Benjamin K. Lusty, Attorney for Appellant Mary Deiss Brown, Attorney for Appellee
JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
LUTHY, Judge:
¶1 In Lucas Allen and Cassandra Kathleen John’s divorce decree, the district court gave Lucas[1] sole legal and physical custody of the parties’ daughter, Child. The decree gave Cassandra once-a-week virtual parent-time and in-person parent-time as often “as the parties agree, or as recommended by the reunification therapist.” The court ordered that Cassandra’s virtual parent-time “not be . . . monitored” but that her in-person parent-time be “subject to line-of-sight supervision.” The court then outlined a “reunification” plan, with the goal of Cassandra’s eventual transition to unsupervised parent-time with Child.
¶2 Cassandra contends that the district court erred by ordering supervised in-person parent-time without making the statutorily required finding of “evidence that [Child] would be subject to physical or emotional harm or child abuse . . . from [Cassandra] if left unsupervised with [her].” Utah Code § 30-3-34.5(1).[2] Cassandra also forwards multiple arguments in support of the assertion that the court erred by failing to provide, as required by statute, “specific goals and expectations” for her to meet “before unsupervised parent-time may be granted.” Id. § 30-3-34.5(5). We conclude that the district court made an adequate finding of evidence that Child would be subject to physical or emotional harm from Cassandra if left unsupervised with her, and we conclude that each of Cassandra’s arguments regarding specific goals and expectations is either mistaken or unpreserved. We therefore affirm.
BACKGROUND
¶3 Lucas and Cassandra married in March 2014. Child was born in September of that year. Cassandra had “engaged in drug use over the years,” and “even though [Cassandra] was a stay-at-home mom,” Lucas “hired a baby-sitter to take care of [Child] . . . because of [Cassandra’s] drug use” and because “he feared for [Child’s] safety.”
¶4 Soon after Child was born, Cassandra became pregnant with the parties’ second child. When the second child was born, the baby “had substances in her system,” “indicat[ing] that [Cassandra had been] engaging in activities that were potentially harmful to the . . . child.” This child died shortly after her birth.[3]
¶5 The parties separated around May 2016, and Cassandra moved in with her boyfriend later that year. In August 2016, Lucas petitioned for divorce. The next month, he moved for temporary orders to grant him sole legal and physical custody of Child. He also requested that Cassandra’s visitation time with Child be supervised and that Cassandra be ordered to submit to drug testing.
¶6 Around this time, Lucas and Cassandra were together “at a local restaurant” when Cassandra “took [Child], put her in the front seat of [a] truck without any car seat or any appropriate child restraints and then drove off,” hitting Lucas with the truck in the process. A temporary protective order was entered against Cassandra because she had attempted to run Lucas over with her truck and abscond with Child. A hearing on the protective order was held in October 2016, at which the commissioner recommended dismissal of the protective order,[4] entry of a mutual restraining order, and the granting to Cassandra of “unsupervised parent time . . . with no overnights.”
¶7 On December 8, 2016, a hearing was held on Lucas’s Motion for Temporary Orders. Following the hearing, the court entered mutual restraining and no-contact orders against the parties, awarded Lucas temporary sole legal and physical custody of Child, and directed Cassandra to “submit to a hair follicle [drug] test before 5:00 p.m.” that day. The court gave Cassandra parent-time “with . . . no overnights” and provisionally ordered that it be “facilitated” by a particular family friend. The court further instructed that if Cassandra’s drug test came back positive, Lucas’s attorney was to “call the court to schedule a telephone conference to determine the status moving forward.”
¶8 Cassandra’s hair follicle drug test came back positive for both cocaine and marijuana, and another hearing was held on December 20, 2016. Following that hearing, the court ordered that Cassandra’s parent-time be subject to line-of-sight supervision and that Cassandra complete another drug test by January 9, 2017.
¶9 On January 9, 2017, Cassandra submitted an “unofficial” drug test showing negative results for a collection taken that day. At a review hearing on January 30, 2017, however, the commissioner was “concern[ed]” because the results of the January 9 unofficial test were “drastically different” than the results of the test on December 8, 2016. The commissioner therefore directed Cassandra to complete another drug test that day. The commissioner also ordered “continue[d] . . . supervised parent time, status quo,” and set a review hearing for February 13, 2017.
¶10 Cassandra’s drug test on January 30, 2017, came back positive for marijuana, and following the February 13 review hearing, the court ordered “expanded supervised parent-time” with “no overnight visits.” It also ordered Cassandra to submit to a urinalysis by March 8, 2017, and it set another review hearing for March 13, 2017.
¶11 Cassandra took the required test before the March 13 review hearing, but she failed to submit the results. Her counsel (Counsel) nevertheless proffered at the hearing that the test had come back “positive for THC.” The court ordered that Cassandra’s parent-time remain subject to “direct line-of-sight” supervision “with no overnight visits.”
¶12 “At some point”—likely during April 2017—Cassandra “moved to Idaho for several months.” After a “stint in Louisiana,” she then moved to Iowa and lived there with a boyfriend. Once she had left Utah, Cassandra did not request any review hearings or make any attempt to exercise in-person parent-time with Child. As a result, she was “around [Child] physically on [only] three occasions” between January 2017 and June 2021.
¶13 Eventually, in March 2021, after compromise negotiations proved only minimally successful, the court held a bench trial on the parties’ outstanding issues. At the time of trial, Child was six years old.
¶14 Following trial, the court held a hearing to orally announce its rulings. To Cassandra’s credit, the court found that she was “trying to make some changes in her life,” including engaging in “therapy to resolve anger, trauma, and substance abuse” issues, and that she “appear[ed] to be improving.” But the court found that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” “consider[ed] her own needs first and primary over [Child]’s,” and might not be “completely emotionally stable.” The court also found that Cassandra had engaged in “instances of violence” in the past (including the one that led to the temporary protective order noted above). And it found that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were due to her “history with drug abuse.” Based on the foregoing findings, the court awarded Lucas sole legal and physical custody of Child.
¶15 The court then granted Cassandra supervised in-person parent-time at a frequency to be determined by a therapist and unsupervised virtual parent-time at least once per week. The court said that it thought there ought to be “some sort of ramping up” of supervised in-person visits and that a therapist should “come up with a schedule” for those visits after talking with Child, Cassandra, and Lucas to “see what’s appropriate.” The court further explained, “I expect that the therapist will come up with so many overnights so that [Cassandra] can practice with all of those things, and then once she’s completed the therapist’s plan, then I would say that the standard relocation statute would then become effective.” Counsel then asked whether “at that point”—i.e., when Cassandra had completed the therapist’s plan—“supervision would no longer be required.” The court responded, “I don’t know, Counsel,” “because there’s . . . some ongoing drug issues . . . and we don’t have any evidence . . . that she would have clean tests.”
¶16 Counsel then asked if the court was going to make findings as to whether Child “would be in danger if she were with [Cassandra unsupervised].” In response, the court said:
[G]iven that [Cassandra]’s not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger; but given also that she hasn’t been around [Child] physically except for three times, I just think that’s problematic.[5]
¶17 Counsel then said, “So . . . [a]fter two things occur, if I understand correctly, then [Cassandra]’s parent time will be according to [section] 30-3-37 and unsupervised.” He listed “one, the completion of the ramp up period as recommended by the therapist; and two, . . . submitting to the Court a clean drug test.” He asked, “Is that accurate?” The court responded that it could not “say that [Cassandra]’s going to go immediately to unsupervised [visitation] after the ramp up” because the court might “need some more information at that point.”
¶18 Counsel then informed the court, “My understanding, your Honor, is that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court replied, “I . . . don’t know what the therapist is going to say, Counsel. So I think it’s a little bit speculative. . . . What I’m going to have to see is what the therapist recommends, and then I can give you some further instructions at that point.” It added, “But yes, we do need her to have clean drug tests . . . .” Then the court, Counsel, and Lucas’s attorney discussed what the drug test requirements would be.
¶19 Counsel later asked, “Your Honor, what would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The court asked Lucas’s attorney if she “want[ed] to respond,” saying, “[Counsel] wants criteria on how to remove supervision.” Lucas’s attorney explained that she did not think there was “enough information . . . to anticipate . . . the factors that [the court was] going to have to consider” and that it seemed reasonable to “notice up a hearing after [the parties got] a lot of these things going[] and have enough information to go ahead.” But the court indicated that it was “not going to notice up a hearing at [that] point.” It directed the parties to “get the therapist on board first, and . . . to do that within three weeks,” then to get “the drug test filed.” The court said, “[A]fter I’ve reviewed these things[,] . . . I’d like to make sure that Cassandra is complying with everything, and that she’s able to do what she needs to do.” It further stated, “So I would like to do that as quickly as possible, [Counsel], but I don’t know how long of a period it’s going to take because it will also depend on whether or not your client is able to do everything that’s required. I hope that she does.”
¶20 Counsel then, again, stated his interpretation of the process the court was explaining:
[I]t sounds like . . . you’re saying that there’s a two-step process. That we won’t be able to arrive at the criteria for . . . when supervision will be lifted until [Cassandra] has complied with everything the therapist has said and filed clean drug tests. Then we can come back to have a hearing to determine what the criteria are for supervision to be lifted; is that accurate?
¶21 At that point, the court turned to Lucas’s attorney and asked whether she “[had] any objection” to the process Counsel had just summarized or whether she thought that supervision “should be lifted” as soon as Cassandra “completes the criteria” the court had already identified. She said that she thought “there might be concerns” even after Cassandra completes reunification therapy, although she did not “know what they would be.” The court then said, “Let’s just get through the therapy portion, and then I want to see what the reports are. . . . It could be likely that if she’s successful with all of th[e] things [the therapist recommends] that the Court will lift supervision at that time.”
¶22 Counsel once again spoke, seeking “to clarify” certain matters by asking, “[I]f after [Cassandra] has met with the therapist and complied with the therapist, the therapist recommends that supervision be lifted, . . . then would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” The court replied that it “[did not] know the answer to that yet,” saying, “[B]ut let’s go through that, and if the therapist recommends it, if we need to have a discussion with the therapist present, then we might need to do that, okay? Because I might . . . have some questions.”
¶23 Counsel then asked the court to order that the therapist be an Association for Family and Conciliation Courts therapist, and the court agreed. Then the court said, “If there’s no other questions, I do need to get to my next hearing.” Counsel initially replied that he had “[n]o other questions” but then said, “Last question, your Honor. . . . [I]s the review hearing going to be . . . before you or the Commissioner?” The court answered that the review hearing would be before the court.
¶24 The court concluded the hearing and memorialized its oral rulings into written Findings of Fact and Conclusions of Law and a Decree of Divorce. Cassandra appeals.
ISSUES AND STANDARDS OF REVIEW
¶25 On appeal, Cassandra contends that the district court erred in two ways when it ordered supervised parent-time. First, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(1) because the court “did not find that Cassandra poses a present threat of harm” to Child. Second, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(5) because the court did not “provide specific goals and expectations for Cassandra to meet” in order to be granted unsupervised parent-time. “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).
ANALYSIS
Adequacy of the District Court’s Findings in Support of
Supervised Parent-Time
¶26 Cassandra argues that the district court erred in ordering supervised parent-time because it did not make the finding that the Utah Code mandates as a prerequisite to supervised parent-time. The pertinent portion of the relevant provision reads as follows:
When necessary to protect a child and no less restrictive means is reasonably available . . . , a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5114, from the noncustodial parent if left unsupervised with the noncustodial parent.
Utah Code § 30-3-34.5(1).
¶27 As an initial matter, we agree with Cassandra’s assertion that this statute means that the court must find a current risk of harm to the child from unsupervised parent-time, “rather than merely [a] past or historic risk of harm.” (Emphasis added.) To require “evidence that the child would be subject to . . . harm or . . . abuse . . . if left unsupervised with the noncustodial parent,” id. (emphasis added), is to require evidence of harm or abuse during a potential situation that would occur, if at all, in the future.[6] Thus, before ordering supervised parent-time, a court must find that there is evidence that harm or abuse could occur in the future, not merely that harm or abuse, or a risk of harm or abuse, occurred or was present in the past.
¶28 That is not to say that the existence of harm, or a risk of harm, from a noncustodial parent in the past has no bearing on whether there is a risk of harm from that parent in the future. Evidence that harmful or potentially harmful circumstances from the past have recurred or have not substantially abated could certainly be probative of whether there is a risk of harm in the future.
¶29 Moreover, a court need not find that the child definitely would be subjected to harm or abuse if left unsupervised with the noncustodial parent. Rather, a court is required to find only “evidence that the child would be subject to . . . harm or . . . abuse” if left alone with the noncustodial parent. Id. (emphasis added). For this reason, we, like Cassandra, conclude that a finding of a presently existing threat or risk of harm or abuse is sufficient to support supervised parent-time under section 30-3-34.5(1).
¶30 However, we disagree with Cassandra that “the district court did not find that [she] presently poses a threat of harm to [Child] if she were [to be left] unsupervised with [Child].”
¶31 Cassandra’s argument here is a challenge to the adequacy of the district court’s findings, not to the sufficiency of the evidence.[7] When we assess the adequacy of findings, “we review the [trial court’s] written and oral findings of fact together to determine if they are [adequate] to support the trial court’s rulings.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 17, 176 P.3d 476. See generally Utah R. Civ. P. 52(a)(1) (“The findings . . . may be stated in writing or orally following the close of the evidence.”). This is particularly true when “the written findings are incomplete, inadequate, or ambiguous.” Bill Nay & Sons Excavating v. Neeley Constr. Co., 677 P.2d 1120, 1121 (Utah 1984). In those instances, the written findings “may be elaborated [on] or interpreted (in respects not inconsistent therewith) by reference to the trial court’s . . . oral explanation of the decision.” Id. This is one of those instances.
¶32 Cassandra supports her argument that the court failed to make the requisite finding by pointing to only one statement from the district court’s written findings: “[I]t is not clear whether [Cassandra] is still a danger to [Child].” But the court orally supplied additional findings and reasoning. When asked if it was going to make findings as to whether “[Child] would be in danger if she were with [Cassandra],” the court replied, “[G]iven that [Cassandra has] not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger . . . .” (Emphasis added.) The court then added that it also found it “problematic” that Cassandra “[had]n’t been around [Child] physically except for three times” during the preceding four-plus years. Because Counsel, in posing the question, employed the phrase “[Child] would be in danger if she were with [Cassandra]” to summarize the requirement of a current threat of harm or abuse, we take the court’s responsive statement that Cassandra “potentially could still be a danger” to Child to be a finding of a current threat of physical or emotional harm to Child if Child were to be left unsupervised with Cassandra.[8]
¶3 Our reading of the court’s answer to Counsel’s question is bolstered by the fact that it came on the heels of additional findings that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” that Cassandra still “consider[ed] her own needs first and primary over [Child]’s,” that Cassandra still might not be “completely emotionally stable,” and that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were linked to her “history with drug abuse.” When the court’s response to Counsel’s question is viewed in the context of these and other findings, its import is unmistakable: Cassandra has a history of drug abuse, which, without objection, merited supervised parent-time in the past; since supervised parent-time was instituted, Cassandra has failed to provide a negative drug test; six-year-old Child has been in Cassandra’s physical presence only three times over the course of four-plus years; and Cassandra remains immature, potentially emotionally unstable, and self-centered in relation to Child; accordingly, Cassandra “potentially could still be a danger” to Child in the present. This finding is adequate to support the court’s order of supervised parent-time.[9]
The District Court’s Provision of Specific Goals and Expectations to Discontinue Supervised Parent-Time
¶34 When a court orders supervised parent-time, it must “provide specific goals and expectations for the noncustodial parent to accomplish before unsupervised parent-time may be granted.” Utah Code § 30-3-34.5(5). Cassandra’s initial brief on appeal states at least two, and perhaps three, independent arguments to support her assertion that the district court did not comply with section 30-3-34.5(5). We disagree with her first argument, and we conclude that her second possible argument and her third argument are unpreserved.
¶35 Cassandra’s first argument regarding the district court’s compliance with section 30-3-34.5(5) is that the court’s orders “are silent on the question of what conditions Cassandra must meet prior to [the] lifting of supervised parent time” and that, because of this purported silence, “the district court erred.” Cassandra is mistaken, however.
¶36 After Counsel informed the court of his understanding that the court “need[ed] to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed,” the court said that it “need[ed] her to have clean drug tests” and also directed the parties to “get [a] therapist on board . . . within three weeks.” Moreover, Cassandra acknowledges that the court ordered her to complete reunification therapy. The court repeated these requirements multiple times. Plainly, the court provided three specific goals or expectations for Cassandra to meet before unsupervised parent-time would be granted: (1) Cassandra needed to provide clean drug tests in connection with her supervised visitation; (2) Cassandra needed to work with Lucas to identify a therapist within three weeks; and (3) Cassandra needed to complete reunification therapy as determined by the therapist. Thus, Cassandra’s first argument fails.
¶37 Next, Cassandra asserts that the district court did not comply with Utah Code section 30-3-34.5(5) because the court did not say that “completion of reunification therapy . . . [was] a condition precedent to lifting supervised parent time.”[10] What Cassandra means by this assertion is not clear. If what she means is that completion of reunification therapy is not a condition the court expected her to meet before supervision would be lifted, this is merely a restatement of Cassandra’s first argument and Cassandra is simply mistaken, as we have explained. On the other hand, if what she means is that to comply with section 30-3-34.5(5), a court must identify at the time it orders supervised parent-time a comprehensive list of the things the parent must do to receive a guarantee that supervision will be lifted, she did not preserve this potential issue for our review.
¶38 “In order to preserve an issue for appeal,” the appellant must have “presented [it] to the trial court in such a way that the trial court ha[d] an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (cleaned up). “For a trial court to be afforded an opportunity to correct [an asserted] error (1) the issue must be raised in a timely fashion, (2) the issue must be specifically raised, and (3) the challenging party must introduce supporting evidence or relevant legal authority.” Id. (cleaned up). As to the second of these requirements, “an objection must at least be raised to a level of consciousness such that the trial court can consider it.” State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (cleaned up).
¶39 Here, Counsel indicated to the district court that his “understanding” was “that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court then identified or reiterated three specific criteria for Cassandra to meet, as we have explained. Counsel then repeated, over the course of a lengthy discussion, essentially the same question three times. First, he asked, “[W]hat would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The second time he described “a two-step process” in which the parties “won’t be able to arrive at the criteria for” lifting supervision “until [Cassandra] has complied with everything the therapist has said and filed clean drug tests” and they then “come back to have a hearing to determine what the criteria are for supervision to be lifted.” He asked the court, “[I]s that accurate?” Finally, “to clarify,” he asked a third time whether—“after [Cassandra] has met with the therapist and complied with the therapist”—if “the therapist recommends that supervision be lifted, . . . would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” Each of these questions came after the court had iterated or reiterated specific initial expectations for Cassandra to meet to have supervision lifted. In that context, each of Counsel’s foregoing questions can be fairly understood as an attempt to clarify when or whether additional expectations would be set, not as an objection to the fact that the court had not identified a comprehensive set of expectations at the outset.
¶40 Indeed, after the second of the foregoing questions from Counsel, the court turned to Lucas’s attorney and asked if she objected to the process Counsel had just summarized. This clearly indicates that the court did not understand Counsel’s question to be an objection but rather an attempt at clarification. Thereafter, Counsel emphasized the notion that he was attempting to gain clarity rather than objecting when he explicitly prefaced the third of his questions by stating that he was seeking “to clarify.” Then, after the court reiterated for the third time its initial expectation— for Cassandra to “go through” therapy—it said, “If there’s no other questions, I do need to get to my next hearing.” Cassandra’s counsel responded not by objecting but by saying: “Last question, your Honor. . . . [Ills the review hearing going to be . . . before you or the Commissioner?”
¶41 Given the foregoing, we conclude that even if Counsel was trying to raise an objection to the fact that the district court had not provided a comprehensive set of expectations for Cassandra to meet in order to have supervision of her parent-time lifted, he did not raise that objection to a level of consciousness in the mind of the court such that the court could consider it. Accordingly, this potential issue was not preserved for our review. See Cruz, 2005 UT 45, ¶ 33; State v. Olsen, 860 P.2d 332, 336 (Utah 1993) (“A party who fails to make a clear and timely objection waives the right to raise the issue at the appellate level.” (cleaned up)).
¶42 Finally, Cassandra argues that the expectation that she complete reunification therapy as determined by a therapist before she is allowed unsupervised parent-time violates section 30-3-34.5(5) because that section “does not allow the district court to delegate the [setting of conditions for the lifting of supervision] to a therapist.” Again, she did not raise this issue below. Because it is unpreserved, we do not address it. See True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 427 P.3d 338 (stating that “an argument based upon an entirely distinct legal theory is a new claim or issue and must be separately preserved” (cleaned up)).
CONCLUSION
¶43 The district court made an adequate finding that Cassandra posed a present risk of harm to Child if Child were to be left unsupervised with her. Additionally, Cassandra’s first argument in support of a conclusion that the district court failed to comply with Utah Code section 30-3-34.5(5) by not providing specific goals and expectations for Cassandra to meet before being granted unsupervised parent-time is mistaken, and her other arguments in support of that conclusion were unpreserved. We therefore affirm.
There are two kinds of child custody, not just one. Those two different kinds are legal custody and physical custody.
Legal custody is the power of a parent to make decisions for a minor child regarding the child’s health and health care, education, moral and religious upbringing, and other matters pertaining to the child’s general welfare.
Physical custody of a child Is defined as that parent’s right to have the child reside physically with that parent.
You hear about the terms “sole custody” and “joint custody”. Parents can be awarded sole legal or joint legal custody of their children. They can be awarded sole physical or joint physical custody of their children. There is also what is known as a “split custody” award.
Another term that is often used for sole custody is primary custody. That is something of a misnomer.
Sole custody in the context of legal custody would mean that one parent and one parent alone has the power to make decisions for the child. Joint legal custody would mean that both parents share the right to make choices pertaining to the child. That stated, however, courts can and often do award parents the ostensible joint legal custody of their children, and yet give one parent the sole and exclusive right to decide in the event the parents cannot reach agreement. If you ask me, that can’t, in intellectual honesty, be joint legal custody, but I digress.
Sometimes Utah courts will divide legal custody between the parents such that one parent may have the right to make all decisions in a particular area. For example, the court could award the mother the right to make all healthcare decisions and award the father the right to make all education decisions for the children. That sort of arrangement would be known as a “split” legal custody award because neither parent has the sole and exclusive power to make all decisions regarding the child, the parents are not awarded joint legal custody such that they must make decisions jointly, but each parent has some soul and exclusive power to make some decisions, though not all decisions, pertaining to the child’s upbringing.
This is a good question and one that arises frequently in one form or another; a parent either can’t or won’t provide personal care and supervision of the parties’ children his/her scheduled parent-time or custody yet does not want the other parent to care for the children in his/her absence.
Some parents try to pull this stunt because either 1) they are territorial about “my time” with the children and thus can’t stand the idea of the other parent caring for the children during “my time”; or 2) they maliciously want to deny the other parent the opportunity to provide this care for the children. Others try to pull this stunt because they are afraid they will lose the child custody or parent-time they were awarded if they allow the other parent the opportunity to provide care for the children (yet believe that if someone else provides the care that somehow makes retaining custody and parent-time more “secure”). This is wrong, and is something you can take to the court to complain about and seek new court orders to remedy.
But sometimes a parent occasionally wants to leave the children in the care of someone else for perfectly reasonable, even laudable reasons, such as wanting the kids to enjoy time with grandma and grandpa or with the cousins, a sleepover at a friend’s house, and things like that. Clearly, it’s not defensible if it is the rule and not the exception, but there is nothing wrong with this on occasion. Indeed, refusing to be flexible and to allow a parent to do this for your kids is unfair to your kids.
If custody order says mother and child are not allowed to leave the state, is there any chance the court would allow them to go on a vacation to another country if the father says no?
I cannot speak for all jurisdictions, but I can answer the question based upon the law where I practice divorce and family law (Utah):
First, if the court were to order a parent not to leave the state (just the parent, not the parent with the child), that would likely be held unconstitutional, as a civil court does not have the authority to infringe upon an individual’s right to travel without a compelling reason.
Second, if the court were to order a parent not to leave the state with the child, that may be within the court’s authority to do so, especially if:
there were evidence that you have tried to abscond with the child to a foreign country (whether the foreign country is beyond the reach of the Hague Convention) or are at risk of absconding with the child to a foreign country.
the custody award, such as a joint physical custody award, was conditioned upon the parties residing within a certain geographical distance of each other.
That stated, if:
there is no concern about you absconding with the children to a foreign country, never to return;
the foreign country to which you want to travel on vacation is not a dangerous place (i.e., a place where Americans are routinely kidnapped or killed and/or where there are wars, insurrections, and/or dangerous natural disasters occurring);
there is no harm that a child would suffer by traveling with you internationally (such as a certain health or medical or mental health condition that makes international travel a serious danger to the child), I cannot see any reason why a court would deny you the right to travel to a foreign country on vacation; and
there is no other compelling reason to deny you and the child(ren) the opportunity to vacation internationally,
I doubt that any court would bar you from travelling internationally with the child(ren).
Utah Family Law, LC | divorceutah.com | 801-466-9277
What would you do if your child’s father who is only entitled to supervised visitation filed for a modification of a court order so a family member you don’t approve of could supervise visits?
Here’s what I would do:
First, remember that merely claiming that the proposed visitation supervisor poses a clear and serious danger to the child’s mental or emotional health without having proof or some highly credible evidence does not simply make for a weak argument, it could call your credibility into question.
I would first ask: if you have proof or highly credible evidence that there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the child’s life, safety, or health.
If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
If the answer is “no,” then I would ask if there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the life, safety, or health of the other parent or of anyone else?
If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
If the answer is “no,” then I would ask: if there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the child’s mental or emotional health?
If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
If the answer is “no,” then I would ask if there is anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the mental or emotional health of the other parent or of anyone else?
If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
If the answer is “no,” then I would ask if there is anything about the proposed supervisor that indicates he/she is not available to provide supervision as needed and/or cannot provide supervision responsibly and reliably.
If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
If the answer is “no,” then I would likely see no point to objecting to the proposed supervisor because I would have no valid argument against the appointment of this supervisor.
Can a mother lose custody even if the child is still very young?
Are there any situations where a mother can lose custody even if their child is still very young (e.g., under 5 years old)?
Oh, heck yeah. Many possible situations. Rather than identify all the various ways that a mother of a young child could lose or not be awarded sole or primary custody of that child or children, let’s just examine the basis for determining whether a parent keeps, wins, or is deprived of custody of a child. All states have slightly different criteria but these criteria all come down to this: parental fitness.
Parental fitness is evaluated in the contexts of a parent’s desire and ability to provide for the child’s physical and emotional needs and welfare.
In Utah, where I practice family law and go to hearings and trials over child custody disputes, the factors the court must consider and factors that the court can consider when determining whether to award sole or joint custody are contained in these sections of the Utah Code and the Utah Rules of Judicial Administration:
(a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;
(b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:
(i) physical needs;
(ii) emotional needs;
(iii) educational needs;
(iv) medical needs; and
(v) any special needs;
(c) the parent’s capacity and willingness to function as a parent, including:
(i) parenting skills;
(ii) co-parenting skills, including:
(A) ability to appropriately communicate with the other parent;
(B) ability to encourage the sharing of love and affection; and
(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and
(iii) ability to provide personal care rather than surrogate care;
(d) in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;
(e) the emotional stability of the parent;
(f) the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;
(g) whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;
(h) the parent’s reasons for having relinquished custody or parent-time in the past;
(i) duration and depth of desire for custody or parent-time;
(j) the parent’s religious compatibility with the child;
(k) the parent’s financial responsibility;
(l) the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;
(m) who has been the primary caretaker of the child;
(n) previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;
(o) the relative benefit of keeping siblings together;
(p) the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;
(q) the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and
(a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;
(b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
(c) co-parenting skills, including:
(i) ability to appropriately communicate with the other parent;
(ii) ability to encourage the sharing of love and affection; and
(iii) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and
(d) whether both parents participated in raising the child before the divorce;
(e) the geographical proximity of the homes of the parents;
(f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;
(g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
(h) the past and present ability of the parents to cooperate with each other and make decisions jointly; and
How does the court view mothers that abandon their family during a divorce?
Generally, with disbelief, at first. Why? A few reasons.
One, to its credit, our culture still holds the concept and institution of motherhood in high esteem, so most people (and judges are people) believe that mothers are good, devoted caregivers. Most mothers are just that. So it is not easy to accept what our senses are conveying when a mother behaves contrary to our cultural expectations. We tend to see mothers as we want to see them, not as they always are.
Two, few bad mothers are honest with the court about being bad mothers. So the false face that most bad mothers present to the court is (primarily, but not solely, because of point number one) not only hard to detect as false, but easily accepted or acceptable as genuine.
One way bad mothers divert attention from their faults and misconduct is by blaming the fathers for those faults and misdeeds. Just as we tend to put mothers on a pedestal in our culture, we unfairly tend to see and treat many fathers as second-class parents. The feeling is like, “Yeah, they are important to a child’s upbringing, I guess, but they aren’t as vital and important to a child’s development as a mother, so we give dads less of the benefit of the doubt.” This is so wrong for so many reasons, but nevertheless it happens so often.
If kids are abused or neglected, bad mothers blame the guiltless fathers with a high rate of success in court. For example: violence perpetrated by men can be more severe than violence perpetrated by women, so if a child is a victim of domestic violence, it’s easy to assume Dad is the perpetrator (interestingly, FBI statistics show women commit just as much, if not more, domestic violence than men). If Dad has a full-time job, it’s easy to presume that Mom is the full-time caregiver, not a lazy slob who drinks herself numb every day and lets the kids run amok until Dad gets home to restore order and attend to the children’s need.
Three, even when a bad mother’s defects are unavoidably and undeniably exposed, many courts possess surprisingly great supplies of sympathy and forgiveness that they would rarely or not so readily extend to a father. It so often gets framed like this, for example: a mother who abuses drugs or alcohol is a victim whose substance abuse is a cry for help. A father who abuses drugs is a narcissist who lacks self-discipline. A mother with crippling mental health issues is deserving of our concern and rehabilitation. A father with crippling mental health issues is a danger against which the children need protection. I’ve personally witnessed many cases where mom was abusive and/or neglectful and dad was not, yet mom was awarded primary physical custody of the children because the court felt so strongly that the kids “need their mother,” that somehow mom had earned the right to be the custodial parent by virtue of being a woman, and that mom could and would overcome her shortcomings (not because there was credible evidence that she can and wanted to overcome those shortcomings, but because the court had to make such a finding to justify the award of custody to the worse of the two parents).
To be clear, I am not telling you that courts cannot identify bad mothers or that they cannot or will not shield children from bad mothers. Many people—moms and dads alike—when discovered for the mediocre, even dangerous, parents they are, are not awarded child custody and/or are subject to supervision around their children. It can and does happen. But that is not what discussed here. In response to the question of which parent among mothers and fathers gets undeserved breaks more in divorce cases, it is mothers hands down. Now you know some of the main reasons why.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Would you be ok with a parent getting out of jail and having full unsupervised visitation?
Under certain circumstances, yes. Certainly.
If the jailed parent was jailed for non-violent, non-dangerous crimes like unpaid parking tickets or check kiting, it would not make sense to restrict parent-time to supervision, reason being that there is no evidence that unpaid parking tickets or check kiting makes one a danger to the child.
Utah Family Law, LC | divorceutah.com | 801-466-9277
THE UTAH COURT OF APPEALS
KIRSTEEN DIDI BLOCKER, Appellee,
MICHAEL PHILLIP BLOCKER, Appellant.
Opinion
No. 20170167-CA
Filed May 16, 2019
Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 024402553
Michael Phillip Blocker, Appellant Pro Se
Grant W. P. Morrison, Matthew G. Morrison, and
Justin T. Morrison, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY
concurred.
MORTENSEN, Judge:
¶1 We previously considered this case in Blocker v. Blocker (Blocker I), 2017 UT App 10, 391 P.3d 1051, and remanded it to the district court to enter findings of fact to support its ruling granting Kirsteen Didi Blocker (Mother) unsupervised parent-time with her now sixteen-and-a-half year old son (Child). Michael Phillip Blocker (Father) appeals the district court’s post-remand judgment. We affirm.
¶2 Mother and Father were married in 1997, separated just weeks after Child’s birth in 2002, and divorced in 2004. Mother and Father were awarded joint custody, with Child’s primary physical care and residence being with Mother. In response to Father’s petition to modify custody and concerned about the detrimental impact of Mother’s behavior on Child, the district court granted sole legal and physical custody to Father in 2010 (2010 Order). The district court ordered that Mother’s parent-time be supervised until she “changed her mind set with regard to her own parenting abilities and Father’s relationship with the child.” Blocker I, 2017 UT App 10, ¶ 4, 391 P.3d 1051 (cleaned up). But concerned that supervised parent-time would be impractical for financial reasons, the court permitted Mother to have unsupervised parent-time provided that she retain a special master and participate in individual therapy by herself and joint therapy with Child. Id. Until she verified compliance with these conditions, Mother’s parent-time remained supervised. Id.
¶3 In 2014, in response to Mother’s motion to modify the 2010 Order and based on a home study report, the district court temporarily granted Mother unsupervised parent-time. Id. ¶¶ 5–6. Nearly one year later, having received no other evidence or testimony, the court decided to make Mother’s unsupervised parent-time permanent without entering any findings of fact. Id. ¶ 7.
¶4 Father appealed, and we determined that the court had made its order granting unsupervised parent-time to Mother “permanent without explaining the basis for its decision.” Id. ¶ 16. Because the court modified the parent-time requirements without providing any findings, we concluded that we were unable to review its decision and remanded for more detailed findings. Id. ¶ 21.
¶5 Regarding the changed circumstances, on remand the district court made the following findings of fact: (1) Mother had continued professional therapy; (2) Mother and Mother’s father were maintaining a relationship with Child by going to Father’s house and being allowed to spend time with Child in their car, at the curbside, for about one hour, two to three times a week; (3) Father’s brother (Uncle) supervised visits between Mother and Child during the Thanksgiving and Christmas holidays without problems being noted; (4) Child was allowed to sit and visit with Mother and her family during a church Christmas program without incident; (5) Mother was allowed to speak by phone with Child two to three times per week; (6) Child was older when the district court modified parent-time; and (7) Child had received substantial therapy at the time the district court modified parent-time. The court also identified three circumstances that rendered the 2010 Order unenforceable: (1) the parties were unable to afford the cost of supervised exchanges, supervised visitation, or the services of a special master; (2) the therapist identified in the 2010 Order to oversee therapy of Mother and Child was no longer available; and (3) the agency assigned to supervise Mother’s parent-time in the 2010 Order was no longer in business in Mother’s geographical area.
¶6 Regarding Child’s best interest, the district court on remand noted that both parties “wished to reasonably accommodate a relationship between [Child] and [Mother].” The court explained that “curbside parent time . . . was not in the best interest of [Child]. He needed a more reasonable and less artificial opportunity to know his [Mother] and her family.”
¶7 The district court further described the process by which it granted Mother unsupervised parent-time. Because parent-time supervised by Uncle had been “successful and without incident,” the court concluded that Mother should be allowed to exercise unsupervised parent-time on a temporary basis. At the time the district court modified parent-time, Mother had been exercising unsupervised parent-time for nearly one year without any reported incidents. Although Father speculated that Mother was engaging in “parental alienation” during her parent-time, the court noted that Father offered no evidence to support this contention. The court concluded by pointing out, “[Child] was 6 years older and in spite of the curbside restrictions and other difficulties over the years, he and [Mother] had developed and continued to maintain a positive parent/child relationship.” And with regard to Mother, the court noted that she had “demonstrated an ability through the evaluation and her practice over several months to maintain a reasonable relationship with [Child].”[2] Thus, the court concluded that it was appropriate to “reconcile the now unenforceable 2010 Order and the current state of affairs” by allowing unsupervised parent-time as the means to “most effectively foster a continuing relationship” between Child and Mother. Father appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 The first issue on appeal is whether the district court erred when it determined that the unenforceability of the conditions for Mother to have unsupervised parent-time with Child constituted a material change in circumstances to support a modification of the parent-time arrangements in the 2010 Order. The second issue is whether the district court erred by not conducting a best interest analysis when it modified the parent-time conditions of the 2010 Order. Both issues share the same standard of review. “We review a district court’s decisions regarding parent-time for an abuse of discretion.” Jones v. Jones, 2016 UT App 94, ¶ 8, 374 P.3d 45. “The district court’s proximity to the evidence places it in a better position than an appellate court to choose the best custody arrangement. Thus, we generally will not disturb the district court’s parent-time determination absent a showing that the district court has abused its discretion.” Stephens v. Stephens, 2018 UT App 196, ¶ 34, 437 P.3d 445 (cleaned up).
ANALYSIS
I. The Preclusion of Previously Disposed Arguments
¶9 With regard to the first issue, we note that the scope of our review of the district court’s post-remand ruling is limited by the mandate rule. “The mandate rule, a subset of the law of the case doctrine, binds both the district court and the parties to honor the mandate of the appellate court. Under this rule, the decisions of an appellate court become the law of the case and cannot be reconsidered on remand.” State v. Oliver, 2018 UT App 101, ¶ 29 n.8, 427 P.3d 495 (cleaned up); see also Thurston v. Box Elder County, 892 P.2d 1034, 1037 (Utah 1995) (“[T]he mandate rule[] dictates that pronouncements of an appellate court on legal issues in a case become the law of the case and must be followed in subsequent proceedings of that case.”). Furthermore, when this court disposes of an argument as inadequately briefed, “the law of the case doctrine precludes us from addressing this argument anew.” See NPEC LLC v. Miller, 2018 UT App 85, ¶ 9, 427 P.3d 357 (per curiam) (cleaned up).
¶10 Under the mandate rule, Father cannot re-litigate on remand issues we previously determined were inadequately briefed. But this is exactly what he does now. In this post-remand appeal, Father reintroduces a previously disposed issue by presenting two arguments in support of it.
¶11 First, he argues, “The district court abused its discretion when it used Mother’s inability to comply with the conditions [for unsupervised parent-time] in the initial Parent Time Order as a change in circumstances to justify modification of [Mother’s] parent time because those circumstances were not those upon which the earlier decision was based.” Next, Father argues, “[T]he district court abused its discretion in finding that [Mother’s] unwillingness to comply with a standing court order provided the basis for a change in circumstances sufficient to modify parent time as such rewards a noncompliant parent and incentivizes her to continue her noncompliant behavior.”
¶12 Similarly, in his previous appeal, Father argued, “The [district] court erred when it decided that [Mother’s] inability to comply with conditions for her unsupervised parent time constituted a material change in circumstances upon which to base a modification of a custody award.”[3] A panel of this court declined to address this issue because it was inadequately briefed. Blocker I, 2017 UT App 10, ¶ 18, 391 P.3d 1051.
¶13 Thus, in this post-remand appeal, Father raises essentially the same issue—namely, that the district court erred in concluding the unenforceability of the original parent-time conditions constituted a material change in circumstances—that he raised in his original appeal. But we have already declined to address this very issue in Father’s original appeal due to inadequate briefing. “In effect, [Father] now attempts to supplement the briefing submitted in his earlier appeal. The mandate rule bars such attempts.” See State v. MacNeill, 2016 UT App 177, ¶ 39, 380 P.3d 60. Therefore, we decline to reconsider this issue in Father’s post-remand appeal.
II. The Post-remand Judgment
¶14 The scope of the remand directed the district court to enter findings of fact showing that there had been a material change in circumstances necessary to support a change in the parent-time provisions. See Blocker I, 2017 UT App 10, ¶ 21, 391 P.3d 1051.
¶15 Modification of parent-time involves two separate steps. “First, the court must find that the petitioner has made some showing of change in circumstances that would support a modification of parent-time.” Stephens v. Stephens, 2018 UT App 196, ¶ 33, 437 P.3d 445 (cleaned up). “Second, the court must consider the changes in circumstance along with all other evidence relevant to the welfare or best interests of the child to determine de novo which custody arrangement will serve the welfare or best interest of the child, and modify, or refuse to modify, the decree accordingly.” Id. (cleaned up); see also Becker v. Becker, 694 P.2d 608, 611 (Utah 1984) (“[A] modification of visitation rights also requires a bifurcated procedure.”); Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982) (“A . . . two-step procedure should be followed where the petition to modify a custody decree requests a material change in visitation rights.”).
¶16 In the context of modifying parent-time, a material change of circumstances is a “different inquiry” from a material change regarding custody. Erickson v. Erickson, 2018 UT App 184, ¶ 16, 437 P.3d 370 (cleaned up). “When modifying parent-time, the petitioner is required to make only some showing of a change in circumstances, which does not rise to the same level as the substantial and material showing required when a district court alters custody.” Id. (cleaned up). Furthermore, in determining parent-time, “the [district] court gives highest priority to the welfare of the children over the desires of either parent. Such determinations are within the [district] court’s sound discretion.” Childs v. Childs, 967 P.2d 942, 946 n.2 (Utah Ct. App. 1998) (cleaned up).
¶17 Finally, “[t]he [district] court’s findings on remand must be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on [each] factual issue was reached.” Jensen v. Jensen, 2000 UT App 213U, para. 8 (cleaned up); accord Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221; Shuman v. Shuman, 2017 UT App 192, ¶ 5, 406 P.3d 258. “Put another way, findings are adequate when they contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.” Lay, 2018 UT App 137, ¶ 19 (cleaned up). “This obligation facilitates meaningful appellate review and ensures the parties are informed of the [district] court’s reasoning.” Shuman, 2017 UT App 192, ¶ 5. Furthermore, the Utah Code requires the court to “enter the reasons underlying its order for parent-time.” Utah Code Ann. § 30-3-34(3) (LexisNexis Supp. 2018).[4]
¶18 Thus, on remand, the district court in this case had two tasks. First, it was to enter findings of fact to support its ruling modifying parent-time. Second, based on those findings, the district court needed to explain the process by which it concluded that eliminating supervised parent-time was in the best interest of Child. The district court completed both tasks in its post-remand decision.
¶19 First, the district court identified changed circumstances that supported its decision to modify parent-time. See supra ¶ 5. Most notable among these is that Mother and Child had received substantial therapy at the time of the modification, there had been no problems reported during Mother’s supervised parent-time, and Child was older and had grown in maturity. The 2010 Order stated that supervised parent-time was to continue “until such time that [Mother] demonstrates that she has changed her mind set with regard to her own parenting abilities and [Father’s] relationship with [Child].” Mother’s reception of therapy and the absence of reported problems are changed circumstances relative to the condition (that is, Mother’s uncooperative mind-set) that originally gave rise to the imposition of supervised parent-time. The court also noted that modification was necessary because the conditions (namely, the prohibitive costs associated with supervised parent-time, the unavailability of a joint therapist, and the demise of the original supervising agency) originally imposed for Mother’s unsupervised exercise of parent-time had so substantially changed as to make the 2010 Order unenforceable. By highlighting these changed circumstances, the district court made “some showing of a change in circumstances” necessary to modify parent-time. See Erickson, 2018 UT App 184, ¶ 16 (cleaned up).
¶20 Second, the district court explained the process by which it concluded a modification in parent-time was needed to serve Child’s best interest. Given the unenforceability of the 2010 Order, the court noted that Uncle had been supervising Mother’s parent-time for a few months as of April 2014. Mother had exercised this parent-time without incident. The court also noted that, given the parties’ desire “to reasonably accommodate a relationship” between Child and Mother, “curbside parent time . . . was not in the best interest of [Child]” because “[Child] needed a more reasonable and less artificial opportunity to know his [Mother] and her family.” Thus, the court allowed Uncle to continue to supervise Mother’s parent-time on a temporary basis. And at the same time, the court ordered a home study. The case was set for further review after completion of the home study and continuation of parent-time supervised by Uncle. Four months later, after receiving the home study and hearing that supervised parent-time had been “successful and without incident,” the district court granted Mother unsupervised parent-time on a temporary basis. About a year later, the court determined that Mother had exercised unsupervised, statutory parent-time without incident, and it permanently granted her unsupervised parent-time. The court explained that granting Mother unsupervised parent-time was in Child’s best interest because “it would most effectively foster a continuing relationship” between Child and Mother.
¶21 “[District] courts have particularly broad discretion in ordering parent-time, and we will only intervene when the [district] court’s action is so flagrantly unjust as to constitute an abuse of discretion.” Jones v. Jones, 2016 UT App 94, ¶ 13, 374 P.3d 45 (cleaned up). “The best interests of a minor child are promoted by having the child respect and love both parents, which includes fostering a child’s relationship with the noncustodial parent.” Hanson v. Hanson, 2009 UT App 365, ¶ 3, 223 P.3d 456 (cleaned up); see also Jones, 2016 UT App 94, ¶ 14 (“The paramount concern in [parent-time] matters is the child’s welfare or best interest. Fostering a child’s relationship with the noncustodial parent has an important bearing on the child’s best interest.” (cleaned up)). Thus, the district court acted well within its broad discretion when it found that modifying Mother’s parent-time from supervised to unsupervised status was in Child’s best interest as the most effective means to “foster a continuing relationship” between Mother and Child.
CONCLUSION
¶22 We conclude that, upon remand, the district court properly entered findings of fact that were sufficiently detailed to identify the steps it took to modify Mother’s parent-time. We further conclude that the district court did not abuse its discretion in reaching the conclusion that unsupervised parent-time was in Child’s best interest.
¶23 Affirmed.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] The facts of this case are set out in further detail in the original appeal. See Blocker I, 2017 UT App 10, ¶¶ 2–7, 391 P.3d 1051.
[2] The district court had ordered and received a home study to determine if Mother was competent to have unsupervised parent-time with Child.
[3] The order of the district court giving rise to the original appeal was entitled “Order Modifying Custody.” In fact, that order modified only parent-time and did not disturb the underlying custody arrangement. Father repeated this error when, in the original appeal, he imprecisely referred to a “modification of custody” when he was actually arguing that the court erred in modifying parent-time.
[4] Because the statutory provision in effect at the relevant time does not differ in any material way from that now in effect, we cite the current version of the Utah Code.
CAMERON MICHAEL COX,
Appellee,
v.
PAIGE CHARISSA HEFLEY,
Appellant.
Opinion
No. 20170903-CA
Filed April 18, 2019
Second District Court, Ogden Department
The Honorable W. Brent West
No. 134901221
David Pedrazas, Attorney for Appellant
Lauren Forsyth and Kristopher K. Greenwood,
Attorneys for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.
APPLEBY, Judge:
¶1 Paige Charissa Hefley appeals the district court’s order on competing petitions filed by Hefley and her former spouse, Cameron Michael Cox, to modify their divorce decree. She argues that the court erred by enforcing their stipulation (the Stipulated Decree). We affirm.
BACKGROUND
¶2 Cox and Hefley divorced in February 2014. The original divorce decree awarded Cox primary physical custody of their two minor children subject to Hefley’s “reasonable parent-time.” In a separate December 2015 case, Hefley was deemed a “vexatious litigant”[1] and ordered “to obtain legal counsel before filing any future claim for relief, and to furnish security to assure payment of any opposing party’s reasonable expenses” (the Vexatious Litigant Order).
¶3 In January 2015, Hefley petitioned the district court to modify custody and parent-time. Cox counter petitioned, also requesting modifications to custody and parent-time. After more than two years of litigation on their competing petitions, Cox and Hefley signed the Stipulated Decree, which represented “a full and final agreement regarding all pending issues.” It stated, “Both parties . . . stipulate to be fully bound by the following terms and conditions.”
¶4 The Stipulated Decree “entitled [Hefley] to parent-time as the parties may agree in writing.” But absent such agreement, Hefley would receive three days of unsupervised parent-time on alternating weeks. Hefley’s unsupervised parent-time was conditioned on her complying with the following terms: (1) “submit to a comprehensive psychological evaluation by a qualified licensed psychologist” and obtain a “diagnosis, a therapy/treatment plan, and a medication plan”; (2) “initiate, maintain and successfully complete all treatment recommendations, medication recommendations, and related items”; (3) not have “any criminal charges, suicide attempts, or mental health hospitalizations”; (4) “not have any illegal and/or un-prescribed drugs or medications in her home, nor allow the children to be in the presence of any person who is under the influence of any illegal drugs or un-prescribed medications”; and (5) not “permit the children to be around domestic violence.”
¶5 Cox and Hefley agreed to hire “a different licensed psychologist . . . to act as a third party neutral and mental health professional . . . to work with the parties to ensure that [Helfey] [was] following the court’s orders.” The Stipulated Decree required that the third party neutral have access to Hefley’s medical records and be allowed to meet with the “parties’ minor children and any other relevant party in this action, when necessary.” If Hefley failed to comply with the terms of the Stipulated Decree, the parties agreed that supervised parent-time would “be imposed until all appropriate treatment is recommended, complied with, completed, and the third party neutral has no safety concerns for the minor children.” The Stipulated Decree also provided, “If the parties do not comply with these terms, the third party neutral may make further restrictions to parent-time arrangements as deemed necessary.” Hefley agreed that she “shall not file any type of petition to modify in this case until she has successfully completed the terms and conditions stated herein, and complies with the [Vexatious Litigant Order].”
¶6 About one month after Hefley signed the Stipulated Decree, Cox filed it with the district court. The next day, Hefley filed an “objection to entry of modified decree of divorce” and “motion to strike [the Stipulated Decree].” Hefley asserted that her attorney was not aware of and had not approved the Stipulated Decree until after she signed it, and claimed Cox’s attorney “purposely went around [her attorney] and/or completely failed to seek his approval . . . prior to submitting the [Stipulated Decree] before the court.” Further, Hefley argued that the “terms of the [Stipulated Decree] are completely contrary to Utah law.” Specifically, she claimed the Stipulated Decree “transfer[s] the court’s judicial authority to a nonqualified individual to make legal rulings without being subjected to review by [the] court” and “unreasonably restricts [Hefley] from filing any petition to modify if it is in the best interest of the children.”
¶7 On September 26, 2017, the district court held a telephone conference at which it denied Hefley’s motion to strike the Stipulated Decree, overruled her objection to entry of the Stipulated Decree, and said it would sign the Stipulated Decree as it had been submitted. The court also instructed Cox’s attorney to “prepare an order.” On the same day of the telephone conference, the court signed and entered the Stipulated Decree.
¶8 On October 18, 2017, the district court signed and entered a proposed order on the telephone conference. It provided: (1) “[Hefley’s] objection to the entry of the [Stipulated Decree] is overruled”; (2) “[Hefley’s] motion to set aside the [Stipulated Decree] is denied”; and (3) “the court approved the stipulation of the parties and will sign the order on the [Stipulated Decree] as it has been submitted.”
¶9 Hefley filed a notice of appeal on November 8, 2017, giving notice of her appeal of the order on the telephone conference and the Stipulated Decree.
ISSUES AND STANDARDS OF REVIEW
¶10 First, Cox argues that this court lacks jurisdiction because Hefley’s “notice of appeal on the modified decree of divorce was untimely.” “An appellate court’s determination of whether it has jurisdiction to hear an appeal is a question of law.” Hall v. Hall, 2013 UT App 280, ¶ 6, 316 P.3d 970 (quotation simplified). “We address this argument first because a determination that the appeal is untimely would be dispositive.” Id.
¶11 Second, Hefley argues that the district court erred in denying her motion to strike the Stipulated Decree because her attorney did not receive or review it until after she signed it. “[A] district court’s decision to enforce a stipulation is reviewed for an abuse of discretion.” Prinsburg State Bank v. Abundo, 2012 UT 94, ¶ 10, 296 P.3d 709.
¶12 Third, Hefley argues that the court erred in entering the Stipulated Decree because its provisions are “contrary to Utah law.” “Although this court generally reviews the determination to modify a divorce decree for an abuse of discretion, insofar as that determination is based on a conclusion of law, we review it for correctness.” Id. (quotation simplified).
ANALYSIS
Timeliness of Appeal
¶13 Cox argues that this court lacks jurisdiction because Hefley’s notice of appeal was not timely filed. We disagree.
¶14 “An appeal may be taken from . . . all final orders and judgments . . . by filing a notice of appeal . . . .” Utah R. App. P. 3(a). Under the Utah Rules of Appellate Procedure, the notice of appeal “shall be filed with the clerk of the [district] court within 30 days after the date of entry of the judgment or order appealed from.” Id. R. 4(a). “If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal.” Hall v. Hall, 2013 UT App 280, ¶ 6, 316 P.3d 970 (quotation simplified).
¶15 The timeliness of Hefley’s notice of appeal turns on when the district court entered a final and appealable order in this case. Cox argues that the final order was the Stipulated Decree, which was entered on September 26, 2017. Hefley disagrees, arguing that the final order was the order on the telephone conference, which was entered on October 18, 2017. Hefley filed her notice of appeal on November 8, 2017—more than thirty days after the Stipulated Decree was entered, but less than thirty days after the order on the telephone conference was entered.
¶16 “For an order or judgment to be final, it must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case.” Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649 (quotation simplified). That is, “a judgment is final when it ends the controversy between the parties.” Id. (quotation simplified). “[W]here further action is contemplated by the express language of [an] order, it cannot be a final determination susceptible of enforcement.” State v. Leatherbury, 2003 UT 2, ¶ 9, 65 P.3d 1180.
¶17 At the telephone conference, the district court overruled Hefley’s objection to entry of the Stipulated Decree, denied her motion to strike the Stipulated Decree, and said it would sign the Stipulated Decree as it had been submitted. But at that time, the court also instructed Cox’s counsel to prepare a separate order reflecting its decisions. Thus, although the court signed and entered the Stipulated Decree on September 26, “further action [was] contemplated” by the court because it had instructed Cox’s counsel to prepare a separate order. See id. (determining that a “signed minute entry” was not a final order when it required counsel to “prepare Findings of Fact and Conclusions of Law” (quotation simplified)); see also Utah R. Civ. P. 58A(e)(1) (“If a separate document is not required, a judgement is complete and is entered when it is signed by the judge and recorded in the docket.” (emphasis added)). For that reason, we conclude that the thirty day period to file a notice of appeal did not begin to run when the district court signed and entered the Stipulated Decree.
¶18 Instead, the thirty day period began to run when the court entered the order on the telephone conference. That order disposed of the case and ended the controversy between the parties. See Bradbury, 2000 UT 50, ¶ 9. And because the notice of appeal was filed within thirty days after the court entered the order on the telephone conference, this court has jurisdiction to hear Hefley’s appeal.
The Motion to Strike
¶19 Hefley argues that the district court erred in denying her motion to strike the Stipulated Decree. We disagree.
¶20 To start, we reject Hefley’s claim that the Stipulated Decree “should have been stricken” because it “was never signed by an attorney of record.” The Stipulated Decree is simply an agreement to settle the parties’ dispute. See Klein v. Klein, 544 P.2d 472, 476 (Utah 1975) (explaining that when parties enter “a stipulation pertaining to matters of divorce [and] custody,” “the same rules apply to binding [them] to such an agreement as apply to any other agreement”). District courts have “the power to enter a judgment enforcing a settlement agreement if it is an enforceable contract.” Goodmansen v. Liberty Vending Sys., Inc., 866 P.2d 581, 584 (Utah Ct. App. 1993).
¶21 Hefley does not dispute that she understood and voluntarily agreed to the Stipulated Decree. See Klein, 544 P.2d at 476 (affirming a district court’s decision to enter the parties’ stipulation when the district court “was not convinced that the plaintiff did not understand and voluntarily agree to the stipulation”).[2] Contrary to her assertions, litigants may enter a stipulation or settlement agreement without first obtaining the consent of—or even consulting—their attorneys. See John Deere Co. v. A & H Equip., Inc., 876 P.2d 880, 887 (Utah Ct. App. 1994) (determining that a settlement agreement “was enforceable despite the fact that it had not been reduced to writing [or] signed by the parties,” “nor did the attorneys of record sign and submit to the court a written stipulation”). Thus, we reject Hefley’s claim that the district court should have rejected the Stipulated Decree because it was not signed by the parties’ attorneys.
¶22 Next, Hefley asserts that Cox’s attorney acted “inappropriately” and in violation of the Utah Rules of Professional Conduct. This argument is equally unavailing. As this court has previously explained, “[w]hile compliance with the Utah Standards of Professionalism and Civility is encouraged of all attorneys, an attorney’s failure to comply is not grounds for setting aside a judgment.” Aghdasi v. Saberin, 2015 UT App 73, ¶ 9, 347 P.3d 427. We stop well short of determining that Cox’s attorney violated any professional rule. But even if we were to accept Hefley’s assertion that Cox’s attorney “violate[d] the Utah Rules of Professional Conduct,” that conclusion, by itself, would not require reversal in this case. See id.
¶23 In short, we affirm the district court’s decision to deny Hefley’s motion to strike the Stipulated Decree.
III. The Terms of the Stipulated Decree
¶24 Hefley argues that the district court erred in entering the Stipulated Decree because its terms are contrary to Utah law. First, she contends that the Stipulated Decree authorizes the third party neutral to “restrict [her] parent-time and custody . . . based upon arbitrary and capricious decisions that are unreviewable by the court.” Second, she claims the Stipulated Decree “unreasonably restricts [her] from filing a petition to modify in this matter.”[3] As explained below, we reject both of these arguments.
The Third Party Neutral
¶25 Hefley argues that the Stipulated Decree “transfer[s] the court’s judicial authority to a nonqualified individual to make legal rulings without being subjected to review by the court.” We disagree.
¶26 Although “[t]he variety of agreements that disputing parties may reach is so vast as to defy cataloging them,” In re E.H., 2006 UT 36, ¶ 20, 137 P.3d 809, “there are certain agreements that so compromise the core responsibilities of the court that they cannot be honored,” id. ¶ 21. For example, parties may not enter an agreement that strips “the district court of its statutory charge to ensure that any custody arrangement or change of custody serves the child’s best interest.” R.B. v. L.B., 2014 UT App 270, ¶ 16, 339 P.3d 137.
¶27 Contrary to Hefley’s assertions, the Stipulated Decree does not allow the third party neutral to make legal rulings free of the district court’s review. In fact, it provides that the third party neutral cannot “make court orders.” As Cox asserts in his brief, “the third party is not . . . appointed to render an award or to resolve the case, but is there to make sure the parties comply with what they agreed to.”
¶28 The district court approved Cox and Hefley’s agreement to condition Hefley’s unsupervised parent-time on her compliance with various terms. Essentially, the parties stipulated—and the court agreed—that, if certain conditions were not satisfied, then supervised parent-time would be appropriate. See Utah Code Ann. § 30-3-34.5 (LexisNexis Supp. 2018) (establishing that “a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse . . . if left unsupervised with the non-custodial parent”). The purpose of the third party neutral is “to act as a buffer between [Cox and Hefley] . . . so that [they] do not need to pry into the personal records of the other” and “to make sure [they] are completing and in compliance with the terms of [the Stipulated Decree].”
¶29 There is nothing wrong with this arrangement. The parties entered the Stipulated Decree to settle their dispute and advance the best interest of their children. We agree with Cox that he and Hefley were free to agree on a parent-time plan that “would work for them.” See In re E.H., 2006 UT 36, ¶ 20 (noting that “the law favors the settlement of disputes”); see also Utah Code Ann. § 30-3-33(1) (“Parent-time schedules mutually agreed upon by both parents are preferable to a court-imposed solution.”). “[P]arties may plan for contingencies and develop mechanisms to assess a child’s best interest outside of the court system.” R.B., 2014 UT App 270, ¶ 16.
¶30 Further, we disagree with Hefley’s claim that the third party neutral’s decisions regarding parent-time “are unreviewable by the court.” The Stipulated Decree does not intrude on the court’s “continuing jurisdiction to make subsequent changes or new orders . . . as is reasonable and necessary.” Utah Code Ann. § 30-3-5(3). “[T]his court has previously explained that where the parties’ stipulation is accepted by the [district] court and incorporated into its divorce order, the subject matter of the stipulation is within the continuing jurisdiction of the court.” Sill v. Sill, 2007 UT App 173, ¶ 11, 164 P.3d 415 (quotation simplified). And “even when the parties in a custody dispute agree to be bound by an evaluator’s findings, the district court retains the ultimate authority to preside over the proceedings, to satisfy itself that the evaluator’s recommendations were properly arrived at, and to enter a final order.” R.B., 2014 UT App 270, ¶ 14 (quotation simplified).
¶31 Here, by approving the Stipulated Decree, the court “merely agreed to follow a process for the determination of the best interests of [the children] and to uphold this process so long as it adequately served that end.” In re E.H., 2006 UT 36, ¶ 21. Indeed, Cox acknowledges that each party may file objections and motions, request relief from the court, and seek judicial review of any action taken by the third party neutral. Hefley gives us no reason to conclude otherwise. Thus, we reject her argument that the Stipulated Decree allows the third party neutral “to make legal rulings without being subjected to review by the court.”
Petitions to Modify
¶32 Hefley argues that the Stipulated Decree “unreasonably restricts [her] from filing any petition to modify in this matter.” Specifically, she claims “it prevents the court from ever addressing the best interest of the children or change in circumstances, even in the case of abuse and/or neglect.” We also reject this argument.
¶33 “[P]arties cannot stipulate away the district court’s statutory responsibility to conduct a best-interest analysis . . . to ensure that any custody arrangement . . . serves the child’s best interest.” R.B. v. L.B., 2014 UT App 270, ¶ 16, 339 P.3d 137; see also Sill v. Sill, 2007 UT App 173, ¶ 9, 164 P.3d 415 (determining that a “non-modification provision did not divest the court of its continuing jurisdiction” to consider a petition to modify alimony).
¶34 Here, the relevant language provides that Hefley “shall not file any type of petition to modify in this case until she has successfully completed the terms and conditions stated herein, and complies with the [Vexatious Litigant Order].” On appeal, Cox argues that this provision does not prevent Hefley from filing a petition to modify the Stipulated Decree. Instead, he asserts it requires only that Hefley comply with the Vexatious Litigant Order before filing such a petition. We agree with Cox that Hefley would be required to comply with the Vexatious Litigant Order “regardless of it being in the [Stipulated Decree].”
¶35 By statute, the district court “has continuing jurisdiction to make subsequent changes or new orders for the custody of a child and the child’s support . . . as is reasonable and necessary.” Utah Code Ann. § 30-3-5(3) (LexisNexis Supp. 2018). Thus, although Hefley must comply with the Vexatious Litigant Order, she may petition to modify the Stipulated Decree if “there have been changes in the circumstances upon which the previous award was based that are sufficiently substantial and material to justify reopening the question.” See Blocker v. Blocker, 2017 UT App 10, ¶ 11, 391 P.3d 1051 (quotation simplified).
¶36 In sum, we conclude that the terms of the Stipulated Decree are not contrary to Utah law.
CONCLUSION
¶37 This court has jurisdiction over Hefley’s appeal. The district court did not err in denying Hefley’s motion to strike the Stipulated Decree, and the terms of the Stipulated Decree are not contrary to Utah law. Accordingly, we affirm.
[1] Under rule 83 of the Utah Rules of Civil Procedure, “[a] court may find a person to be a vexatious litigant if the person, without legal representation, undertakes any of four types of vexatious conduct described in the rule, such as repeatedly filing nonmeritorious claims.” Strand v. Nupetco Assocs. LLC, 2017 UT App 55, ¶ 6, 397 P.3d 724; see also Utah R. Civ. P. 83(a). Further, “[r]ule 83 authorizes a court to impose restrictive orders . . . to curb the litigant’s vexatious conduct.” Strand, 2017 UT App 55, ¶ 5; see also Utah R. Civ. P. 83(b).
[2] Hefley asserts that her failure to consult counsel before signing the Stipulated Decree is particularly “distressing” because Cox had previously claimed that she “is mentally unstable.” We decline to address this issue because Hefley has not preserved it for appeal. See Sandusky v. Sandusky, 2018 UT App 34, ¶ 37, 417 P.3d 634 (“An issue is preserved for appeal only if it was presented to the [district] court in such a way that [the court] had an opportunity to rule on it.” (quotation simplified)). Hefley never suggested to the district court that mental instability prevented her from understanding or voluntarily entering the Stipulated Decree.
[3] 3. Hefley also argues that the Stipulated Decree “does not follow the Uniform Deployed Parents Custody, Parent Time, and Visitation Act.” See Utah Code Ann. §§ 78B-20-101 to -503 (LexisNexis 2018). But she has failed “to explain, with reasoned analysis supported by citations to legal authority and the record,” why she should prevail on this claim on appeal. Chaparro v. Torero, 2018 UT App 181, ¶ 32, 436 P.3d 339 (quotation simplified). Because this argument has been inadequately briefed, we do not address it further. See id.
How can I convey to the judge how damaging it would be for my 3-year-old to have unsupervised visits with her father? He’s delusional: says he killed about 400 people for pay, connected to underground crime. I am terrified for her to spend time with him.
The “academic answer” is as follows:
Find out what the statutory and/or the case law requirements are for seeking and obtaining an order that visitation be supervised;
neatly compile and clearly and concisely present to the court all of the facts and evidence (police reports, arrest and conviction records, mental health records, etc.) that supports your assertion that you meet the statutory and/or the case law requirements for seeking and obtaining an order that visitation be supervised;
ask the court to impose supervised visitation accordingly;
propose what kind and level of supervision you wish to see imposed and clearly and persuasively explain 1) why it is necessary that that kind and level of supervision be imposed; and 2) why your proposal is eminently feasible and equitable.
The “real world” answer is as follows:
Take every step identified in the “academic answer” above;
Be prepared for the court to be inattentive and to take your assertions with a grain of salt, no matter how objectively verifiable and compelling and well-presented your evidence may be (in fairness to the courts, judges are barraged with allegations of “the other parent is crazy!” or ““the other parent is dangerous!,” and many of these allegations are either lies or uncorroborated, so judges become hyper-skeptical to the point that they have difficulty accepting even compelling evidence);
end up with either no supervised visitation or visitation that is inadequately supervised because the court tried to “split the baby in half” and issue an order that satisfies everyone or disappoints everyone.
Bottom line:
The odds are against you, generally.
If it isn’t close, [the opposition] can’t cheat, and the referee [i.e., the judge] can’t deny you. You have to be prepared to win overwhelmingly, six ways from Sunday, if you hope to get what you want.
Do not lie in an effort to gain an advantage (Matthew 16:26).
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