight of the evidence.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (quotation simplified). And “the existence of conflicting evidence is not sufficient to set aside a [district] court’s finding.” Bond v. Bond, 2018 UT App 38, ¶ 6, 420 P.3d 53 (quotation simplified). Rather, “to successfully challenge a [district] court’s factual findings on appeal, 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 (quotation simplified).[2] Thus, a party challenging the sufficiency of the evidence to support a custody decision will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal. See State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645. In addition, a district 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.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

¶24      On appeal, Father asserts that the district court ignored evidence that was presented to Evaluator and to the court at trial. But on appeal, Father has not wrestled with the evidence that supports the court’s conclusion that most of the custody factors favor Mother, and he has made no attempt to marshal the evidence that supports the court’s factual findings. Father “clearly views the evidence as compelling a different outcome, but it is not within our purview to engage in a reweighing of the evidence, and [Father] has not demonstrated that the evidence underlying the [district] court’s findings is insufficient.” See id. ¶ 9 (quotation simplified). We address Father’s specific challenges to the court’s conclusions below.

A.        Father’s relinquishment of parent-time with the children by voluntarily choosing not to live close to them

¶25      Father complains that the district court misunderstood and ignored the evidence when it determined that Father had made decisions that minimized his parent-time. But Father has not addressed the evidence the court chose to credit nor demonstrated how that evidence was insufficient for the court to conclude that Father had not prioritized living close to the children to maximize his parent-time. That is, the court found the following evidence convincing:

·         While the family lived in New Jersey in 2015, and after Father announced he wanted a divorce, Mother offered to move out of their apartment so the children could remain with Father. Father declined this offer and advised Mother to return to Utah with the children.

·         Father remained in New Jersey for over a year before moving back to Utah.

·         After the parties mediated a settlement in August 2017 wherein Father could exercise more parent-time if he moved within fifteen miles of Mother’s residence, he did not do so. Instead, Father remarried in 2018 and moved to his wife’s residence in Salt Lake County (Mother’s residence was in Utah County).

·         Father rented an apartment within fifteen miles of Mother’s residence in Utah County only after she had announced her intention to relocate to Washington.

·        Father is employed by a company that allows him to work from home and his wife does not work outside the home, so Father’s employment does not necessarily tie him to Utah. Father has even shopped for houses in Washington but requires a commitment from Mother that she will remain there long term before he will move.

·        Evaluator opined that despite Father’s valid professional and financial motives for staying in New Jersey and then in Utah, Father failed to capitalize on the opportunity for more frequent parent-time by living close to the children.

¶26 Father appears to fault the court for not considering dispositive his testimony that he sought and exercised more than the minimum parent-time once he returned to Utah in 2016. Father asserts that this evidence disproves the court’s determination that Father had not prioritized his time with the children. But “Father [doing] what was within his rights . . . to exercise the expanded parent-time” was not persuasive to the court given the evidence listed above. And Father has not challenged any of the factual findings that support the court’s conclusion that he did not make choices for his living situation to be closer to the children. Father simply challenges how the court considered the evidence that supports his position.

¶27 The existence of conflicting evidence in the record is not sufficient to set aside a district court’s findings. See Nebeker v. Orton, 2019 UT App 23, ¶ 16, 438 P.3d 1053. “The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” Kimball, 2009 UT App 233, ¶ 20 n.5 (quotation simplified). The district court’s “mission” is “to consider and weigh all the conflicting evidence and find the facts.” Id. Thus, even though “contrary facts might have been found from all the evidence,” this court defers to the district court’s “pre-eminent role as fact-finder,” and we “take the findings of fact as our starting point, unless particular findings have been shown . . . to lack legally adequate evidentiary support.” Id. Because Father has not directly challenged any of the court’s subsidiary findings supporting its determination that Father made decisions that minimized, rather than maximized, his parent-time, we will not reweigh the evidence.

B.        The circumstances surrounding Son’s baptism

¶28      Father complains that the issue surrounding Son’s baptism “is an issue of legal custody . . . [and] should [have been] discussed between the parents before decisions [were] made.” Father asserts that the district court committed legal error when it failed to rule that a decision about who will perform a child’s baptism is a major parenting decision that should not be left up to a child. Father also takes issue with the court crediting Mother’s testimony about the dispute that occurred before the baptism— and not Father’s testimony that he did not agree with the accounts that he was yelling or losing his cool—to determine that the circumstances of the event demonstrated poor judgment on Father’s part and that Father’s actions caused Son harm.

¶29      On the facts of this case, we cannot fault the district court for its determination that who performs the various parts of a child’s religious ceremonies within the shared religious tradition of both parents (as opposed to whether the ceremonies will be performed at all) is not a major parenting decision requiring the agreement of both parents. Father cites no authority for the proposition that the decision about who performs a religious ceremony is equivalent to decisions concerning a child’s medical care, school attendance, or overall religious practice. Nor has Father challenged any of the factual findings that support the court’s conclusion that Father had failed to demonstrate that Mother’s decision to allow Son to have “input regarding his own baptism was an unhealthy or unwise parenting decision.” Thus, Father cannot show the court erred in considering this decision to be something other than a major parenting decision. And while we understand that Father is unhappy with the court’s conclusion that Father’s behavior before Son’s baptism showed poor judgment on his part rather than ineffective co-parenting on Mother’s part, the evidence in the record supports the court’s conclusion that Mother’s parenting regarding the baptism was not problematic, and we will not reweigh the evidence.

C.        The circumstances surrounding having Son tested for autism

¶30 Father next takes issue with the court’s findings about whether the children have benefitted from the parties’ sharing of parenting responsibilities and about the abilities “of the parents to give first priority to the welfare of the [children] and reach shared decisions in the [children’s] best interest.” See Utah Code § 30-3-10.2(2)(b). Among other things, in determining that Mother should be designated the final decision-maker as to the children’s health, education, and welfare, the court found that Father exhibited an “injudicious use of his veto power over decisions relating to the children’s health” and had “evidenced [a] tendency to act contrary to the children’s interests and to use those interests as leverage against Mother.” But Father’s complaint that the evidence demonstrated that he suggested they not rush into testing Son for autism rather than that he objected to the testing does not diminish the court’s determination that “Father’s veto-power over decisions regarding the children’s health, education, and welfare [] prevented [Son] from being tested for autism at a time when educational professionals believed the test would be helpful to address his needs.” Thus, we agree with Mother that “[e]ven if the court should have used the word ‘delayed’ rather than ‘prevented’” in its finding, Father has not shown how the court’s decision to award Mother final decision-making authority was an abuse of discretion or legal error.

D.        The circumstances surrounding obtaining the children’s passports

¶31 Father next challenges the court’s view of the circumstances surrounding Mother’s attempts to obtain passports for the children in time to visit her cancer-stricken father in Tahiti in 2019. Father argues that the court’s pointed and direct comments about this incident are overly aggressive and suggest that this evidence was the “ultimate basis for [the court’s] ultimate conclusion.” Father asserts that he did not interfere with the passport applications or attempt to condition his facilitation of the passports upon Mother’s promise to return to Utah and suggests that Mother was at fault for not obtaining the passports in time. But, once again, on appeal, Father selectively highlights the evidence he submitted at trial, asserts that the evidence supports a different outcome, and criticizes the court for not crediting his testimony rather than Mother’s. It is not this court’s “purview to engage in a reweighing of the evidence.” Shuman v. Shuman, 2017 UT App 192, ¶ 9, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018). In fact, when “a foundation for the court’s decision exists in the evidence, [we] may not engage in a reweighing of the evidence.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. On appeal, this court will look to whether the district court’s decision is supported by the evidence and in cases where the appellant has “merely point[ed] to evidence that might have supported findings more favorable to them” rather than “identify[ing] flaws in the evidence relied on by the [district] court that rendered” the court’s findings clearly erroneous, we will not reverse. Shuman, 2017 UT App 192, ¶ 8 (quotation simplified). Because the court’s decision is supported by the record and Father has identified no fatal flaws in the evidence upon which the court relied, we will not reweigh the evidence.

E.         The reasons and representations given for Mother’s relocation to Washington

¶32 Father next challenges the court’s view of Mother’s relocation. Father appears to attack Mother’s honesty and credibility by asserting that the reasons she gave for her move to Washington were not true. But Father did not appeal the court’s order approving Mother’s relocation, and by not directly challenging the district court’s findings about Mother’s move, Father has failed to persuade us that the court’s determination that “Mother’s move to Washington was not contrary to the children’s interests” was an abuse of discretion or legal error since it “is undisputed that the children are thriving and happy there”.

F.         The district court’s custody factor findings

¶33      Father challenges the court’s determination that evaluation of the statutory custody factors favored denying his petition to modify and awarding Mother more decision-making authority. Specifically, Father argues that the court’s analysis of the custody factors is not supported by the evidence with regard to (1) the parents’ commitment to the care and custody of the children, (2) not disrupting a custody arrangement where the children are happy and well-adjusted in their current circumstances, (3) the respect each parent affords the other parent’s role, (4) the parents’ ability to make decisions jointly, and (5) whether it was better to remain in Washington versus returning to Utah.

¶34      But Father does not tie his argument to a particular custody factor or explain how the court’s findings in these areas are critically important to the overall custody determination. Nor does Father explain how the court’s findings on these factors are against the clear weight of the evidence. “Generally, it is within the [district] court’s discretion to determine . . . where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “While the district court is accorded discretion in weighing these factors, it must be guided at all times by the best interests of the child.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 30, 505 P.3d 1136 (quotation simplified).

¶35      Father’s argument that the court disregarded the evidence that supports his preferred evaluation of the statutory custody factors is not persuasive. It is not this court’s role to reweigh the evidence to see if we would reach a different conclusion from that of the district court. Father has not demonstrated that the court’s evaluation of the custody factors lacks evidentiary support or that any finding regarding each factor is against the clear weight of the evidence. Given this, we cannot say that the court abused its discretion or committed legal error in concluding that “none of the factors favor a change in custody” or that “[t]he critically important factors—bonding and continuity of placement— strongly favor leaving primary custody with Mother.”

¶36 In sum, Father has not directly challenged any of the court’s specific findings supporting the determinations listed above. Indeed, he simply highlights evidence he claims the district court ignored. Without a direct challenge to any specific finding, we consider the district court’s findings as established and will not reweigh the evidence.

II. The District Court Did Not Abuse Its Discretion When It
Rejected Evaluator’s Recommendation

¶37      Father contends that the district court erred in rejecting the recommendations and testimony of Evaluator. “Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation simplified). “This is because . . . the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony . . . even if that testimony comes from an expert witness.” Woodward v. Lafranca, 2016 UT App 141, ¶ 13, 381 P.3d 1125 (quotation simplified), cert. denied, 384 P.3d 570 (Utah 2016). These principles apply to a court’s assessment of the opinions offered by a custody evaluator. Indeed, a “district court is not bound to accept a custody evaluator’s recommendation,” but if a court chooses to reject the evaluator’s opinion, it “is expected to articulate some reason for” doing so. See R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137. In this case, while the court could have perhaps more fully explained its reasons for rejecting Evaluator’s recommendations, in our view the court had sufficient reasons for doing so and adequately explained itself.

¶38      Father first contends that the district court erroneously rejected Evaluator’s recommendations because the court had unreasonable expectations of Evaluator, that it was incumbent on the court to solicit further information from Evaluator through questioning at trial if the court thought her report was insufficient, and that the court should have accepted Evaluator’s recommendation without question because the court did not contest her qualifications and admitted her report into evidence without objection. But the record does not support Father’s complaints, and he does not support his argument with legal citation. The court invited Evaluator to augment her report at trial by “putt[ing] in context or explain[ing] or add[ing] flesh to the bones of the report,” and the court dialogued at length with Evaluator during direct questioning and cross-examination. Father’s complaint that the court discouraged additional testimony or additional explanation from Evaluator because it stated during her examination that “[n]ow that I have received the report, if she’s just going to read it, maybe there’s more effective ways for her to spend her time” is not compelling, especially because Father’s counsel agreed to “expedite the process a bit” by then focusing on Evaluator’s recommendations. Thus, Father does not persuade us that the court abused its discretion or committed legal error in choosing not to ask Evaluator further questions.

¶39      Next, Father takes issue with the court’s decision to reject Evaluator’s recommendation because it was “outdated” at the time of trial.[3] But Father fails to acknowledge that while all the statutory custody factors are equally important, “[a]t the critically important end of the spectrum, when [a] child is thriving, happy, and well-adjusted, lies continuity of placement.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Utah law requires courts to “give substantial weight to the existing joint legal . . . custody order when the child is thriving, happy, and well-adjusted.” Utah Code § 30-3-10.4(2)(c). And here, the court relied heavily on continuity of placement as the basis for rejecting Evaluator’s report. The court found that the evidence presented at trial was “virtually unanimous” in establishing that the children were “happy, well-adjusted, and thriving under [their] current arrangement” and it rejected Evaluator’s contention that relocating the children back to Utah would not be that big of a deal because “[w]e don’t have a child . . . moving into a different developmental phase or a child with specific developmental needs.” Because the court heard the evidence on both sides and it explained why it was rejecting certain evidence, the court did not abuse its discretion or commit legal error. Thus, we see no infirmity in the court’s determination that Evaluator’s report was outdated by the time of trial.

¶40      We are, of course, sensitive to the emotional undercurrents giving rise to Father’s challenges on appeal. This appears to have been a very difficult case for both parties—both of whom love and care for their children. And we acknowledge the district court’s determination that both “parents are well suited to parent the children [who] are surrounded by an unusual amount of love on both sides of the family. . . . All children everywhere deserve to be loved as much as these children are.” But ultimately, the fact that Father disagrees with the court’s decision to deny his petition to modify does not render the district court’s findings inadequate or unsupported by the evidence, nor does it require an outright grant of custody in his favor. See Shuman v. Shuman, 2017 UT App 192, ¶ 10, 406 P.3d 258, cert. denied, 412 P.3d 1257 (Utah 2018).

¶41 In sum, Father has failed to meaningfully address the evidence supporting the district court’s findings or persuasively demonstrate that those findings are against the clear weight of the evidence or legally erroneous. We therefore affirm the district court’s denial of Father’s petition to modify custody and its associated adjustment to the parties’ legal custody arrangement.

III. Mother’s Attorney Fees Request

¶42 Finally, we address Mother’s challenge to the district court’s denial of her request for attorney fees incurred in responding to Father’s petition to modify. Mother asserts entitlement to fees under two different statutes, but we reject both of her arguments.

¶43 First, Mother claims that the court should have awarded her fees pursuant to a statute authorizing a court to award fees in cases where the “action” was “filed or answered frivolously and in a manner designed to harass the other party.” See Utah Code § 30-3-10.4(5). The court determined that whether the litigation was frivolous or filed with the intent to harass was “a very close call” but that Evaluator’s change-of-custody recommendation provided Father with at least some basis to file his petition. We agree. The district court has discretion to determine whether an action was filed frivolously or with an intent to harass, and we will not substitute our judgment for that of the district court unless the action it takes is so flagrantly unjust as to constitute an abuse of discretion. See Wall v. Wall, 700 P.2d 1124, 1125 (Utah 1985). We discern no abuse of discretion in the court’s determination not to award fees under section 30-3-10.4(5) of the Utah Code.

¶44      Second, Mother claims that the court should have awarded her fees under a different statute, one that authorizes courts to order one party to pay fees to the other in order “to enable the other party to prosecute or defend the action.” See Utah Code § 30­3-3(1). The court denied Mother’s request for fees under this statute based on its determination that Mother did not produce evidence of her financial need. When reviewing requests for attorney fees in divorce proceedings, “both the decision to award attorney fees and the amount of such fees are within the [district] court’s sound discretion.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 10, 176 P.3d 476 (quotation simplified). However, the party to be awarded attorney fees under this statute has the burden to prove (1) that the payee spouse has a financial need, (2) that the payor spouse has the ability to pay, and (3) that the fees requested are reasonable. See Dahl v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276.

¶45 Here, Mother argues that the district court erred in concluding that an award of fees was not warranted when it determined that “Mother did not adduce any evidence of her need for an award of attorney’s fees under section 30-3-3(1).” Mother contends that there was evidence before the court to demonstrate her need and Father’s ability to pay. Specifically, Mother points to the parties’ stipulated order from 2017 that showed the parties’ incomes and the custody evaluation that reported the parties’ incomes in 2020. But Mother did not point to this evidence in connection with her fee request, and we do not think it is incumbent on a district court to comb through the record to find evidence of a party’s need. Rather, the party to be awarded fees has the burden to submit that evidence or at least point the court to that evidence and ask that the court utilize that evidence to determine need.

¶46      Accordingly, we affirm the district court’s conclusion that fees were not warranted in this case.

CONCLUSION

¶47      We conclude that the evidence supports the district court’s findings and conclusions that relocating the children back to Utah would not be in the children’s best interest and supports the denial of Father’s petition to modify. We further conclude that the district court did not abuse its discretion in denying Mother’s request for attorney fees. Affirmed.

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


[1] Mother has remarried and has adopted her husband’s surname, Sahim.

[2] As this court stated in Kimball v. Kimball, 2009 UT App 233, 217

P.3d 733:

After all, it is the [district] court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts. No matter what contrary facts might have been found from all the evidence, our deference to the [district] court’s pre-eminent role as fact-finder requires us to take the findings of fact as our starting point, unless particular findings have been shown, in the course of an appellant’s meeting the marshaling requirement, to lack legally adequate evidentiary support.

Id. ¶ 20 n.5.

[3] In addition to rejecting Evaluator’s report for being outdated, the court rejected the report because it “fail[ed] to adequately address the evidence presented at trial.” Specifically, the court noted that the report “mentions but glosses over Father’s sending the children away from New Jersey, choosing several times thereafter not to live near the children (including now), preventing them from traveling to Tahiti, and declining to engage [Son] regarding his baptism.” Father takes issue with the court’s reasoning on each point, arguing that the court “did not agree with [Evaluator’s] expert view and analysis of the evidence.” But his argument is limited to merely explaining his view of why each of these events happened and why Evaluator did not find them important. Father does not show that the court’s view was unsupported by the evidence. And regardless of these stated reasons, the court’s decision to reject the report because it was outdated was entirely proper.

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In re G.H. – 2023 UT App 132 – juvenile court grandparent guardianship

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF G.H. AND R.H.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

L.G.,

Appellant,

v.

R.G. AND R.G.,

Appellees.

Opinion

No. 20220920-CA

Filed November 2, 2023

Seventh District Juvenile Court, Price Department

The Honorable Craig Bunnell

No. 1210014

Steve S. Christensen and Clinton Brimhall,

Attorneys for Appellant

Colleen K. Coebergh, Attorney for Appellees

Martha Pierce, Guardian ad Litem

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1        The maternal grandparents of two children filed a petition for guardianship, alleging neglect by both parents and abuse at the hands of the children’s father. The guardianship was contested, and a trial was held. After trial, the juvenile court granted the petition, finding facts consistent with the allegations of the petition and determining that the guardianship was in the best interest of the children. Further, the juvenile court determined that the mother’s parent-time, if any, would take place at the unfettered discretion of the grandparents. The mother appeals, claiming the juvenile court erred in determining neglect, erred in failing to order parent-time, and wrongfully denied a motion to change venue as to one of the children. For the most part, we affirm. However, the juvenile court’s findings regarding the mother’s parent-time rights are inadequate, and we therefore remand this matter for the entry of further findings and conclusions as necessary.

BACKGROUND

¶2        AG (Mother) and JH (Father) are the natural parents of GH and RH (the Children).[1] In April 2022, Mother’s parents, RG and RG (Grandparents), petitioned for guardianship and custody of the Children, alleging that such a placement was in the best interest of the Children due to Father’s abuse and both parents’ neglect. A few days later, Grandparents filed an ex parte motion for temporary custody of the Children, and the juvenile court granted the request.

¶3        At a pre-trial hearing, Mother asked for an expedited evidentiary hearing regarding temporary custody. The court declined that request and instead held a combined adjudication and disposition hearing over two trial days in July and August 2022.

¶4        After that hearing, the court issued an order setting forth findings of fact and conclusions of law regarding adjudication and disposition. Because Mother does not dispute the findings of fact, we recite the facts directly from the juvenile court’s findings.[2]

¶5        The court took judicial notice of a 2019 order in which the same court terminated Mother’s parental rights to an older child, who was adopted by Grandparents shortly thereafter. Mother stated she had “no idea” why her maternal rights for the older child were terminated, but the record shows that it was primarily due to Mother’s neglect.

¶6        Mother moved in with Grandparents in Price, Utah, in July 2019 and lived with them through the first part of January 2022. From June through September 2021, Mother worked evenings (5:00 p.m. to 9:00 p.m.). She had surgery for “a minor thing” in September 2021. Mother was unemployed until she obtained full-time employment in December 2021. At this job, she worked ten-hour shifts (10:00 a.m. to 8:00 p.m.) four days per week.

¶7        While living with Grandparents, Mother “relied on [Grandparents] almost exclusively and for nearly everything for [the Children] . . . . [Grandparents] were the primary caretakers for [the Children’s] day-to-day physical, developmental, medical, and financial needs.”

¶8        With regard to the Children’s physical needs, Mother “did very little to make arrangements for [the Children], provide basic care, or assist with household duties,” even when asked to do so. She did not provide “day-to-day food or meals” for the Children, nor did she help with potty training GH.

¶9        Regarding developmental needs, Grandparents provided for “the vast majority of [the Children’s] indoor and outdoor activities, toys, and one-on-one parent-role interactions.” Mother “did very little to actually parent [the Children] or care for their needs,” and she did not assist with “mothering” the Children. When asked to care for the Children, other than watching the Children for about five hours some weekdays when Grandparents were both working, “Mother would often say she was too tired, too busy, be on her phone or smoking, or on her bed resting or lounging.”

¶10      Mother’s sister (Sister) would often visit Grandparents’ house (about two times each week when Grandparents were not there), and she observed Mother being “verbally abusive or terse with [the Children],” leaving them “unattended or unsupervised, not changing diapers as needed, or not caring for them.” The court also found, based on Sister’s testimony, that Mother would often “come to [Sister’s] house (at times unannounced) without child­care supplies or clothes,” asking for help with the Children because Mother was “tired, needed a break, going out with friends, or going to work (although, at times, she did not go to work, but went back to [Grandparents’] house to sleep or smoke).”

¶11 Financially, Mother sometimes shared her government food assistance card but relied on Grandparents for most of the Children’s financial needs. She also relied on Grandparents to provide birthday or Christmas gifts for the Children. She did, however, reimburse Grandparents a few hundred dollars and paid for some daycare.

¶12 Regarding medical needs, Mother took the Children for immunizations, but she did not take them to other types of medical appointments or help Grandparents when the Children were sick with ear infections, colds, or other maladies.

¶13 In January 2022, Mother moved in with another relative (Step-Grandmother) in Highland, Utah, which was twenty minutes from her newly acquired job. Grandparents continued as GH’s primary caretakers in Price, but RH moved to Step-Grandmother’s house with Mother.

¶14 During this time-period, RH received daily and weekly care in four different cities separated by nearly a hundred miles and by four different caregivers besides Mother, namely Step-Grandmother, Great-Grandmother, Father’s mother, and Grandparents. Essentially, Grandparents and Great-Grandmother would relieve Step-Grandmother when she was not available to watch RH. Sometimes Mother would be the one to take RH to Great-Grandmother’s house. Step-Grandmother, Grandparents, the maternal great-grandmother (Great-Grandmother), or Mother transported RH, and sometimes GH, from house to house on weekends. Mother’s mother handled most of the Children’s care coordination, “unless Mother needed to preplan to accommodate her own work schedule.” RH did not stay in “one consistent place or house” during this time-period; RH was at a “different house almost every day of the week, and each week was different than the last.”

¶15 Watching Mother with the Children “scared” Step-Grandmother, and she never saw Mother being “a mother” to the Children. Mother was “negative verbally” to the Children and “put her own wants and needs before RH’s needs.” Mother would get upset when Step-Grandmother wanted to go out, making it necessary for Mother to watch RH.

¶16 Mother provided very little assistance to Step-Grandmother with household duties, except for washing her and RH’s clothes, and “Mother’s bedroom was always cluttered (with RH’s clothes on the floor) and never cleaned.” Mother put RH to bed half the time, but Step-Grandmother noted that the time was never consistent, as Mother sometimes would come home as late as 10:30 p.m. On some Friday nights, Mother did not come home at all until later that weekend.

¶17 While living with Step-Grandmother, Mother changed RH’s diaper only about once per day; smoked cigarettes “all the time”; was “always on her phone”; did not give baby food or regular feeding; and did not read to, play with, sing to, or bathe RH.

¶18      In mid-March 2022, Mother moved into a rental house in Murray, Utah, with RH. Although Step-Grandmother no longer provided RH daily care after the move, Mother still used Grandparents, Great-Grandmother, and Father’s mother to care for RH. Mother’s work schedule changed to eight hours per day, five days per week (12:00 p.m. to 8:00 p.m. or 2:00 p.m. to 10:00 p.m.). Grandparents primarily watched RH on weekends. GH continued to live with Grandparents.

¶19 On April 5, 2022, Mother picked up Father from prison, and he lived with Mother from then until at least July 2022, when Mother learned—on the first day of trial through Father’s probation officer’s testimony—that Father had used drugs just a week before. Before hearing this testimony, “Mother did not believe he would use drugs.” Mother allowed Father to watch the Children unsupervised, and until trial, she had planned to continue living with him, despite knowing that Father was convicted of assaulting someone in prison two months prior to his release and despite complaining to Grandparents that Father was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her.” Father’s assault conviction “did not cause her any concern” about him being with her or the Children.[3] The court found that Mother’s reintroduction of Father into the Children’s lives “was an emphatic demonstration to the Court of Mother’s poor judgment and her continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”

¶20 Mother made efforts to obtain a full-time job and to perform well at her job to provide for her and the Children.[4] But the court concluded that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs” of the Children. Instead, Grandparents, Step-Grandmother, Great-Grandmother, and others provided “the crucial day-to-day parenting and caretaking that are necessary for [the Children] to thrive developmentally and otherwise.”

¶21 The court also found that the Children “thrived living together with [Grandparents] prior to Mother moving out of [Grandparents’] home in January 2022” and after being reunited in Grandparents’ home in April 2022. The court noted that Grandparents “demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.” The court emphasized that the Children should be living together.

¶22      Based on these factual findings, the court concluded there was clear and convincing evidence that Mother neglected the Children. The court also concluded, based on clear and convincing evidence, that the Children’s best interests would be met by granting Grandparents permanent custody and guardianship. Additionally, the court ordered that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management of [Grandparents].”

¶23 As relevant here, Mother moved the court to dismiss Grandparents’ petition for improper venue or to transfer venue, which the court denied. Mother now appeals.

ISSUES AND STANDARDS OF REVIEW

¶24 Mother argues that the juvenile court erred when it determined that the Children were neglected. Mother clarifies that she is not disputing the court’s findings of fact but the court’s application of these findings to the law; therefore, “we accept these findings as true in our analysis on appeal.” d’Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147 P.3d 515. “We view the question presented here as law-like because it concerns whether the facts as constituted meet the legal standard of the statute. . . .

Accordingly, we review the issue presented here giving no deference to the juvenile court.” In re A.B., 2021 UT App 91, ¶ 10, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168.

¶25 Mother also argues that the juvenile court erred in not awarding her parent-time and thus failing to give due consideration to her residual parental rights. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).

¶26 Finally, Mother argues that the juvenile court erred in denying her motion to dismiss or transfer based on venue. Venue “is a question committed to the district court’s discretion, which we review for an abuse of discretion.” Davis County v. Purdue Pharma, LP, 2020 UT 17, ¶ 7, 463 P.3d 619.

ANALYSIS
I. Neglect

¶27      “If, at the adjudication[5] hearing, the juvenile court finds, by clear and convincing evidence, that the allegations contained in the abuse, neglect, or dependency petition are true, the juvenile court shall conduct a dispositional hearing.” Utah Code § 80-3­402(1). “The dispositional hearing may be held on the same date as the adjudication hearing . . . .” Id. § 80-3-402(3). At the dispositional hearing, the juvenile court then “may vest custody of an abused, neglected, or dependent minor in the division or any other appropriate person.” Id. § 80-3-405(2)(a)(i). “If a minor has been placed with an individual or relative as a result of an adjudication . . . , the juvenile court may enter an order of permanent legal custody and guardianship with the individual or relative of the minor.” Id. § 80-3-405(2)(d)(i). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement of a preponderance of the evidence; and something less than proof beyond a reasonable doubt. Put differently, this standard requires the existence of facts that make a conclusion very highly probable.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (cleaned up), cert. denied, 531 P.3d 731 (Utah 2023).

¶28      Neglect is statutorily defined, and can be proved in any one of several ways. See Utah Code § 80-1-102(58)(a)(i)–(vi).[6] While the juvenile court found neglect under several subsections, to affirm we need conclude only that neglect was established under one of the bases. See In re E.F., 2013 UT App 13, ¶ 3, 295 P.3d 1165 (per curiam) (upholding juvenile court’s conclusion that mother neglected child under the sole basis of lack of proper parental care by reason of parent’s faults or habits). Among other bases, the juvenile court found neglect under subsection (ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian.” Utah Code § 80-1-102(58)(a)(ii). We agree with the juvenile court that the evidence supported a finding that this basis for neglect had been proved.

¶29      First and foremost, the factual findings demonstrated that Mother did not attend to the Children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick. Mother also did not show any interest in potty training GH.

¶30      Moreover, Mother did not behave in a manner consistent with parenting a child. For example, Mother did not demonstrate a desire to play with the Children, read or sing to them, or buy them birthday and Christmas presents. And Grandparents were the ones to provide the Children’s indoor and outdoor activities and toys rather than Mother.

¶31      Similarly, the findings revealed that Mother lacked interest in being around the Children, and she would refuse to care for them when asked by the family members with whom she was living. Mother would complain that “she was too tired” or “too busy,” or she would prefer to “be on her phone or smoking, or on her bed resting or lounging.” Likewise, Mother would drop off the Children unannounced at Sister’s house—“without child-care supplies or clothes”—because Mother was “tired, needed a break, [or was] going out with friends, or going to work,” although, at times she went back to Grandparents’ house “to sleep or smoke” instead. Mother also would get upset when Step-Grandmother wanted to go out some evenings, thus leaving Mother to care for the Children. In addition, “Mother did not do household duties when asked to do so.”

¶32 Although the court did acknowledge Mother’s commendable efforts with her current job, it still found that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs of each of [the Children].”

¶33 Furthermore, the findings demonstrate that Mother was not troubled by Father being with her or the Children. Even though Mother knew that Father was convicted of assaulting someone while in prison and said that he was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her,” Mother allowed Father to watch the Children unsupervised and, until learning of his continued drug use at trial, had planned to go on living with him. Additionally, despite Father’s history with drug use, Mother “did not believe he would use drugs.” Mother’s reintroduction of Father into the Children’s lives demonstrated to the court “emphatic[ally]” that Mother showed “poor judgment and [a] continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”

¶34 The court also highlighted that during the time when Mother lived with Step-Grandmother, the Children were cared for by many different caregivers other than Mother. The court found that Grandparents were the main caregivers for GH, and the court emphasized that RH’s daily and weekly care was provided by five different caregivers located in four different cities. Mother argues that a “child is not without proper parental care solely because that care is not always at the hands of a parent” and that it is “not uncommon for parents, especially single working mothers, to place children in daycare or arrange for care with family.” In support of her argument, Mother cites In re A.B., 2021 UT App 91, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168, where we held that a child is not neglected if the child receives proper parental care, “even if not always at [a mother’s] hand.” Id. ¶ 20.

¶35 We agree with Mother that it can be completely appropriate for parents to arrange for others to help them in caring for their children, and we empathize with single parents whose childcare arrangements may not always seem ideal to others of greater means and opportunity. But Mother’s behavior in this case is distinguishable from that in In re A.B. Here, the juvenile court found, and Mother does not dispute, that Mother did “very little to make arrangements” for the Children, would drop off the Children at Sister’s “at times unannounced,” would not come home when she was expected to, and would not take care of the Children when at home. In contrast, In re A.B. concerned a child who spent summers with “welcoming relatives[,] . . . and on agreement, summer turned into a whole year.” Id. ¶ 1 (emphases added). Moreover, that mother arranged the child’s care with the relatives, id. ¶¶ 2–3, and she never refused to take care of her child when she oversaw the child’s care, id. ¶ 19. Therefore, Mother’s reliance on In re A.B. misses the mark.

¶36 Based on the foregoing, we conclude that the juvenile court’s findings of fact meet the legal standard of neglect. See Utah Code § 80-1-102(58)(a)(ii). Therefore, we affirm its grant of permanent custody and guardianship to Grandparents. See id. § 80-3-405(2)(d)(i).[7]

II. Parent-Time

¶37      Mother next argues that the juvenile court erred by failing “to even consider providing Mother parent-time in the final analysis order.” While we don’t quite agree with Mother’s characterization of the order as a complete failure to consider Mother’s residual rights, we agree that remand on this issue is necessary.

¶38 When the juvenile court vests custody of a child in someone other than the child’s natural parent, the court “shall give primary consideration to the welfare of the minor.” Utah Code § 80-3-405(2)(a)(ii)(A). Here the court did so by awarding custody to Grandparents, whom the court found to “have demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.”

¶39      But the court’s responsibilities when awarding custody do not end there. The court also “shall give due consideration to the rights of the parent or parents concerning the minor.” Id. § 80-3-405(2)(a)(ii)(B). This includes consideration of awarding reasonable parent-time. Specifically, the statute provides that “[a] parent of a minor for whom a guardian is appointed retains residual parental rights and duties.” Id. § 75-5-209(5). These residual parental rights include “the right to reasonable parent-time unless restricted by the court.” Id. § 80-1-102(70)(a)(iv). Thus, our legislature intended for juvenile courts to give careful thought to an award of parent-time when granting custody and guardianship to someone else. And we note that parent-time is significant because it offers “the parent the possibility of maintaining a meaningful relationship with the child despite lack of physical custody.” Moreno v. Board of Educ., 926 P.2d 886, 890 (Utah 1996).

¶40      Yet here, the juvenile court simply stated that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management” of Grandparents, without making any findings regarding the amount of parent-time that would be reasonable. Instead, the court delegated that determination entirely to Grandparents. And this could lead to Grandparents denying Mother any parent-time[8] without the court making any findings of fact to justify such a denial.[9] Here, we find the court’s findings and conclusions regarding parent-time to be inadequate.

¶41      A juvenile 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 In re M.G., 2003 UT App 313U, para. 5 (holding that “a review of the court’s oral findings reveals the subsidiary facts and basis for the juvenile court’s written findings and demonstrates that the written and oral findings, taken together, are sufficiently detailed to permit appellate review”). “Put another way, findings are adequate when they contain sufficient detail to permit appellate review to ensure that the [juvenile] court’s discretionary determination was rationally based. Indeed, the [juvenile] court’s obligation to render adequate findings facilitates meaningful appellate review and ensures the parties are informed of the [juvenile] court’s reasoning.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (cleaned up). “Unless the record clearly and [incontrovertibly] supports the [juvenile] court’s decision, the absence of adequate findings of fact ordinarily requires remand for more detailed findings by the [juvenile] court.” Woodward v. Fazzio, 823 P.2d 474, 478 (Utah Ct. App. 1991) (cleaned up).

¶42      We are unable to determine the court’s basis for leaving all parent-time decisions in the hands of Grandparents, a situation that potentially denies Mother any parent-time with the Children.

Accordingly, we vacate the juvenile court’s decision regarding parent-time and remand this matter for specific findings demonstrating what conditions of parent-time are reasonable. If the court determines that it is reasonable to award no parent-time to Mother, then the court must make specific findings to justify such a determination.

III. Venue

¶43 Mother brought a motion to dismiss or change venue on the morning of trial, asserting that the case had been brought in the wrong venue.[10] The juvenile court took the motion under advisement and delayed ruling on the motion until it could take evidence and determine facts relative to venue. In its dispositional order, the juvenile court determined that venue was correct in the Seventh District. Now on appeal, Mother challenges that conclusion only as to RH. Mother maintains that on the day the petition for guardianship was filed, RH was living with Mother in Salt Lake County. Even assuming, for purposes of the discussion, that venue was incorrectly determined to be in the Seventh District as to RH, we affirm the decision of the juvenile court because Mother has failed to show any harm.

¶44 The guardian ad litem’s briefing maintained that Mother needs to show harm to obtain reversal based on an erroneous denial of the motion to change venue as it pertains to RH. Mother does not quibble with this legal assertion but claims that she implicitly identified and showed harm in her principal brief. As both parties have proceeded under the assumption that an appellant must show harm, we will do likewise without deciding that discrete issue.[11] The sole harm Mother points to is that the case regarding RH would have been dismissed and that dismissal would have benefitted Mother. Mother is wrong on the first point and utterly fails to meet her burden of persuasion on the second.

¶45      First, as to automatic dismissal, this result was rejected several years ago by this court when In re adoption of B.N.A., 2018 UT App 224, 438 P.3d 10, explored the consequences of hearing a case in the wrong venue. Initially, we explained that under current precedent, subject-matter jurisdiction is not implicated when a case is filed in the wrong district. Id. ¶¶ 12–24. Then we concluded that the “consequence for filing in the wrong district is not automatic dismissal.” Id. ¶ 25. Instead, “any party, upon proper motion, may request that the case be transferred to the correct district.” Id. So, if the Mother’s motion had been granted, the case would have been transferred, not dismissed. Accordingly, the argument that harm resulted because the case would have been dismissed fails.

¶46 Second, Mother fails to identify any other harm. She merely concludes that “[d]ismissal would have benefitted Mother.” But as just explained, dismissal would not have occurred. And Mother presents no argument that she would have obtained a different result had the case been transferred. Importantly, where Mother does not challenge that the case involving GH would have remained in the Seventh District, we easily foresee that upon transfer, any other juvenile court would have likely transferred the RH case back to the Seventh District under its discretionary powers, and more particularly under rule 42 of the Utah Rules of Civil Procedure.[12] Further, Mother fails to show how the result rendered in a different venue would have been better for her. Thus, Mother fails to meet her burden of persuasion that she was harmed by the denial of her motion to change venue.

¶47      Accordingly, we see no basis to reverse the judgment of the juvenile court on the issue of venue.

CONCLUSION

¶48      We affirm the juvenile court’s determination that Mother neglected the Children and that venue was proper in the Seventh District with regard to RH. We also conclude that the juvenile court made inadequate findings regarding its parent-time award. Therefore, we vacate the court’s award of sole discretion over Mother’s parent-time to Grandparents and remand the matter for further proceedings consistent with this opinion to consider Mother’s residual parental rights when determining a reasonable award of parent-time.

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


[1] RH has a twin, who has lived with the maternal great-grandmother since April 2021 and is not involved in this case.

 

[2] Mother disputes the findings of fact only with regard to venue. But as our disposition makes clear, these factual disputes are immaterial.

[3] Although the court found that Father had “an extensive and violent criminal history, including convictions for interfering with arrests, assaults, disorderly conduct, and threats of violence,” it did not make a specific finding regarding Mother’s knowledge of his violent criminal history outside of the event in prison.

[4] When asked about how Mother was performing at work, her supervisor testified, “She is incredibly reliable. She’s one of my go-to staff . . . .”

[5] Adjudication “means a finding by the court . . . that the facts alleged in the petition have been proved.” Utah Code § 80-1­102(3)(a).

[6] Utah Code section 80-1-102(58)(a) defines “neglect” as follows:

[An] action or inaction causing: (i) abandonment of a child . . . ; (ii) lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian; (iii) 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; (iv) a child to be at risk of being neglected or abused because another child in the same home is neglected or abused; (v) abandonment of a child through an unregulated child custody transfer under Section 78B-24-203; or (vi) educational neglect.

[7] After a dispositional hearing, the juvenile court may award permanent custody and guardianship to a relative if it finds by clear and convincing evidence either abuse or neglect by the natural parent. See Utah Code §§ 80-3-402(1), -405. Mother made additional arguments that the court erred in determining that GH was abused by Father and that Mother had standing to appeal any determinations regarding Father that contributed to a finding that Mother neglected the Children. Because we affirm the juvenile court’s determination that Mother neglected the Children, we do not need to address these arguments.

[8] Mother alleges that when she has asked Grandparents for parent-time, they have refused and told her, “You have no rights.” Mother’s allegations are not part of our appellate record, however.

[9] It is possible for a juvenile court, in an appropriate case, to determine that a parent retaining residual rights is not entitled to any parent-time. But any such determination should be rare and should be supported with findings that demonstrate why it is not reasonable, for example, for the parent to have at least short periods of unsupervised or supervised parent-time.

[10] Utah law provides that “a proceeding for a minor’s case in the juvenile court shall be commenced in the court of the district in which . . . the minor is living or found.” Utah Code § 78A-6­350(1)(b).

[11] Some courts that have decided this issue have held that harm must be shown. See Lamb v. Javed, 692 S.E.2d 861, 864 (Ga. Ct. App. 2010); Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). But we do not decide this issue and leave it for another day.

[12] Mother asserts that venue rights are so substantial that a denial of a motion to change venue can be grounds for an interlocutory appeal, citing Davis County v. Purdue Pharma, LP, 2020 UT 17, 463 P.3d 619. While this is true, Mother sought no interlocutory appeal here. And other courts have held that failure to immediately appeal a denial of a motion to change venue constitutes a waiver of the venue claim. See, e.g.Patterson v. Alexander & Hamilton, Inc., 844 So. 2d 412, 415 (La. Ct. App. 2003).

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In re A.S.G.-R. – 2023 UT App 126 – permanent custody and guardianship

In re A.S.G.-R. – 2023 UT App 126

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.S.G.-R.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

G.R.,

Appellant,

v.

STATE OF UTAH AND E.G.,

Appellees.

Opinion No. 20220645-CA

Filed October 19, 2023

Fourth District Juvenile Court, Provo Department

The Honorable D. Scott Davis

No. 1196726

Alexandra Mareschal and Julie J. Nelson,

Attorneys for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M.

Peterson, Attorneys for Appellee State of Utah

Neil D. Skousen, Attorney for Appellee E.G.

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY

concurred.

HARRIS, Judge:

¶1        G.R. (Mother) became convinced that E.G. (Father) was sexually abusing their daughter, A.S.G.-R. (Child). Over a nearly two-year period, Mother made or sparked some thirty reports of sexual abuse to Utah’s Division of Child and Family Services (DCFS). After investigation, however, DCFS was unable to discover any credible evidence supporting Mother’s allegations, and therefore did not substantiate any of them. And given the number and repeated nature of the reports, DCFS became concerned that Child was being harmed by the allegations and ensuing investigations, some of which had included invasive physical examinations of Child.

¶2        Eventually, the State filed a petition for protective supervision and obtained an order removing Child from Mother’s custody and placing her with Father. After affording Mother fifteen months of reunification services, including a psychological evaluation and therapy, the juvenile court determined that the services had not resulted in sufficient change to the situation and that Child would be placed at substantial risk if she were returned to Mother, and therefore terminated reunification services. And after a four-day permanency hearing, the court entered a permanent custody and guardianship order in favor of Father.

¶3        Mother now appeals, arguing that the court erred in its decisions to not extend reunification services and to award permanent custody and guardianship to Father. We discern no reversible error in those decisions, and therefore affirm.

BACKGROUND[1]

¶4        Child was born in January 2017. Mother and Father separated shortly before Child’s birth, and about two years later they finalized their divorce. In the decree of divorce, Mother and Father were awarded joint legal custody of Child, but Mother was awarded primary physical custody with Father having statutory parent-time.

¶5        Child welfare officials first became involved with this family in November 2018, when DCFS made a supported finding of domestic violence with Father as the perpetrator and Child as the victim. At some point during this same time frame, Mother obtained a protective order against Father, based on allegations that he committed domestic violence against her also.

¶6        Beginning in May 2019, Mother began to make accusations that Father was sexually abusing Child. Over the course of the next two years, Mother made at least eight direct reports to DCFS of alleged sexual abuse. In addition, Mother reported her allegations to various medical and mental health professionals, some of whom also made reports to DCFS based on Mother’s representations. In total, between May 2019 and February 2021, some thirty separate reports were made to DCFS that Father was sexually abusing Child. DCFS investigated these reports and could not substantiate any of them. In connection with some of these reports, Mother took Child to the hospital. During two of these visits, Child—approximately three years old at the time— was subjected to invasive physical examinations, including one “code-R” rape examination.[2] The examinations yielded no evidence of abuse, and in January 2020 DCFS representatives spoke with Mother about the potential harm that could result to Child from repeated unfounded allegations and needless forensic medical examinations. In addition, in April 2020 the “medical director of Utah’s [Center for] Safe and Healthy Families” program advised Mother that subjecting Child to “any further sexual assault examinations could result in an allegation of abuse for [Mother] due to the harm that unnecessary examinations can cause a child.”

¶7        During this time frame, and in an effort to expand Mother’s understanding of the relevant issues, DCFS opened a “voluntary services case” to provide Mother the opportunity to take advantage of certain services, and Mother agreed to work with DCFS to try to improve the situation.

¶8        During the pendency of the voluntary services case, however, Mother hired a private investigator to investigate the possibility of sexual abuse by Father, and she did not tell DCFS that she had done so. This investigator interviewed Child, using techniques the juvenile court later found to “violate[] nearly every guideline for child forensic interviewing,” including “ask[ing] leading questions, [making] promises to [Child] that could not be kept, and offer[ing Child] ice cream if she would tell the interviewer what ‘daddy’s secret’ is.”

¶9        Despite DCFS’s efforts to assist Mother, the voluntary services case did not have its desired effect. Mother proved unable or unwilling to follow the plan DCFS outlined, and she stopped communicating with the DCFS caseworker.[3] Eventually, DCFS closed the voluntary services case.

¶10 Sometime after that case was closed, Mother—in a continuing effort to present evidence that Father was sexually abusing Child—took a video recording of Child in an incident the juvenile court described as follows: Mother “videotaped [Child], naked on a bed, having her point to where [Father] touches her. On the video, [Mother] touches [Child’s] genitals and has her spread her legs and moves the camera angle close-up to [Child’s] genitals.” Mother provided a copy of this recording to DCFS, but caseworkers declined to view it “based on concerns that it may potentially contain child pornography.” Mother then provided the video recording to law enforcement.

¶11      In January 2021, Mother again brought Child to a hospital, alleging that Child “disclosed that [Father] had put his mouth on [Child’s] vagina just hours prior.” Another invasive physical examination was performed on Child, yet “no male DNA was found on [Child’s] genitals.” DCFS was informed about this incident, presumably from hospital personnel, and investigated it; the investigation included interviewing Child at the Children’s Justice Center. After completing its investigation, DCFS found “no corroborating evidence” and concluded that Child’s “disclosure was coached” and “not credible.”

¶12      The present case was initiated in March 2021 when Mother sought a protective order barring Father from having contact with Child, and the State responded by not only intervening in the protective order case but also by filing this action: a petition for protective supervision services in which the State asked the court to “discontinue” the protective order, conclude that Child was “abused, dependent, and/or neglected,” award DCFS protective supervision of Child, and allow DCFS to place Child in Father’s custody during the pendency of the case.

¶13      At a shelter hearing held about a week later, the juvenile court ordered Child removed from Mother’s custody and placed in the temporary custody of DCFS, which then placed Child, on a preliminary basis, with Father. Child has remained in Father’s care ever since.

¶14      Later, at a subsequent hearing, the court found, based on stipulation, that Child was dependent as to Father. With regard to Father, the court indicated that the primary permanency goal was “Reunification/REMAIN HOME,” and that the concurrent goal was “Remain Home with non-custodial parent.”

¶15      The court held an adjudication hearing as to Mother; at that hearing, Father and the guardian ad litem (the GAL) asserted that Mother’s conduct—making repeated false claims of sexual abuse, thereby subjecting Child to interviews, investigations, and physical examinations—constituted abuse, but the State argued only for a finding of neglect. After the hearing, the court found “no specific evidence” of harm to Child that could support a finding of abuse, but instead determined that Child “is neglected” as to Mother because Child “lacks proper care by reason of the fault or habits of [Mother].” For Mother, the court set a primary permanency goal of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary goal was “reunification, with the concurrent goal of guardianship with [a] relative.”

¶16 In connection with setting these permanency goals, the court adopted a Child and Family Plan (the Plan). Under the terms of the Plan, Mother was required to, among other things, “complete a psychological evaluation and follow through with all recommendations”; “participate in individual therapy”; participate in a “parenting class”; and “maintain stable and appropriate housing” for herself and Child. The Plan also required Mother to be “open and honest” in connection with the psychological evaluation, as well as with therapists and other mental health professionals. The Plan provided that its objectives would “be achieved when [Child] is living at [Mother’s] home” and when Mother “is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with” Father. No party lodged any objection to the terms of the Plan or to the permanency goals the court set.[4]

¶17 Thereafter, Mother completed a parenting class as well as—after some delay that may or may not have been attributable to her—the required psychological evaluation. The psychologist who conducted the evaluation (Evaluator) diagnosed Mother with “unspecified personality disorder” characterized by “symptoms indicative of borderline, histrionic, and narcissistic personality disorders as well as paranoid-like features.” In particular, Evaluator noted that Mother has “a belief that she can only be understood by a few people,” a “sense of entitlement,” a “lack of empathy,” and a “pervasive distrust and suspiciousness of others” that leads her to sometimes “suspect[], without sufficient basis, that others are harming and deceiving her.” Evaluator offered his view that, “unless [Mother] overcomes her psychopathological features,” she “cannot act in [Child’s] best interest.” He noted that the “obvious recommendation” for Mother would be for her to “pursue an effective treatment program,” but he was doubtful that such a program would succeed in Mother’s case, because Mother “is convinced that she is not the problem” and because, “given her personality disorder features, . . . it would be hard for [Mother] to develop an effective psychotherapeutic alliance with her psychotherapist.”

¶18 Thereafter, DCFS sent Mother a list of recommended therapists, and Mother attended therapy sessions with at least three different mental health professionals. DCFS expressed concern that Mother “was seeking out multiple providers,” some of whom reported that Mother was attempting to “get a second opinion on the psychological evaluation,” and DCFS was worried that Mother was “continu[ing] to report” to these therapists “that [Child] was being sexually abused.” Because of this, DCFS harbored a “concern that there is no clear progress in therapy, due to minimal communication from providers, multiple providers involved and regular changes in therapy.” Mother maintains, however, that she “engaged in all recommended therapy,” an assertion no party apparently contests, although the record is far from clear about what the specific recommendations were and exactly how Mother complied with them.

¶19 After the psychological evaluation was completed, the parties appeared for a review hearing before the court. At that hearing, the results of the evaluation were discussed, and the court commented that, “if the case were closed today and things returned to how they were before the case, [Child] would be at risk of harm by” Mother. The court ordered that Child remain in DCFS custody and placed with Father, with whom the court stated it had “no safety concerns.”

¶20 As the twelve-month permanency hearing approached, Mother moved for an extension of reunification services for “at least 90 days.” Mother argued that she had complied with the Plan, in that she had completed the parenting class and the psychological evaluation and had engaged in therapy. In this motion, Mother also argued that the juvenile court could not enter an order of permanent custody and guardianship with Father, because the district court had already entered a custody order, in connection with the parties’ divorce case, and in Mother’s view the district court should be the court to enter and modify custody orders between the parents. Father opposed Mother’s motion for extended services, but the State did not register opposition. The court scheduled an evidentiary hearing to consider the matter. But due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in Mother’s motion for an extension of services being de facto granted: services were then extended for another ninety days, and the postponed evidentiary hearing was turned into a permanency hearing.

¶21      After these delays, the permanency hearing was held, over four nonconsecutive trial days, in April and June 2022. Child’s DCFS caseworker testified that she believed that Mother had been “coaching [Child] into telling people certain things.” And Child’s psychologist testified that she “did not observe significant behaviors or concerns, [or] emotions concerning expressions that would signal to [her] that [Child] has experienced sexual abuse.”

¶22      Evaluator testified at length during the trial, and discussed the specifics of his evaluation of Mother. He discussed his diagnosis that Mother had an “unspecified personality disorder.” He testified that the evaluation took longer than anticipated because Mother “did not involve herself in the evaluation in a forthright manner,” “withheld relevant information that was requested of her,” and “intentionally distorted information.” In his view, Mother did not think that she was the problem or that she had done anything wrong. Evaluator reiterated his view that unless Mother “overcomes her psychopathological features, [she] cannot act in [Child’s] best interest.”

¶23 During her own testimony, Mother continued to cling to her viewpoint that Father had been sexually abusing Child. She testified that “she does not agree with a doctor’s opinion that there was no evidence of sexual abuse.” When asked whether she “still believe[d]” that Father had sexually abused Child, she answered that she did not know, but that some “part of [her]” still believed that abuse took place, and that she still had “a suspicion” in that regard. She did not recognize any impropriety in her multiple reports of sexual abuse to DCFS and other authorities, testifying that she did not “think [she] was doing anything incorrectly” regarding the parenting of Child. And she did not agree that her behavior constituted neglect of Child.

¶24      In this same vein, Mother also called her ongoing therapist to testify at the trial. The therapist testified that he had spent some thirty hours of therapy with Mother and that she had been cooperative. The therapist opined, to the extent he was able to as a fact witness, that Evaluator’s diagnosis of an “unspecified personality disorder” was incorrect, that Mother had not neglected Child by reporting sexual abuse to the authorities, and that Father had indeed sexually abused Child.

¶25      At the conclusion of the trial, the juvenile court took the matter under advisement. A few weeks later, the court issued a written decision containing several different rulings. First, the court declined Mother’s invitation to further extend reunification services, and it terminated those services. Important to the court’s decision in this regard were its findings that—although Mother had taken certain steps, including completing parenting classes, engaging in therapy, and completing the psychological evaluation—Mother had not fully complied with the terms of the Plan, because even after all of these services, Mother “accepted virtually no responsibility for [Child] being in DCFS custody for more than one year,” “demonstrated virtually no insight regarding the harm she has caused” to Child, and offered “varied and conflicted” testimony “regarding whether she still believed” that Father had sexually abused Child, “despite there being no credible evidence that he has.” The court also determined that reunification between Mother and Child was not “probable or likely within the next 90 days” and that the extension of services was not in Child’s best interest.

¶26 Second, the court awarded “permanent custody and guardianship” of Child to Father. Important to the court’s decision in this regard were its findings that “return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being,” that there is “no credible evidence” that Father has ever sexually abused Child, and that Child “seems to be thriving and well-adjusted [and] well cared for” in Father’s care.

¶27 Finally, after denying Mother’s request for additional reunification services and granting permanent custody and guardianship in favor of Father, the court terminated its jurisdiction in the case.

ISSUES AND STANDARDS OF REVIEW

¶28 Mother now appeals, and she raises two issues for our consideration. First, she challenges the juvenile court’s decision to terminate reunification services. The juvenile court is “in the best position to evaluate the credibility of witnesses, the parent’s level of participation in reunification services, and whether services were appropriately tailored to remedy the problems that led to the child’s removal.” In re D.R., 2022 UT App 124, ¶ 9, 521 P.3d 545 (quotation simplified), cert. denied, 525 P.3d 1264 (Utah 2023). Accordingly, “absent a demonstration that the determination was clearly in error, we will not disturb the determination” to terminate reunification services. See id. (quotation simplified).

¶29      Second, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father, her fellow parent. As part of this challenge, she takes issue with the court setting slightly different permanency goals for each parent, and with the court accomplishing two separate objectives—namely, choosing among those goals and awarding permanent custody to Father—all in connection with the same hearing. In the main, Mother’s challenges in this regard involve questions of statutory interpretation, which “are questions of law that we review for correctness.” In re S.Y.T., 2011 UT App 407, ¶ 9, 267 P.3d 930 (quotation simplified). But to the extent that Mother here challenges the court’s underlying factual findings, we adopt a more deferential standard of review. See In re L.M., 2013 UT App 191, ¶ 6, 308 P.3d 553 (“We review the juvenile court’s factual findings for clear error . . . .” (quotation simplified)), cert. denied, 320 P.3d 676 (Utah 2014).[5]

ANALYSIS

I

¶30      Mother first challenges the juvenile court’s decision to terminate reunification services. For the reasons discussed, we discern no clear error in the court’s decision.

¶31 When a juvenile court removes a child from a parent’s custody, it may afford the parent the opportunity to take advantage of certain services—e.g., mental health counseling or parenting classes—designed to address the problems that led to removal and aimed at facilitating reunification between parent and child. See Utah Code § 80-3-406. However, due to the need for swift permanence in child welfare cases, the duration of reunification services may not ordinarily “exceed 12 months” from the date of removal. See id. § 80-3-406(13)(a); see also id. § 80­3-409(6). A juvenile court may, however, extend reunification services by an additional “90 days”—for a total of fifteen months—if the court finds, by a preponderance of the evidence, “that (i) there has been substantial compliance with the child and family plan; (ii) reunification is probable within that 90-day period; and (iii) the extension is in the best interest of the minor.” Id. § 80-3­409(7)(a). And in exceptional cases, the court may extend services for a second ninety-day period—for a total of eighteen months— but only if the court can make those same three findings by clear and convincing evidenceId. § 80-3-409(7)(c).

¶32      In this case, Child was removed from Mother’s custody at a shelter hearing in March 2021. Thus, reunification services were to presumptively end in March 2022, unless the court made findings sufficient to support an extension. In early April 2022, the court commenced an evidentiary hearing for the purpose of determining whether reunification services should be terminated or extended but, due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in a de facto extension of reunification services for another three months, into June 2022. Finally, at the conclusion of the four-day hearing that same month, the court ordered that reunification services be terminated. In its order, the court—presumably out of an abundance of caution given the timing of the hearing—stated that it was “not able to find by a preponderance of the evidence, and certainly not by clear and convincing evidence, that [Mother] is in substantial compliance with [the Plan], that reunification . . . is probable or likely within the next 90 days, or that extension of services for [Mother] is in [Child’s] best interest.”

¶33 Mother challenges this decision, asserting that it goes against the clear weight of the evidence because, she asserts, she at least substantially complied with the Plan. We acknowledge that Mother did take certain actions that the Plan required, such as completing the psychological evaluation and participating in parenting classes and individual therapy, and we therefore agree with Mother’s assertion that she complied with many—if not necessarily all[6]—of the Plan’s individual requirements.

¶34      But even taking Mother’s assertion—that she completed all of the Plan’s individual subsidiary tasks—at face value, that does not necessarily compel the conclusion that Mother substantially complied with the Plan, because in this case Mother’s efforts did not bear fruit. That is, at the end of fifteen months of reunification services, Mother had not rectified the problem that led to the removal of Child from her custody. The Plan explicitly stated that its goals would be “achieved when [Child] is living at [Mother’s] home [and] where Mother is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with [Father].” Child was removed from Mother’s custody because Child lacked “proper care by reason of the fault or habits of [Mother]” due to Mother’s continued unsupported reports to authorities that Father was sexually abusing Child. After fifteen months of services, the court—based at least in part on Mother’s own testimony at the evidentiary hearing— determined that the original problem still existed, and that Child could not therefore safely be returned to Mother’s custody. It is far from clear error for a juvenile court to determine that a parent who has completed many of a child and family plan’s individual requirements, but who has still not meaningfully addressed the underlying problem the plan was designed to solve, has not substantially complied with the plan.

¶35      Moreover, even if we were to assume, for the purposes of the discussion, that Mother’s actions constituted substantial compliance with the Plan, Mother must also grapple with the juvenile court’s findings that reunification was not probable within the next ninety days, and that another extension of reunification services was not in Child’s best interest. See Utah Code § 80-3-409(7)(a)(ii), (iii); see also In re H.C., 2022 UT App 146, ¶ 54, 523 P.3d 736 (“Although [the mother] subsequently complied with the child and family plan, the court nonetheless determined that [the child] could not safely be returned to her care because it found that the return posed a substantial risk of detriment to [the child’s] physical or emotional well-being.”), cert. denied, 527 P.3d 1106 (Utah 2023). While Mother spends many pages in her brief contesting the court’s “substantial compliance” finding, she does not directly engage with the court’s findings that, given her lack of progress on solving the underlying problem, she had not shown—by either evidentiary standard— that reunification was probable in the next ninety days or that reunification was in Child’s best interest. And based on our review of the record, we discern no clear error in these findings.

¶36      Accordingly, we discern no error, let alone reversible error, in the juvenile court’s decision to terminate reunification services.

II

¶37 Next, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father. Her challenge in this regard is multi-faceted. First, she challenges the substance of the court’s decision, and asserts that the court—by considering its options limited to those set forth in section 80-3­409(4)(b) of the Utah Code—erred in its interpretation of the governing statute. And in connection with this argument, Mother asks us to overrule one of our recent opinions. Second, Mother challenges the procedure the court used in reaching its decision. For the reasons discussed, we reject Mother’s arguments.

A

¶38      Under our law, in any case in which reunification services are ordered, “the juvenile court shall, at the permanency hearing, determine . . . whether the minor may safely be returned to the custody of the minor’s parent.” See Utah Code § 80-3-409(2)(a). And “[i]f the juvenile court finds, by a preponderance of the evidence, that return of the minor to the minor’s parent would create a substantial risk of detriment to the minor’s physical or emotional well-being, the minor may not be returned to the custody of the minor’s parent.” Id. § 80-3-409(2)(b).

¶39      In this case, as already discussed, the juvenile court ordered reunification services for Mother, and therefore needed to confront, at the permanency hearing, the question of whether Child faced “substantial risk of detriment to her physical and emotional well-being if returned to [Mother’s] care.” In its findings and conclusions entered following that hearing, the court specifically found, by “both a preponderance of the evidence” and by “clear and convincing evidence, that return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being.” Mother does not directly challenge that finding on appeal.[7]

¶40      In situations where a juvenile court makes a finding of risk and therefore determines that a child cannot be returned to the parent’s custody, our law then requires the court to do certain things: “(a) order termination of reunification services to the parent; (b) make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor . . . ; and (c) . . . establish a concurrent permanency plan that identifies the second most appropriate final plan for the minor, if appropriate.” Id. § 80-3-409(4). As discussed above, the court terminated reunification services, and did not err by so doing.

¶41      The court then considered the three options presented by the second part of the governing statute: termination of parental rights, adoption, or permanent custody and guardianship.[8] See id. § 80-3-409(4)(b). The court determined that permanent custody and guardianship with Father was the most appropriate of those three options.

¶42      Mother challenges the substance of this determination, and she makes two specific arguments. First, she asserts that the statutory subsection the court believed governed the situation— section 80-3-409(4) of the Utah Code—doesn’t actually govern, because in Mother’s view Child was “returned to” a parent (Father) after the permanency hearing. Second, and relatedly, Mother acknowledges that one of our recent decisions—In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023)—interpreted the governing statute in a manner unfavorable to her, and she asks us to overrule that recent case. We find neither of Mother’s arguments persuasive.

1

¶43 Mother’s first argument challenges the juvenile court’s interpretation of statutory text. In particular, she notes that a threshold requirement of the governing statute is that the minor not be “returned to the minor’s parent or guardian at the permanency hearing.” See Utah Code § 80-3-409(4). Only if a child is not “returned to the minor’s parent” at the permanency hearing does a court need to choose from one of the three options set forth in subsection (4)(b): termination, adoption, or permanent custody and guardianship. See id. If a child is “returned to the minor’s parent,” then a court presumably could select some other option not listed in subsection (4)(b). As Mother sees it, the statutory reference to “the minor’s parent” includes not only the parent from whom the child was removed and with regard to whom the “substantial risk” determination is being made, but also the child’s other parent. And she asserts that, because Child was placed in the custody of Father—Child’s other parent—after the permanency hearing, the court erred by considering itself limited to the three options set out in subsection (4)(b).

¶44      Our “overarching goal” in interpreting a statute is “to implement the intent of the legislature.” See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92. In attempting to ascertain that intent, we start with “the language and structure of the statute.” Id. “Often, statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.” Id. (quotation simplified). “The reverse is equally true: words or phrases may appear unambiguous when read in isolation, but become ambiguous when read in context.” Id. For this reason, “we read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters, avoiding any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word in the statute.” Id. (quotation simplified).

¶45 In our view, the phrase “the minor’s parent,” as used in section 80-3-409(4), refers only to the parent from whom the child was removed, who was offered reunification services, and to whom return of the child “would create a substantial risk of detriment” to the child. It does not refer to another parent with whom the child is currently placed, who has not been ordered to complete any reunification services, and with regard to whom the court has not made any “substantial risk” determination. Indeed, the thrust of this entire statutory section has to do with whether a child will be reunited with a parent from whom the child has been removed and who has received reunification services. See Utah Code § 80-3-409. As already noted, subsection (2) requires a court to make a threshold determination about whether the “minor may safely be returned to the custody of the minor’s parent,” something that may not occur if “return of the minor to the minor’s parent would create a substantial risk of detriment” to the minor. Id. § 80-3-409(2)(a), (b). The verb “returned” is meaningful here: one does not “return” to a situation in which one has never been in the first place. See Return,    Merriam-Webster, https://www.merriam-webster.com/dictionary/return            [https://perma.cc/Y4YF-3ENP]
(defining “return” as “to go back or come back again”). In the subsection (2) context, the phrase “the minor’s parent” clearly refers to the parent from whom the minor was removed, who received reunification services, and with regard to whom the “substantial risk” determination is being made; indeed, the statute instructs juvenile courts that are making the subsection (2) threshold determination to consider, among other things, whether the parent in question has demonstrated “progress” and whether the parent has “cooperated and used the services provided.” See Utah Code § 80-3-409(3)(a)(iv), (v). In our view, it would be nonsensical to apply this phrase to the minor’s other parent in a situation where the child was already in the custody of that parent at the time of the permanency hearing, where that parent did not receive reunification services, and where the court made no “substantial risk” determination concerning that parent at that hearing. Indeed, at oral argument before this court, Mother conceded that the phrase “the minor’s parent,” as used in subsection (2), must refer solely to the parent who received reunification services and with regard to whom the “substantial risk” determination is being made.

¶46 That same phrase—“the minor’s parent”—used two subsections later means the same thing. As noted, we read statutes as a whole, including all of their subsections, and “interpret [their] provisions in harmony with other statutes in the same chapter and related chapters.” See Rushton, 2017 UT 21, ¶ 11 (quotation simplified). Under “the canon of consistent meaning,” there is a “presumption that the established meaning of a word in a given body of law carries over to other uses of the same term used elsewhere within that same law.” In re Childers-Gray, 2021 UT 13, ¶ 142, 487 P.3d 96 (Lee, J., dissenting). And the “canon of consistent meaning is at its strongest when it is applied to a term used in neighboring subparts of the same statutory provision.” Irving Place Assocs. v. 628 Park Ave, LLC, 2015 UT 91, ¶ 21, 362 P.3d 1241; see also Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 31, 353 P.3d 140 (determining that a term “cannot properly mean one thing as applied to two of the objects in a series . . . but something else as applied to the other object in the same series”). Thus, when assessing the meaning of the phrase “the minor’s parent” in subsection (4), it is highly relevant how that phrase is used in subsection (2). And we conclude that, interpreted in its proper context, the phrase—as used in subsection (4) as well as subsection (2)—refers only to the parent from whom the child was removed, who received reunification services, and with regard to whom the court is making the “substantial risk” determination, and not to another parent who does not fit those criteria.

¶47      Accordingly, we reject Mother’s argument that subsection 409(4) has no application to her situation. By the plain terms of that statutory section, the juvenile court—as soon as it determined that Child could not safely be returned to Mother—was obligated to apply that statutory subsection according to its text.

2

¶48      Under the text of that statutory subsection, a court that has made a “substantial risk” determination must terminate reunification services. See Utah Code § 80-3-409(4)(a). At that point, the statute requires the court to “make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor.” Id. § 80-3-409(4)(b). The language of this statutory subsection therefore speaks of only three options, and requires the court in this situation to choose one of them. And we have recently interpreted this language according to its text, even as applied to disputes between parents. See In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023).

¶49      Yet here, Mother nevertheless asserts that, at least in cases involving disputes between two parents, juvenile courts ought to be allowed to choose a different option: entry of a simple custody order that is controlled by the usual standards governing entry and modification of custody orders in divorce court. Mother asserts that awarding a parent the status of “guardian” makes no sense, given that a parent already has all the rights that a guardian has. And she asserts that entering orders of permanent guardianship as between parents has the effect—one she posits was unintended—of preventing one parent from being able to seek modification of the custody order.

¶50      To her credit, Mother recognizes that our recent holding in In re H.C. forecloses her argument for a fourth option. In that case, the parents of a child were divorced, with a parenting plan that gave primary custody to the mother. Id. ¶ 2. But later, the juvenile court determined that the child had been neglected by the mother, and the child was placed in the care of the father. Id. ¶¶ 4, 8. After the permanency hearing, the juvenile court determined that the child would be at substantial risk if returned to the mother’s custody, and the court placed the child with the father under an order of permanent custody and guardianship. Id. ¶¶ 28, 38. On appeal, we affirmed the juvenile court’s decision, and we interpreted subsection 409(4)(b) as limiting the juvenile court to the three options set forth therein. Id. ¶ 58. We held that subsection 409(4)(b) “leaves a juvenile court judge with no discretion” to do anything else, and we specifically stated that the statute “does not vest the juvenile court with the authority to defer to the district court” with regard to custody of the adjudicated child. Id. (quotation simplified).

¶51      In an effort to get around this roadblock, Mother asks us to overrule In re H.C. We do possess the authority to overrule our own precedent in appropriate cases. See State v. Legg, 2018 UT 12, ¶ 11, 417 P.3d 592 (stating that one panel of this court “retains the right to overrule another panel’s decision if the appropriate standard is met”). “But we do not do so lightly,” given our respect for the principle of stare decisis, which ordinarily requires us to defer to “the first decision by a court on a particular question.” See State v. Garcia-Lorenzo, 2022 UT App 101, ¶¶ 42, 44, 517 P.3d 424 (quotation simplified), cert. granted, 525 P.3d 1263 (Utah 2022).

¶52      “Before we may overrule one of our precedents, we must engage in the two-part exercise required by our supreme court in such situations.” Id. ¶ 45. “First, we must assess the correctness of the precedent, and specifically examine the persuasiveness of the authority and reasoning on which the precedent was originally based.” Id. (quotation simplified). “Second, we must assess the practical effect of the precedent, including considerations such as the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people’s reliance on the precedent would create injustice or hardship if it were overturned.” Id. (quotation simplified). Both parts of the test must be satisfied before we may overrule a precedent. See id. In this case, we need not discuss the second part because, in our view, the first one is not satisfied.

¶53 With regard to the first part—the correctness of the precedent—Mother asserts that our decision in In re H.C. “upends the district court’s jurisdiction over custody matters and imposes an unnecessarily restrictive scheme on custody between two parents.” She points out that, when a child is placed with the other parent after a permanency hearing, “the child isn’t in ‘legal limbo’” and “all that is left to determine is what [the] custody [arrangement] between the parents will look like.” And she maintains that, if subsection 409(4)(b) is interpreted to require courts to order permanent custody and guardianship in favor of one of the parents, that result would serve to “override[] district court custody orders” and would create a “super sole custody” arrangement in which “the non-guardian parent can never modify the terms of the guardianship.” She asserts that this is an “absurd result” that “cannot be what the legislature intended.”

¶54 But in our view, the panel’s reasoning in In re H.C. was sound. There, the court analyzed the text of subsection 409(4)(b) and concluded that the language used by the legislature limited juvenile courts in this situation to the three options set forth in the text of the statute. See In re H.C., 2022 UT App 146, ¶¶ 58–59. Our analysis of that same text leads us to the same conclusion.

¶55      Moreover, Mother overlooks the fact that the panel in In re H.C. considered many of the same arguments that Mother is advancing here. In that case, the appellant asserted that “juvenile courts should not be deciding custody between two fit parents.” Id. ¶ 52 (quotation simplified). And the appellant complained that an order of permanent custody and guardianship in favor of the other parent may prevent her “from petitioning for custodial change in the future.” Id. ¶ 53. We rejected these arguments, in part, by noting that, given the court’s adjudication rulings, “this was not merely a custody proceeding ‘between two fit parents.’” Id. ¶ 54. And we acknowledged the remainder of these arguments in a footnote, editorializing that “it seems odd that, in a situation such as this with two parents vying for custody of a minor child, the statute authorizes the award of permanent guardianship to one parent over the other, where both enjoy parental rights in the minor child.” Id. ¶ 59 n.13. But we found these arguments nevertheless unpersuasive in light of the text of the “statutory regimen that we [were] called upon to interpret and apply.” Id.

¶56      We share the sentiment of the panel in In re H.C. that the text of the governing statute compels the interpretation described there. The text selected and enacted by our legislature limits juvenile courts to just three options in this situation. See id. ¶¶ 58– 59 & n.13 (stating that “permanent custody and guardianship is one of only three options available by the terms of the controlling statute when parental neglect has triggered the juvenile court’s jurisdiction and the case progresses to a permanency hearing at which parental neglect is found and reunification services are terminated”). If our legislature intended a different result, it can always amend the statute to provide for additional options—for instance, entry of a simple custody order awarding primary physical custody to the other parent, and allowing the district court to manage things from there—that a juvenile court might be able to apply in cases involving disputes between two parents. But for now, the text of the governing statute speaks of only three options, applicable in all cases, and we must apply the statute as written, Mother’s policy arguments notwithstanding.[9]

¶57 For all of these reasons, we decline Mother’s invitation to overrule In re H.C. That case—and the statutory text interpreted therein—compels the conclusion that the juvenile court, in this case, had only three options after concluding that it could not return Child to Mother’s custody: it had to either (a) terminate Mother’s parental rights, (b) work toward adoption, or (c) enter an order of permanent custody and guardianship with someone other than the parent at issue. See Utah Code § 80-3-409(4)(b); see also In re H.C., 2022 UT App 146, ¶¶ 58–59. The juvenile court, by selecting permanent custody and guardianship in favor of Father, chose one of the available options.[10] In so doing, the court properly followed the governing statute, and did not misinterpret it. We therefore reject Mother’s second substantive argument.

B

¶58      Finally, Mother makes two challenges to the procedure the juvenile court employed in arriving at its conclusion to award permanent custody and guardianship to Father. We reject both challenges.

¶59 First, Mother claims that the court acted inappropriately when it took the following two actions in the same ruling and after the same hearing: (a) it changed Child’s final permanency goal to permanent custody and guardianship and (b) it entered an order effectuating the permanent custody and guardianship. As Mother sees it, the court was required “to first change the permanency goals . . . and then hold a review hearing (possibly another evidentiary hearing) to determine whether the final permanency goal is established.” Mother notes that “nothing in section 409 permits a juvenile court to” accomplish both things in the same ruling and after the same hearing. But Mother cites no statute or appellate opinion forbidding the court from doing so and, in this situation, we see no reason why the court could not have proceeded as it did.

¶60 Had the court chosen “adoption” as the primary permanency goal following the permanency hearing, then perhaps Mother would have a point: as a practical matter, setting adoption as the goal entails a fair bit of extra work. To facilitate an adoption, the parent’s rights would need to be terminated, and to make that happen, the State (or another petitioner) would need to file a petition for termination of parental rights, which would need to be litigated. And the juvenile court would also need to concern itself, in the event the parent’s rights were terminated, with finding an appropriate adoptive placement for the child.

¶61 But where the court selects permanent custody and guardianship as the primary permanency goal, and the child is already placed with the person to whom custody and guardianship is to be given, there are not necessarily any additional steps that the court needs to take before making that goal a reality. Certainly, in this case Mother doesn’t identify any additional work that needed to be done in the interim. And as noted, Mother points to no statute or governing case forbidding the juvenile court, in cases like this one, from proceeding efficiently and entering the order of guardianship in the same order as it selects the primary permanency goal. Mother has therefore not carried her burden of demonstrating error.

¶62 Second, Mother takes issue with the juvenile court’s decision, earlier in the case, to set different permanency goals for each parent. As noted above, after adjudicating Child dependent as to Father, the court initially set the primary permanency goal, as to Father, as “Reunification/REMAIN HOME,” and the concurrent permanency goal as “Remain Home with non­custodial parent.” Later, after adjudicating Child neglected as to Mother, the court set a primary permanency goal, as to Mother, of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary permanency goal was “reunification, with the concurrent goal of guardianship with [a] relative.” Mother challenges this procedure as improper, asserting that this choice made “it additionally difficult for any parent to determine what the effect of abandoning one of the primary plans would be.” But Mother cites no statute or governing case forbidding the court from engaging in this procedure, and she overlooks the fact that she did not object to these goals when they were set. In addition, Mother does not articulate how the court’s decision to set slightly different permanency goals vis-à-vis each parent resulted in any harm to her at the end of the case. Accordingly, Mother has not carried her burden of demonstrating reversible error.[11]

CONCLUSION

¶63 We discern no clear error in the juvenile court’s decision to terminate reunification services. And we reject Mother’s challenges—both substantive and procedural—to the court’s award of permanent custody and guardianship to Father.

¶64 Affirmed.

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

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In re D.S. – 2023 UT App 98 – reversal of termination of parental rights

In re D.S. – 2023 UT App 98

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF D.S. AND K.S.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

S.S.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220956-CA

Filed August 31, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Annette Jan

No. 1198250

Sheleigh A. Harding, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and

John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 After a trial, the juvenile court terminated S.S.’s (Father) parental rights regarding his two children, D.S. and K.S. (collectively, the Children), concluding that it was in the best interest of the Children for them to be adopted by their paternal grandmother (Grandmother). Father appeals the court’s termination order, asserting that—under the precise circumstances presented here, where the Children are being placed with Father’s own mother and where permanent guardianship remains a viable option—termination of his rights was not strictly necessary to promote the best interest of the Children. We agree with Father, and reverse the juvenile court’s termination order.

BACKGROUND

¶2        Father is the biological father of K.S., a boy born in 2010, and D.S., a girl born in 2016. Father resided with the Children and their mother (Mother) from the time the Children were born until approximately 2018. In 2014, the Division of Child and Family Services (DCFS) received a report that Father had committed “Domestic Violence related child abuse” against K.S. and some of the Children’s other siblings; most notably, the report alleged that Father had “cut [a sibling’s] hand with a knife.” DCFS found the allegations “supported,” but it did not take action to remove K.S. at that time, and no criminal charges were ever filed.

¶3        Around 2017, after D.S. was born, a protective order was entered against Father, for reasons unclear from this record, that restricted his ability to contact Mother. Even after entry of the protective order, though, Father continued to reside with Mother for about another year, in apparent violation of that order. Eventually, in 2018, Father and Mother went through “a messy break up” and separated; the Children remained in Mother’s custody. In the year following the separation, Father spent time with the Children on a regular basis through “weekend visits” that Grandmother initiated and staged at her house.

¶4        During this time period, Father was arrested for “possession of a dangerous weapon”—“a pocketknife in [his] pocket”—in connection with various “protective order violations.” In late 2019, he was sentenced to prison, and ordered to serve a term of zero to five years. When Father first got to prison, he was unable to visit with the Children—even virtually— due to the continued existence of the protective order, but in March 2020, after obtaining a modification to that order, he began visiting with the Children through weekly “video visits” or “phone visits.” In the beginning, it was Grandmother who “was really insistent” that these virtual visits take place between Father and the Children. And since 2020, such visits have occurred on more or less a weekly basis.

¶5        In early 2021, while Father was still incarcerated, the Children were removed from Mother’s custody after an incident in which Mother abandoned them. The Children were later adjudicated neglected as to Mother and dependent as to Father, and the juvenile court placed them with Grandmother. In later proceedings, Mother’s parental rights were terminated, a determination Mother has not appealed. And due to Father’s ongoing incarceration, reunification services were never offered to him; the juvenile court set a permanency goal of adoption.

¶6        In January 2022, the State filed a petition seeking to terminate Father’s parental rights regarding the Children. Prior to trial on that petition, Father stipulated that—largely due to his incarceration—the State could show at least one statutory ground for termination of his parental rights. But the case proceeded to trial on the other element of the termination test: whether termination was strictly necessary to promote the best interest of the Children. On that point, Father took the position that termination of his rights was not strictly necessary, given that—at least in his view—he had a good relationship with the Children, they were in the care of his own mother (Grandmother), and he would undoubtedly be a part of their lives going forward, at least in some sense, simply due to that reality. He asserted that a permanent custody and guardianship arrangement would suit this situation better than adoption would.

¶7        In August 2022, the juvenile court held a relatively brief trial to consider that issue; during that trial, the court heard argument from counsel and testimony from three witnesses: the DCFS caseworker (Caseworker), Grandmother, and Father.[1] Caseworker testified that the Children were doing well in Grandmother’s care. She was aware that the Children have regular virtual visits with Father, but she noted that the Children “don’t talk [with her] much about” those visits and, when they do, they often just say “they don’t remember what they talked [with Father] about.” Caseworker stated that she knows that the Children “love [Father],” and did not recall either of them ever saying that they found Father “scary.” But she offered her view that adoption by Grandmother was in the Children’s best interest, opining that “adoption is necessary to allow them permanency and . . . a long-lasting, stable environment.” She also stated that she had talked to the Children “about adoption” and that the Children “would like to be adopted by [Grandmother],” but did not elaborate or offer any context for this conversation.

¶8                      Grandmother testified that the Children were doing well

in school and thriving in her care. She acknowledged that, as a general matter, “fathers are important” in the lives of children, and she stated that she had been “a big advocate for” Father throughout the entire saga, even pushing to set up virtual visits from the prison after Father was first incarcerated. But she testified that, over time, she had become more of “an advocate for the [Children],” and offered her view that, due to some of the “choice[s]” Father had made, the relationship between Father and the Children had not “functioned properly for a very long time.” She discussed, at some length, the regular virtual visits that the Children have with Father, and she acknowledged that Father is a good listener during the visits. But she stated that the Children have lost interest in the visits over time, and that the visits are “hard for” the Children and make them “uncomfortable” because “they don’t know what to do” during the visits. To cope with the discomfort, Grandmother has added some “structure[]” to the visits “so that [the Children] would have things to talk about”; for instance, K.S. often plays the piano for Father during the visits, while D.S. often “plays kitchen” and pretends to cook things for Father. Grandmother offered her perception that the Children do not wish to have regular virtual visits anymore, and that Father does not understand that the visits are hard for the Children. She noted that sometimes the Children need to “spend some time kind of snuggling” with her after the visits. Grandmother also testified that, on at least one occasion, K.S. said that Father is “scary.”

¶9        Grandmother testified that she is ready, willing, and able to continue caring for the Children. But she voiced a strong preference for adopting them rather than acting as their permanent guardian. When asked why, she offered her view that adoption would be “less confusing” for the Children and that she could be “a consistent parent” for them given her “resources.” She opined that a guardianship arrangement “may suit [Father],” but she didn’t think it was “in the [C]hildren’s best interests.” She also stated that she was worried about what would happen to the Children—and, specifically, whether they would return to Father’s custody—if something were to happen to her. She acknowledged, however, that she would be willing to care for the Children in either form of custody (adoption or guardianship). And she also acknowledged that, even if Father’s parental rights were terminated and she were allowed to adopt the Children, she would nevertheless be open to the possibility that Father could still have a role in the Children’s lives, and in that situation she would “ask for some guidance from people that know more than [she does] about that,” such as the Children’s therapist. She testified that she had discussed the possibility of adoption with the Children, and that D.S. had compared it to those “commercials on TV about adopting a dog.” Referring to that comment, Grandmother acknowledged that the Children “have some misconceptions about” what adoption would mean and stated that she had “tried to fix” those misconceptions, but she offered no specifics about how she had attempted to do that.

¶10      Father was the trial’s final witness. In his testimony, he first described the involvement he has had in the Children’s lives since their birth, stating that when the family was living together he saw the Children every day, “took them to school, [and] everything.” Father acknowledged that the situation had changed due to his incarceration, and he recognized that the virtual visits from prison are “not ideal” because there are often other inmates in the background on video calls and because the technology sometimes has issues, but overall, he offered his view that the visits had been going well and that he did not think the visits were uncomfortable for the Children. As he perceived it, the Children “seem[ed] excited to see” him and “always tell [him] they love” him. He credited the virtual visits for allowing him to “maintain a relationship with” the Children despite his incarceration. He stated that he had “a really good bond” with K.S., with whom he shares a connection to music. He also spoke positively of his visits with D.S., although he acknowledged that D.S. sometimes “gets upset because [Father] can’t be there with her” in person.

¶11      Father testified that he was scheduled to be released from prison in December 2022, and he articulated a desire to “have a stronger relationship with” the Children than he was able to enjoy during incarceration. Father acknowledged that, immediately upon his release from prison, he would be in no position to assume custody of the Children, because he would “have a lot of stuff to deal with,” like “getting a job,” addressing his housing situation, and sorting out outstanding “immigration” issues.[2] But he was vocal about wanting to continue and improve his relationship with the Children after his release from prison.

¶12 After the presentation of evidence, the attorneys made closing arguments. The juvenile court did not make any ruling on the record at the close of the trial; instead, it asked the parties to submit additional briefing on “the issue of strictly necessary.” A few weeks later, the parties submitted those supplemental briefs, and thereafter the court issued a written ruling terminating Father’s parental rights.

¶13 Because Father had conceded the existence of statutory grounds for termination, the only issue the court needed to address was whether termination of Father’s rights was in the best interest of the Children and, as part of that inquiry, whether termination was strictly necessary to promote the Children’s best interest. And on that score, the court concluded that termination was indeed strictly necessary. The court acknowledged that both Father and Grandmother love the Children. The court also acknowledged that “there were no allegations of abuse and neglect regarding [Father] at the time the [C]hildren were ordered into” the custody of DCFS.[3] But the court found that Father’s “ability to offer love, affection, [and] guidance, and to continue with the [C]hildren’s education is very limited both due to his incarceration and [the Children’s] resistance to engaging with” Father. The court noted that the Children “have had stability” with Grandmother and were doing well in her care. The court also referenced its belief that the Children “desire to remain with and be adopted” by Grandmother, but it made no determination that the Children were of sufficient capacity to be able to meaningfully express their desires in this context.

¶14      In addition, the court opined that adoption was “necessary and essential to [the Children’s] well-being as it will protect them from [Father’s] desire to have ongoing and frequent visitation.” The court chided Father for failing “to recognize that the [C]hildren . . . do not want to visit with him,” and concluded that this failure “raises questions as to whether [Father] could act in the [C]hildren’s best interest.” In the court’s view, the fact that Father “believes [the Children] enjoy the visits” and that he “would, ideally, exercise more visitation [after release from prison] is exactly why a permanent custody and guardianship neither protects nor benefits the [C]hildren.” The court stated that a guardianship arrangement would “fail to ensure adequate protections against [Father’s] commitment for increased and continued visitation,” and would leave the Children “vulnerable to [Father’s] residual parental rights.” Indeed, the court observed that, “under a permanent custody and guardianship order,” the Children’s “emotional and physical needs” would be “subsumed by [Father’s] residual rights.” The court offered its view that adoption would serve the Children’s needs better than guardianship would, because it “affords them the protection of ensuring that any future assessment of contact with [Father] will [be] considered solely from their respective points of view.” The court stated that, “[i]f the legal assessment for best interest and strictly necessary was from the parental perspective, permanent custody and guardianship with [Grandmother] would likely [be] the best solution.” But it observed that “the legal assessment of best interest and strictly necessary is focused solely upon the [C]hildren and their needs” and, viewing the situation from that perspective, the court concluded that termination of Father’s rights was strictly necessary to promote their best interest.

ISSUE AND STANDARD OF REVIEW

¶15      Father appeals the juvenile court’s termination order, and challenges the court’s conclusion that termination of his parental rights was strictly necessary to further the Children’s best interest. “We review a lower court’s best interest determination deferentially, and we will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re A.H., 2022 UT App 114, ¶ 30, 518 P.3d 993 (quotation simplified), cert. granted, 525 P.3d 1279 (Utah 2023). But “we do not afford a high degree of deference to such determinations; rather, we simply apply the same level of deference given to all lower court findings of fact and fact-like determinations of mixed questions.” Id. (quotation simplified). Moreover, because the “evidentiary standard applicable in termination of parental rights cases” is “the clear and convincing evidence standard,” we will “assess whether the juvenile court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” Id. (quotation simplified); see also In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867 (“Whether the juvenile court correctly concluded there was no feasible alternative to terminating . . . [the father’s] parental rights is a mixed question of fact and law,” and “we review the juvenile court’s findings of fact for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” (quotation simplified)).

ANALYSIS

¶16      “The right of parents to raise their children is one of the most important rights any person enjoys.” In re A.H., 2022 UT App 114, ¶ 31. Perhaps for this reason, our legislature has provided specific requirements that must be met before a parent’s rights may be terminated. First, at least one of the enumerated statutory grounds for termination must be present. See Utah Code § 80-4­301. Second, termination of parental rights must be in the best interest of the affected children. In re A.H., 2022 UT App 114, ¶ 32. “The party seeking termination of a parent’s rights bears the

burden of proof on both parts of this test,” and “that party must make this required showing by clear and convincing evidence.” Id. (quotation simplified).

¶17      At trial, Father did not contest the State’s assertion that at least one of the statutory grounds for termination of his parental rights was present. He did, however, contest the State’s assertion that termination was in the Children’s best interest. And his appellate challenge to the juvenile court’s termination order is similarly limited to the best-interest portion of the two-part test.

¶18      “The best-interest inquiry is wide-ranging and asks a court to weigh the entirety of the circumstances of a child’s situation, including the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” In re J.J.W., 2022 UT App 116, ¶ 26, 520 P.3d 38 (quotation simplified). Our legislature has provided important guidance regarding the best-interest question. First, statutes emphasize the importance of maintaining familial relationships where possible. As a general rule, it is “in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” Utah Code § 80-4-104(8). This is because “[a] child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.” Id. Therefore, “the juvenile court should only transfer custody of a child from the child’s natural parent for compelling reasons and when there is a jurisdictional basis to do so.” Id.see also In re A.H., 2022 UT App 114, ¶ 31 (stating that a parent’s “fundamental liberty interest in the care, custody, and management of the parent’s child . . . does not cease to exist simply because . . . a parent may fail to be a model parent” (quoting Utah Code § 80-4-104(1), (4)(a)(i))).

¶19      Next, our legislature requires that termination of parental rights be “strictly necessary.” Utah Code § 80-4-301(1). “Our supreme court has interpreted this statutory requirement to mean that ‘termination must be strictly necessary to promote the child’s best interest.’” In re A.H., 2022 UT App 114, ¶ 36 (quoting In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827). And as the juvenile court here correctly noted, this inquiry is to be conducted “from the child’s point of view,” and not from either the parent’s or the prospective adoptive family’s. See Utah Code §§ 80-4­104(12)(b), -301(1); see also In re B.T.B., 2020 UT 60, ¶¶ 25 n.5, 64 (stating that the “best interest analysis should be undertaken from the child’s point of view”). “[W]hen two placement options would equally benefit a child, the strictly-necessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.” In re G.D., 2021 UT 19, ¶ 75, 491 P.3d 867; see also In re J.J.W., 2022 UT App 116, ¶ 29 (“Courts must start the best interest analysis from the legislatively mandated position that wherever possible, family life should be strengthened and preserved, and if the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” (quotation simplified)). Thus, the best-interest inquiry—informed by the “strictly necessary” requirement—“requires courts to explore whether 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.” In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). In particular, “courts should consider whether other less-permanent arrangements might serve the child’s needs just as well” as termination of the parent’s rights would. Id. (quotation simplified).

¶20    With these considerations in mind, we turn to the issue at hand: whether the State presented clear and convincing evidence that termination of Father’s rights was strictly necessary to promote the Children’s best interest. The juvenile court determined that the State had cleared this hurdle, and it based its best-interest determination largely on two subsidiary conclusions: (1) that the Children needed stability, which the court believed could be better provided through adoption than through a permanent guardianship arrangement, and (2) that the Children needed to be “protect[ed] against [Father’s] commitment for increased and continued visitation,” including protection against Father’s “residual rights,” which protection the court believed could be better provided through adoption than through a permanent guardianship arrangement. Father asserts that, on this record, these reasons constitute an insufficient basis to terminate his parental rights, and he maintains that the juvenile court’s determination was therefore against the weight of the evidence. We agree with Father.

¶21 The court’s first conclusion—that adoption affords a somewhat higher deg