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Tag: § 30-3-35

Nebeker v. Orton – 2019 UT App 23 – child custody and parent-time

Nebeker v. Orton – 2019 UT App 23
THE UTAH COURT OF APPEALS

SHANE NEBEKER, Appellant,
v.
TRISHA ANN ORTON, Appellee.

Opinion No. 20170438-CA
Filed February 14, 2019

Sixth District Court, Richfield Department
The Honorable Marvin D. Bagley
No. 154600140

Jared L. Peterson, Attorney for Appellant
Benjamin Kearns, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in whichJUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1        Shane Nebeker (Father) and Trisha Ann Orton’s (Mother) extramarital relationship resulted in the birth of a son (Child). For the first eighteen months of Child’s life, Father saw him only a few times. Then, concerned about Mother’s illegal activities, Father took Child away from Mother without her consent. Sometime thereafter, Father and Mother worked out an extrajudicial, temporary custody arrangement that they perpetuated until a custody trial. After a bench trial, Mother was awarded primary physical custody of Child, and Father was awarded statutory minimum parent-time. Father appeals. We affirm in part—affirming the district court’s decision regarding primary custody—and reverse in part—reversing the district court’s decision related to Father’s parent-time.

BACKGROUND[1]

¶2        Father and Mother are parents of Child, born in December 2013. Mother and Father ended their relationship before Child was born, and they lived about 100 miles apart. During the first eighteen months of Child’s life, Father saw Child on two occasions shortly after his birth. Mother stated that Father “was more than welcome to come down any time he wanted to” visit Child, but Father repeatedly told Mother, “I refuse to have anything to do with you to see my child.” Mother did not allow Father to remove Child from her supervision because (1) Child was nursing and (2) Mother felt Child needed “to get to know” Father before he took him for a visit. Father admitted Mother told him he could visit Child at her residence, but Father said it would have been “uncomfortable” because there were “still feelings.”[2]

¶3        Father did not provide financial support to Child or Mother during the first eighteen months of Child’s life. The Office of Recovery Services opened a case, and the matter came before the district court in early May 2015, where Father’s support obligation was determined.

¶4        In late May 2015, Mother allowed Father to visit Child. Mother’s daughter (Daughter) picked up Child and took him to meet Father at a nearby restaurant. Daughter allowed Father to take Child for a few minutes to buy a toy. But Father then sent Daughter a text message informing her that he was not returning Child. Father characterized this action as “rescuing” Child from the dangerous situation created by Mother’s drug use. Father took Child to his house. Mother stated that the day Father took Child was the “darkest day of [her] life” and admitted that she “wasn’t probably in the best place in [her] life.” For the first week after Father took Child, Father allowed Mother to call and read Child a bedtime story, but after that week Father refused to answer the phone, and Mother “was not allowed to see [Child] for six months.” Mother did not report Father’s taking of Child to the police or any other authority.

¶5        Mother realized that she was “never going to get [her] baby back” unless she “got clean.” She testified that she “found a new way of life” in a treatment center and “never touched [drugs] again.”

¶6        In October 2015, Father filed a parentage petition in which he sought sole custody of Child and child support from Mother. Around January 2016, Mother and Father “agreed” to an ongoing extrajudicial temporary custody arrangement under which Child stayed ten out of every twenty-eight days with Mother and the balance of the days with Father.[3] Mother said that she felt “bullied” into accepting the temporary arrangement. Father stated that Child did well under the arrangement.

¶7        Ultimately, a two-day bench trial was held in October and November 2016. The district court made the following findings of fact: (1) Mother and Father began a relationship when they were teenagers; (2) each had been married or in relationships with other persons; (3) each had other children from prior marriages or relationships; (4) each had a history of using illegal drugs and violating the law; (5) Father was married and Mother was single at the time of trial; (6) Child had his own bed and bedroom in Father’s house; (7) Child had his own bed in Mother’s room at Mother’s house; (8) Father and Mother resided approximately 105 miles apart and had no plans to move closer to each other; (9) Mother had a good support system where she lived and believed she could avoid adverse influences she might encounter elsewhere; (10) Mother and Father each had family members to provide support and a positive influence on Child;

(11)      Father’s employment required him to be away from home for fourteen hours per day during scheduled work periods;

(12)      Mother worked six-and-one-half hours daily, Monday through Thursday; (13) Child had been residing with both parents pursuant to an informal, temporary parent-time schedule; (14) Child was well-adjusted and doing well under the informal agreement. The district court also found:

Both parties acknowledged past deficiencies in their parenting abilities. In essence both parties have had periods in their [lives] when they have been less than fit parents. However, at the present time both parties contribute financially to the welfare of [Child]; and both parties spend appropriate time with, and provide appropriate emotional support to [Child]. Essentially, both parents are fit parents. Both are very bonded with [Child].

¶8        In its analysis, the district court acknowledged that both parties had a history of drug problems, criminal activities, and extramarital sexual relations. “While Father cleaned his life up sooner than Mother, there is insufficient evidence for [the district court] to make a decision as to whether one of the parties’ past conduct was better or worse than the other.” Indeed, Father admitted having a history of criminal activity, including “a couple DUIs,” methamphetamine and marijuana use with Mother, and being incarcerated more than three times. Mother likewise admitted that she had a history of drug use and selling drugs, but she had been “over a year clean” at the time of the trial. Thus, the district court determined that “evidence relating to past conduct and moral standards is equally balanced between the parties.“

¶9        In determining which parent should have primary physical care of Child, the district court highlighted four factors. First, in analyzing which party was most likely to allow “frequent and continuing contact with the other parent,” the district court noted that the facts did not weigh in Father’s favor, particularly because Father “surreptitiously” and “underhandedly” took Child and did not allow Mother to contact Child for a significant period. At the same time, the court acknowledged that taking Child motivated Mother’s recovery from drug use. The district court found the evidence supported the conclusion that Child was “doing very well” in the care of both parents and that both parties were cooperating in providing the other “meaningful parent time.”

¶10 Second, the district court determined that Child had a greater bond with Mother:

While [Child] has recently spent considerable periods of time with Father, [Child] has overall lived more with Mother than Father. Prior to the time Father became concerned enough with Mother’s drug use that he took self-help action, Father was content to allow [Child] to live primarily with Mother. The [district court] considers such action (or non-action) on the part of Father to be a tacit acknowledgement that the best interests of [Child] were being best served by [Child] living primarily with Mother.

Thus, the district court determined that Mother had been the primary caregiver for Child.

¶11      Third, “Mother’s work schedule is also more conducive to her having primary physical care of [Child].” The court reasoned that Mother could “devote more time to [Child’s] needs than Father” because she “works fewer hours, travels less time to and from work, and has a more consistent work schedule than Father.”

¶12      Fourth, the court cited the distance separating the parties as a motivating factor in its determination. “If the parties were living in the same community, or within a reasonably close distance from each other, the [district court] would likely have found a joint physical custody arrangement to be in [Child’s] best interests.” Indeed, both parties acknowledged at trial that once Child begins school, one parent must necessarily have primary custody. As Father noted, “Obviously when school starts, I think that’s why we’re here today. . . . I don’t think we could possibly do a two week on or a one week on schedule when he’s going to school.”

¶13 Having weighed these factors, the court determined that it was in Child’s best interests to award the parties joint legal custody, with Mother having primary physical custody. The district court further specified that “Father be allowed to exercise liberal and meaningful parent time with [Child]. At a minimum Father should be entitled to the aggregate amount of parent time provided by Utah Code Ann. § 30-3-35; with adjustments being made to that schedule to ensure Father’s parent time is exercised, as much as is reasonably possible, at times Father is off work.” Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 The first issue is whether the district court’s factual findings were properly supported by the evidence. “A challenge to the sufficiency of the evidence concerns the [district] court’s findings of fact. Those findings will not be disturbed unless they are clearly erroneous.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (cleaned up). And a “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.” Id. (cleaned up).

¶15      The second issue is whether the district court erred when it departed from the informal custody arrangement and awarded primary physical custody to Mother and only the statutory minimum parent-time to Father. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (cleaned up). We will not disturb the district court’s judgment “unless we determine the [district] court has exceeded the scope of permitted discretion or has acted contrary to law.” Davis v. Davis, 2001 UT App 225, ¶ 6, 29 P.3d 676 (cleaned up). Further, “[i]t has long been the law in this state that conclusions of law must be predicated upon and find support in the findings of fact and that the judgment or decree must follow the conclusions of law.” Gillmor v. Wright, 850 P.2d 431, 436 (Utah 1993).

ANALYSIS

I. The Evidence Supported the District Court’s Factual Findings

¶16 Father’s first argument is that the evidence does not support the court’s factual findings. 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 (cleaned up). But “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 (cleaned up). Rather, “to successfully challenge a [district] court’s factual finding 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 (cleaned up). “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. Thus, “a party challenging a factual finding or sufficiency of the evidence to support a verdict will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal.” State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645.

¶17 Here, Father has not addressed many of the district “court’s findings and makes no attempt to marshal the evidence in support of them. He clearly views the evidence as compelling a different outcome, but it is not within our purview to engage in a reweighing of the evidence, and [Father] has not demonstrated that the evidence underlying the [district] court’s findings is insufficient.” See Shuman v. Shuman, 2017 UT App 192, ¶ 9, 406 P.3d 258 (cleaned up). We illustrate a portion of the absence of marshaling as follows.

A. Child’s Best Interests

¶18 Father disagrees that Mother is more likely than he is to act in Child’s best interests. The court found that Father “underhandedly” and “surreptitiously” took Child and “kept Child from Mother for some time.” Father responded that he allowed phone contact between Mother and Child, and noted that Mother never filed a police report against him after he took Child, implying that she tacitly supported Father’s decision to take Child. But Father fails to address why Mother would have been reluctant to call police. Mother had warrants out for her arrest. If she had filed a report, she likely would have lost custody of Child because she would have been arrested. By taking Child and withholding him from Mother, Father placed Mother in a no-win situation.

¶19 In contrast to Father’s actions, the record indicates that Mother was willing to let Father visit Child. Shortly after Child was born and before paternity had been established, Mother allowed Father to visit Child. Father admitted that Mother told him he could come visit Child at her parents’ house, but Father declined because there were “still feelings” and he was “uncomfortable” with such an arrangement. After paternity was established and Father agreed to pay child support, Mother allowed him to spend time with Child at a restaurant—a decision that led to her losing physical possession of Child. Furthermore, unlike Father, Mother never attempted to regain exclusive possession of Child through surreptitious means.

¶20      The district court also found that Father’s “non-action” in allowing Child to remain with Mother for the first eighteen months of his life was a “tacit acknowledgment” that Child’s best interests were served by remaining primarily with Mother. The court also noted that, although there was some dispute in the evidence at trial, Father told Mother shortly after taking Child that this arrangement was temporary and “she would get [Child] back after she cleaned up her drug use.”

¶21 From this evidence the court concluded that “the parties have recognized it is in the best interest of [Child] that [Mother] continue” to be his primary caregiver. As we noted in Shuman, Father “views the evidence as compelling a different outcome”— that his efforts to gain custody of Child demonstrate he was not content with allowing Child to live primarily with Mother—“but it is not within our purview to engage in a reweighing of the evidence.” 2017 UT App 192, ¶ 9 (cleaned up). Thus, the district court’s determination that Child’s best interests were served by awarding Mother primary custody was sufficiently supported by the evidence and was not clearly erroneous.[4]

B. Primary Caretaker Assessment

¶22 Father next argues that the district court’s finding that Mother was the primary caretaker for the majority of Child’s life is “contrary to the law and evidence.” But Child lived exclusively with Mother for the first eighteen months of his life. In contrast, the parties shared custody from January 2016 until trial in late 2016. Father had sole custody for only about seven months— from May 2015 when he took child until January 2016 when the parties agreed to a temporary custody arrangement.

¶23 Father responds that “[i]t is not who the child has lived with the majority of his life, but who the child has lived with once a party initiates legal action.” Father cites Davis v. Davis, 749 P.2d 647 (Utah 1988), in support of this proposition. We find Father’s reading of Davis selective and inaccurate. In Davis, the parties in a divorce proceeding agreed that the father would have custody of a minor child so the child could stay in the family home. Id. at 648. About one month later, the divorce decree was set aside on the grounds that the mother was emotionally unstable at the time of the original proceeding and did not realize the consequences of her actions. Id. In the renewed divorce proceedings, the court awarded custody of the child to the father. Id. Our supreme court upheld the decision, noting that the father had been the child’s “primary caregiver for over a year and had provided a very stable environment.” Id. From this holding, Father argues that because he had primary custody of Child during the pendency of this matter, “[t]he District Court erred in disregarding this information in favor of the care provided by [Mother].”

¶24 As Mother points out in her brief, this “position is contrary to Utah law and basic logic.” Such an approach might require a court to award primary caretaker status to the parent who filed for custody after only recently gaining possession of a child over the interests of the parent who had a previous, but much longer, possession. Father’s position is also contrary to Davis. Directly following the statement that the current custody arrangement should be given special weight, the Davis court warned, “Of course, if the primary caregiver gained that status wrongfully, courts should be careful not to reward such conduct by giving the wrongdoer a consequential advantage in evaluating the custody question.” Id. at 648–49. We find Father’s reliance on Davis misplaced precisely because, as the district court noted, he gained primary caregiver status wrongfully when he “surreptitiously” and “underhandedly” took possession of Child through “self-help.” Therefore, the district court’s finding was not clearly erroneous.

C. Work Schedule Analysis

¶25 Father also challenges the district court’s finding that Mother’s work schedule was more conducive to her having primary physical custody. Father argues that the district court’s decision “[e]ssentially . . . came down to its finding that [Mother’s] work schedule, a schedule where she worked more days, but fewer hours in a two-week period than [Father] served [Child’s] best interest.” Father’s characterization of the district court’s analysis of the parties’ work schedules is flawed in three respects.

¶26 First, Father fails to acknowledge that the work schedule was one of three factors the district court highlighted in Mother’s favor. The court also determined that Mother was more likely to allow “frequent and continuing contact with the other parent” and that Mother had a greater bond with Child.

¶27      Second, Father asserts that in Fullmer v. Fullmer, 761 P.2d 942 (Utah Ct. App. 1988), this court held that it is an abuse of discretion to base a custody award on the parties’ work schedules. But Father misreads that case. Fullmer stated that the “[district] court abused its discretion by relying on [a minor child’s] placement in full-time day care to change [the child’s] custody placement” because “more and more children are raised by single parents who must work.” Id. at 948. In the present case, the district court did not punish Father for working. Rather, it stated that Mother’s work schedule was more conducive to devoting more time to Child.

¶28      Third, Father ignores the totality of the evidence. Father’s job as a supervisor at a coal mine required that he work variable twelve-hour shifts fourteen days out of every four weeks. In addition, Father has a nearly one-hour commute each way to work. He admits that the length of his commute requires him to rely on his extended family and his spouse to address emergencies involving Child that might arise while he is working. In contrast, Mother works Monday through Thursday from 10:30 a.m. to 5:00 p.m. at a convenience store close to home. Her employment affords her the flexibility to leave during her shift if the need arises. Therefore, Father has not shown that the district court’s finding that Mother can devote more time to Child’s needs than Father was clearly erroneous.

¶29      By failing to marshal the evidence in favor of the district court’s findings, Father has not met his burden of persuasion. Accordingly, we do not conclude that the findings are clearly erroneous and instead conclude that, although we might subjectively view the import of the evidence differently from the district court, we cannot say that the conclusions are against the great weight of evidence nor are we convinced that a mistake has been made.

II. The District Court Erred in Awarding Father Minimum

Parent-Time

A. Deviation from the Informal Custody Arrangement

¶30 Father next argues that the district court erred by failing to identify a compelling reason to deviate from the informal custody arrangement—under which Child was thriving, happy, and well-adjusted—and awarding primary physical custody to Mother and parent-time to Father.[5] “The importance of the myriad of factors used in determining a child’s best interests ranges from the possibly relevant to the critically important. At the critically important end of the spectrum, when the child is thriving, happy, and well-adjusted, lies continuity of placement.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “A very short custody arrangement of a few months, even if nurturing to some extent, is not entitled to as much weight as a similar arrangement of substantial duration. Of course, a lengthy custody arrangement in which a child has thrived ought rarely, if at all, to be disturbed, and then only if the circumstances are compelling.” Elmer v. Elmer, 776 P.2d 599, 604 (Utah 1989) (cleaned up). In Davis v. Davis, 749 P.2d 647, (Utah 1988), a custody arrangement that had been in place for just over a year was held sufficient to establish continuity. Id. at 648.

¶31 In the present case, we note that the informal custody arrangement was temporary and had been in place for about ten months—from January 2016 until the district court’s decision in November 2016—falling between the lengths of duration established in our case law. But the length of the informal custody arrangement is not the dispositive factor here. Rather, the district court recognized that the agreement could not continue because Child would be starting school the following year. And Father admits that “when [Child] turns five and begins kindergarten, the Court really does have to pick one parent for [Child] to reside with, at least Monday through Friday.” Mother also acknowledges that where Child attends school is an issue that must be addressed. Thus, the district court acted within its discretion and supported its decision with adequate findings when it departed from the informal custody arrangement. An imminent change in circumstance, namely Child’s starting school, required a change in the custody arrangement. Father fails to address this significant undisputed fact.

¶32 The district court acknowledged that joint physical custody would be in Child’s best interests if the parties lived in the same community, but the parties’ distance from each other precluded such an arrangement. Prompted by this reality, the district court weighed the factors, see supra ¶¶ 9–11, and concluded that Child’s best interests were served by awarding Mother primary physical custody. It noted that (1) Mother had been the primary caregiver for the majority of Child’s life, (2) Mother was more likely to allow “frequent and continuing contact with the other parent,” and (3) Mother’s work schedule was more conducive to having primary physical care of Child. As this court noted in Kimball v. Kimball, 2009 UT App 233, 217 P.3d 733, “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.” Id. ¶ 20 n.5.

¶33 Thus, we conclude that the district court did not exceed its discretion in relying on evidence of changed circumstances in departing from the informal custody arrangement and awarding Mother primary physical custody of Child.

B. The Award of Parent-Time to Father

¶34 Father argues that the district court erred in awarding him minimum parent-time, asserting that he showed by a preponderance of the evidence that he should be awarded parent-time in excess of the minimum guidelines in Utah Code sections 30-3-35 and 30-3-35.5. We agree that the district court’s award of only minimum parent-time was not supported by its findings.

¶35 “[T]he parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child . . . .” Utah Code Ann. § 30-3-34(2) (LexisNexis Supp. 2018).[6] But these parent-time schedules are subject to adjustment. See id. The schedules represent the minimum parent-time to which the noncustodial parent is entitled unless one of the parents can establish, by a preponderance of the evidence, that more or less time should be awarded based upon a number of criteria. See id. Criteria relevant to the case at hand include, amongst a lengthy list, (1) the distance between the residences of the custodial and noncustodial parents, (2) shared interests between the child and the noncustodial parent, (3) involvement of the noncustodial parent in the child’s community activities, and (4) “any other criteria the court determines relevant to the best interests of the child.” Id. § 30-3-34(2)(b), (h), (i), (o). Regardless of whether the court awards minimum parent-time or awards more or less than the statutory minimum, the statute requires the court to “enter the reasons underlying its order.” Id. § 30-3-34(3).

¶36 Without specifically referencing the statutory criteria, Father contends that the following evidence supported awarding him parent-time in excess of the statutory minimum: (1) Mother’s testimony that Child should have equal time with both parents; (2) neither distance nor finances made “frequent and meaningful” visitation prohibitive; (3) travel between the parents’ residences was not harmful to Child; (4) Child shared a strong bond with Father and Father’s wife and other children; and (5) Child thrived by following the routine in Father’s household.

¶37      “It has long been the law in this state that conclusions of law must be predicated upon and find support in the findings of fact and that the judgment or decree must follow the conclusions of law. When there is variance, the judgment must be corrected to conform with the findings of fact.” Gillmor v. Wright, 850 P.2d 431, 436 (Utah 1993). Such correction is appropriate in this case.

¶38 In the very sentence stating that it found Child’s best interests were served by awarding primary physical custody to Mother, the district court also stated that it “would likely have found a joint physical custody arrangement to be in [Child’s] best interests” if the parties lived reasonably close to each other. The district court reasonably concluded that the distance separating the parties’ residences justified something less than equal parent-time, especially once Child starts attending school. After all, Mother and Father agree that a 100-mile commute to school is unworkable. But this distance does not prevent other possible accommodations that could be accomplished without undue disruption to Child’s school schedule, such as awarding Father additional weekend time or more parent-time over the summer vacation, fall break, spring break, and holidays.

¶39      The district court made no attempt to explain, as required by the statute, its reason for awarding minimum parent-time. See Utah Code Ann. § 30-3-34(3). Given the district court’s findings that (1) Child was “well adjusted and doing very well pursuant” to the informal custody arrangement, (2) “[b]oth parents deeply love and are committed to [Child],” (3) “both parents are extremely motivated to be awarded physical custody of [Child],” (4)            both parties offer financial and emotional support to Child, (5)        “both parties spend appropriate time with” Child, (6) both parents are “fit” and “very bonded” with Child, and (7) the parties agree that Child needs a “relationship” and “substantial time with” the other parent, we would have expected that the court attempt to increase Father’s parent-time over the statutory minimum. Indeed, we are hard-pressed to understand the process by which the court awarded Father minimum parent-time when—in its own words—Father should be “allowed to exercise liberal and meaningful parent time” and where Mother argued at trial that both parents should have equal time with Child. In reality, the record reflects that Mother was arguing that she should have enhanced parent-time, likely believing that Father would prevail as the primary caretaker. Both through the presentation of evidence and in argument, Mother supported the notion that in this case enhanced parent-time should be awarded to the non-primary caregiver. Accordingly, awarding Father the statutory minimum parent-time while simultaneously concluding that the evidence supports awarding Father “liberal and meaningful” parent-time presents a conclusion that does not follow from the findings stated.

¶40      On this single issue we determine that the district court’s conclusion is not supported by its findings, and therefore the court exceeded its discretion when it minimized Father’s parent-time. Thus, we reverse on this issue because of inadequate findings and remand for additional findings and, if necessary, a reevaluation of what additional parent-time should be awarded.

CONCLUSION

¶41 We conclude that the evidence supports the district court’s findings leading it to determine that Child’s best interests were served by awarding primary physical custody to Mother. We further conclude that the district court made adequate findings supported by the record to depart from the informal custody arrangement, but we conclude that the court’s findings are inadequate to justify an award of only minimum parent-time to Father. Accordingly, we remand this matter for further proceedings.

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 [district] court’s findings, and therefore recite the facts consistent with that standard.” Lake Philgas Service v. Valley Bank & Trust Co., 845 P.2d 951, 953 n.1 (Utah Ct. App. 1993).

[2] Shortly after Child was born, Father reunited with his ex-wife. They had married for the first time in 2006, separated, divorced, and then remarried in June 2016.

[3] The temporary arrangement began about ten months prior to the November 2016 trial. A temporary order allowing Mother parent-time was in place from late December 2015 through early January 2016.

[4] The court concluded that Mother would be more likely than Father to allow contact because Father resorted to self-help to take possession of Child and then kept Child from Mother for some time. Father did not deny taking and keeping Child. But he asserted Mother stopped calling Child and never filed a police report. Father further argued that the district court ignored (1) Mother withholding Child from Father prior to the self-help incident and (2) Father’s willingness to allow additional contact under the informal custody arrangement. Although Father presented evidence that would have supported a contrary finding, we will not disturb the district court’s finding that Mother was more likely to allow frequent and continuing contact for the simple reason that this finding was also supported by the evidence.

[5] Father contends that Hudema v. Carpenter, 1999 UT App 290, 989 P.2d 491, stands for the proposition that the court must have a compelling reason to disrupt a stable custody situation. We disagree and find Father’s reliance on Hudema misplaced. In that decision, a panel of this court noted, “[N]ot all continuity [of custody arrangements] is alike. A heavy emphasis on preserving stability presupposes that the prior arrangement is not only satisfactory, but will in fact continue.” Id. ¶ 27. In Hudema, the mother had sole physical custody pursuant to a court order. Id. ¶ 3. While the district court was considering a petition to modify custody, the mother moved to another state. Id. ¶¶ 3–4. The district court determined that the custody arrangement could not continue due to changed circumstances. Id. ¶ 6. Accordingly, this court in Pingree v. Pingree, 2015 UT App 302, 365 P.3d 713, clarified that Hudema does not stand “for the proposition that a court must find compelling circumstances before ordering a change in custody when the child thrives under the current arrangement” but for the proposition that “[a] modification is premised on a finding of changed circumstances.” Id. ¶ 13. The present case is not presented in that context.

[6] We cite to the current version of this section because the recent amendments do not affect our analysis or the issue as presented by the parties.

 

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Nebeker v. Orton – 2019 UT App 23 – custody and parent-time

2019 UT App 23

THE UTAH COURT OF APPEALS

SHANE NEBEKER,
Appellant,
v.
TRISHA ANN ORTON,
Appellee.

Opinion

No. 20170438-CA

Filed February 14, 2019

Sixth District Court, Richfield Department
The Honorable Marvin D. Bagley
No. 154600140

Jared L. Peterson, Attorney for Appellant Benjamin Kearns, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1        Shane Nebeker (Father) and Trisha Ann Orton’s (Mother) extramarital relationship resulted in the birth of a son (Child). For the first eighteen months of Child’s life, Father saw him only a few times. Then, concerned about Mother’s illegal activities, Father took Child away from Mother without her consent. Sometime thereafter, Father and Mother worked out an extrajudicial, temporary custody arrangement that they perpetuated until a custody trial. After a bench trial, Mother was awarded primary physical custody of Child, and Father was awarded statutory minimum parent-time. Father appeals. We affirm in part—affirming the district court’s decision regarding primary custody—and reverse in part—reversing the district court’s decision related to Father’s parent-time.

BACKGROUND[1]

¶2Father and Mother are parents of Child, born in December 2013. Mother and Father ended their relationship before Child was born, and they lived about 100 miles apart. During the first eighteen months of Child’s life, Father saw Child on two occasions shortly after his birth. Mother stated that Father “was more than welcome to come down any time he wanted to” visit Child, but Father repeatedly told Mother, “I refuse to have anything to do with you to see my child.” Mother did not allow Father to remove Child from her supervision because (1) Child was nursing and (2) Mother felt Child needed “to get to know” Father before he took him for a visit. Father admitted Mother told him he could visit Child at her residence, but Father said it would have been “uncomfortable” because there were “still feelings.”[2]

¶3        Father did not provide financial support to Child or Mother during the first eighteen months of Child’s life. The Office of Recovery Services opened a case, and the matter came before the district court in early May 2015, where Father’s support obligation was determined.

¶4        In late May 2015, Mother allowed Father to visit Child. Mother’s daughter (Daughter) picked up Child and took him to meet Father at a nearby restaurant. Daughter allowed Father to take Child for a few minutes to buy a toy. But Father then sent Daughter a text message informing her that he was not returning Child. Father characterized this action as “rescuing” Child from the dangerous situation created by Mother’s drug use. Father took Child to his house. Mother stated that the day Father took Child was the “darkest day of [her] life” and admitted that she “wasn’t probably in the best place in [her] life.” For the first week after Father took Child, Father allowed Mother to call and read Child a bedtime story, but after that week Father refused to answer the phone, and Mother “was not allowed to see [Child] for six months.” Mother did not report Father’s taking of Child to the police or any other authority.

¶5        Mother realized that she was “never going to get [her] baby back” unless she “got clean.” She testified that she “found a new way of life” in a treatment center and “never touched [drugs] again.”

¶6        In October 2015, Father filed a parentage petition in which he sought sole custody of Child and child support from Mother. Around January 2016, Mother and Father “agreed” to an ongoing extrajudicial temporary custody arrangement under which Child stayed ten out of every twenty-eight days with Mother and the balance of the days with Father.[3] Mother said that she felt “bullied” into accepting the temporary arrangement. Father stated that Child did well under the arrangement.

¶7        Ultimately, a two-day bench trial was held in October and November 2016. The district court made the following findings of fact: (1) Mother and Father began a relationship when they were teenagers; (2) each had been married or in relationships with other persons; (3) each had other children from prior marriages or relationships; (4) each had a history of using illegal drugs and violating the law; (5) Father was married and Mother was single at the time of trial; (6) Child had his own bed and bedroom in Father’s house; (7) Child had his own bed in Mother’s room at Mother’s house; (8) Father and Mother resided approximately 105 miles apart and had no plans to move closer to each other; (9) Mother had a good support system where she lived and believed she could avoid adverse influences she might encounter elsewhere; (10) Mother and Father each had family members to provide support and a positive influence on Child; Father’s employment required him to be away from home for fourteen hours per day during scheduled work periods; Mother worked six-and-one-half hours daily, Monday through Thursday; (13) Child had been residing with both parents pursuant to an informal, temporary parent-time schedule; (14) Child was well-adjusted and doing well under the informal agreement. The district court also found:

Both parties acknowledged past deficiencies in their parenting abilities. In essence both parties have had periods in their [lives] when they have been less than fit parents. However, at the present time both parties contribute financially to the welfare of [Child]; and both parties spend appropriate time with, and provide appropriate emotional support to [Child]. Essentially, both parents are fit parents. Both are very bonded with [Child].

¶8        In its analysis, the district court acknowledged that both parties had a history of drug problems, criminal activities, and extramarital sexual relations. “While Father cleaned his life up sooner than Mother, there is insufficient evidence for [the district court] to make a decision as to whether one of the parties’ past conduct was better or worse than the other.” Indeed, Father admitted having a history of criminal activity, including “a couple DUIs,” methamphetamine and marijuana use with Mother, and being incarcerated more than three times. Mother likewise admitted that she had a history of drug use and selling drugs, but she had been “over a year clean” at the time of the trial. Thus, the district court determined that “evidence relating to past conduct and moral standards is equally balanced between the parties.“

¶9        In determining which parent should have primary physical care of Child, the district court highlighted four factors. First, in analyzing which party was most likely to allow “frequent and continuing contact with the other parent,” the district court noted that the facts did not weigh in Father’s favor, particularly because Father “surreptitiously” and “underhandedly” took Child and did not allow Mother to contact Child for a significant period. At the same time, the court acknowledged that taking Child motivated Mother’s recovery from drug use. The district court found the evidence supported the conclusion that Child was “doing very well” in the care of both parents and that both parties were cooperating in providing the other “meaningful parent time.”

¶10 Second, the district court determined that Child had a greater bond with Mother:

While [Child] has recently spent considerable periods of time with Father, [Child] has overall lived more with Mother than Father. Prior to the time Father became concerned enough with Mother’s drug use that he took self-help action, Father was content to allow [Child] to live primarily with Mother. The [district court] considers such action (or non-action) on the part of Father to be a tacit acknowledgement that the best interests of [Child] were being best served by [Child] living primarily with Mother.

Thus, the district court determined that Mother had been the primary caregiver for Child.

¶11      Third, “Mother’s work schedule is also more conducive to her having primary physical care of [Child].” The court reasoned that Mother could “devote more time to [Child’s] needs than Father” because she “works fewer hours, travels less time to and from work, and has a more consistent work schedule than Father.”

¶12      Fourth, the court cited the distance separating the parties as a motivating factor in its determination. “If the parties were living in the same community, or within a reasonably close distance from each other, the [district court] would likely have found a joint physical custody arrangement to be in [Child’s] best interests.” Indeed, both parties acknowledged at trial that once Child begins school, one parent must necessarily have primary custody. As Father noted, “Obviously when school starts, I think that’s why we’re here today. . . . I don’t think we could possibly do a two week on or a one week on schedule when he’s going to school.”

¶13 Having weighed these factors, the court determined that it was in Child’s best interests to award the parties joint legal custody, with Mother having primary physical custody. The district court further specified that “Father be allowed to exercise liberal and meaningful parent time with [Child]. At a minimum Father should be entitled to the aggregate amount of parent time provided by Utah Code Ann. § 30-3-35; with adjustments being made to that schedule to ensure Father’s parent time is exercised, as much as is reasonably possible, at times Father is off work.” Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 The first issue is whether the district court’s factual findings were properly supported by the evidence. “A challenge to the sufficiency of the evidence concerns the [district] court’s findings of fact. Those findings will not be disturbed unless they are clearly erroneous.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (cleaned up). And a “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.” Id. (cleaned up).

¶15      The second issue is whether the district court erred when it departed from the informal custody arrangement and awarded primary physical custody to Mother and only the statutory minimum parent-time to Father. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (cleaned up). We will not disturb the district court’s judgment “unless we determine the [district] court has exceeded the scope of permitted discretion or has acted contrary to law.” Davis v. Davis, 2001 UT App 225, ¶ 6, 29 P.3d 676 (cleaned up). Further, “[i]t has long been the law in this state that conclusions of law must be predicated upon and find support in the findings of fact and that the judgment or decree must follow the conclusions of law.” Gillmor v. Wright, 850 P.2d 431, 436 (Utah 1993).

ANALYSIS

  1. The Evidence Supported the District Court’s Factual Findings

¶16 Father’s first argument is that the evidence does not support the court’s factual findings. 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 (cleaned up). But “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 (cleaned up). Rather, “to successfully challenge a [district] court’s factual finding 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 (cleaned up). “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. Thus, “a party challenging a factual finding or sufficiency of the evidence to support a verdict will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal.” State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645.

¶17 Here, Father has not addressed many of the district “court’s findings and makes no attempt to marshal the evidence in support of them. He clearly views the evidence as compelling a different outcome, but it is not within our purview to engage in a reweighing of the evidence, and [Father] has not demonstrated that the evidence underlying the [district] court’s findings is insufficient.” See Shuman v. Shuman, 2017 UT App 192, ¶ 9, 406 P.3d 258 (cleaned up). We illustrate a portion of the absence of marshaling as follows.

  1. Child’s Best Interests

¶18 Father disagrees that Mother is more likely than he is to act in Child’s best interests. The court found that Father “underhandedly” and “surreptitiously” took Child and “kept Child from Mother for some time.” Father responded that he allowed phone contact between Mother and Child, and noted that Mother never filed a police report against him after he took Child, implying that she tacitly supported Father’s decision to take Child. But Father fails to address why Mother would have been reluctant to call police. Mother had warrants out for her arrest. If she had filed a report, she likely would have lost custody of Child because she would have been arrested. By taking Child and withholding him from Mother, Father placed Mother in a no-win situation.

¶19 In contrast to Father’s actions, the record indicates that Mother was willing to let Father visit Child. Shortly after Child was born and before paternity had been established, Mother allowed Father to visit Child. Father admitted that Mother told him he could come visit Child at her parents’ house, but Father declined because there were “still feelings” and he was “uncomfortable” with such an arrangement. After paternity was established and Father agreed to pay child support, Mother allowed him to spend time with Child at a restaurant—a decision that led to her losing physical possession of Child. Furthermore, unlike Father, Mother never attempted to regain exclusive possession of Child through surreptitious means.

¶20      The district court also found that Father’s “non-action” in allowing Child to remain with Mother for the first eighteen months of his life was a “tacit acknowledgment” that Child’s best interests were served by remaining primarily with Mother. The court also noted that, although there was some dispute in the evidence at trial, Father told Mother shortly after taking Child that this arrangement was temporary and “she would get [Child] back after she cleaned up her drug use.”

¶21 From this evidence the court concluded that “the parties have recognized it is in the best interest of [Child] that [Mother] continue” to be his primary caregiver. As we noted in Shuman, Father “views the evidence as compelling a different outcome”— that his efforts to gain custody of Child demonstrate he was not content with allowing Child to live primarily with Mother—“but it is not within our purview to engage in a reweighing of the evidence.” 2017 UT App 192, ¶ 9 (cleaned up). Thus, the district court’s determination that Child’s best interests were served by awarding Mother primary custody was sufficiently supported by the evidence and was not clearly erroneous.[4]

  1. Primary Caretaker Assessment

¶22 Father next argues that the district court’s finding that Mother was the primary caretaker for the majority of Child’s life is “contrary to the law and evidence.” But Child lived exclusively with Mother for the first eighteen months of his life. In contrast, the parties shared custody from January 2016 until trial in late 2016. Father had sole custody for only about seven months— from May 2015 when he took child until January 2016 when the parties agreed to a temporary custody arrangement.

¶23 Father responds that “[i]t is not who the child has lived with the majority of his life, but who the child has lived with once a party initiates legal action.” Father cites Davis v. Davis, 749 P.2d 647 (Utah 1988), in support of this proposition. We find Father’s reading of Davis selective and inaccurate. In Davis, the parties in a divorce proceeding agreed that the father would have custody of a minor child so the child could stay in the family home. Id. at 648. About one month later, the divorce decree was set aside on the grounds that the mother was emotionally unstable at the time of the original proceeding and did not realize the consequences of her actions. Id. In the renewed divorce proceedings, the court awarded custody of the child to the father. Id. Our supreme court upheld the decision, noting that the father had been the child’s “primary caregiver for over a year and had provided a very stable environment.” Id. From this holding, Father argues that because he had primary custody of Child during the pendency of this matter, “[t]he District Court erred in disregarding this information in favor of the care provided by [Mother].”

¶24 As Mother points out in her brief, this “position is contrary to Utah law and basic logic.” Such an approach might require a court to award primary caretaker status to the parent who filed for custody after only recently gaining possession of a child over the interests of the parent who had a previous, but much longer, possession. Father’s position is also contrary to Davis. Directly following the statement that the current custody arrangement should be given special weight, the Davis court warned, “Of course, if the primary caregiver gained that status wrongfully, courts should be careful not to reward such conduct by giving the wrongdoer a consequential advantage in evaluating the custody question.” Id. at 648–49. We find Father’s reliance on Davis misplaced precisely because, as the district court noted, he gained primary caregiver status wrongfully when he “surreptitiously” and “underhandedly” took possession of Child through “self-help.” Therefore, the district court’s finding was not clearly erroneous.

  1. Work Schedule Analysis

¶25 Father also challenges the district court’s finding that Mother’s work schedule was more conducive to her having primary physical custody. Father argues that the district court’s decision “[e]ssentially . . . came down to its finding that [Mother’s] work schedule, a schedule where she worked more days, but fewer hours in a two-week period than [Father] served [Child’s] best interest.” Father’s characterization of the district court’s analysis of the parties’ work schedules is flawed in three respects.

¶26 First, Father fails to acknowledge that the work schedule was one of three factors the district court highlighted in Mother’s favor. The court also determined that Mother was more likely to allow “frequent and continuing contact with the other parent” and that Mother had a greater bond with Child.

¶27      Second, Father asserts that in Fullmer v. Fullmer, 761 P.2d 942 (Utah Ct. App. 1988), this court held that it is an abuse of discretion to base a custody award on the parties’ work schedules. But Father misreads that case. Fullmer stated that the “[district] court abused its discretion by relying on [a minor child’s] placement in full-time day care to change [the child’s] custody placement” because “more and more children are raised by single parents who must work.” Id. at 948. In the present case, the district court did not punish Father for working. Rather, it stated that Mother’s work schedule was more conducive to devoting more time to Child.

¶28      Third, Father ignores the totality of the evidence. Father’s job as a supervisor at a coal mine required that he work variable twelve-hour shifts fourteen days out of every four weeks. In addition, Father has a nearly one-hour commute each way to work. He admits that the length of his commute requires him to rely on his extended family and his spouse to address emergencies involving Child that might arise while he is working. In contrast, Mother works Monday through Thursday from 10:30 a.m. to 5:00 p.m. at a convenience store close to home. Her employment affords her the flexibility to leave during her shift if the need arises. Therefore, Father has not shown that the district court’s finding that Mother can devote more time to Child’s needs than Father was clearly erroneous.

¶29      By failing to marshal the evidence in favor of the district court’s findings, Father has not met his burden of persuasion. Accordingly, we do not conclude that the findings are clearly erroneous and instead conclude that, although we might subjectively view the import of the evidence differently from the district court, we cannot say that the conclusions are against the great weight of evidence nor are we convinced that a mistake has been made.

  1. The District Court Erred in Awarding Father Minimum
    Parent-Time
  2. Deviation from the Informal Custody Arrangement

¶30 Father next argues that the district court erred by failing to identify a compelling reason to deviate from the informal custody arrangement—under which Child was thriving, happy, and well-adjusted—and awarding primary physical custody to Mother and parent-time to Father.[5] “The importance of the myriad of factors used in determining a child’s best interests ranges from the possibly relevant to the critically important. At the critically important end of the spectrum, when the child is thriving, happy, and well-adjusted, lies continuity of placement.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “A very short custody arrangement of a few months, even if nurturing to some extent, is not entitled to as much weight as a similar arrangement of substantial duration. Of course, a lengthy custody arrangement in which a child has thrived ought rarely, if at all, to be disturbed, and then only if the circumstances are compelling.” Elmer v. Elmer, 776 P.2d 599, 604 (Utah 1989) (cleaned up). In Davis v. Davis, 749 P.2d 647, (Utah 1988), a custody arrangement that had been in place for just over a year was held sufficient to establish continuity. Id. at 648.

¶31 In the present case, we note that the informal custody arrangement was temporary and had been in place for about ten months—from January 2016 until the district court’s decision in November 2016—falling between the lengths of duration established in our case law. But the length of the informal custody arrangement is not the dispositive factor here. Rather, the district court recognized that the agreement could not continue because Child would be starting school the following year. And Father admits that “when [Child] turns five and begins kindergarten, the Court really does have to pick one parent for [Child] to reside with, at least Monday through Friday.” Mother also acknowledges that where Child attends school is an issue that must be addressed. Thus, the district court acted within its discretion and supported its decision with adequate findings when it departed from the informal custody arrangement. An imminent change in circumstance, namely Child’s starting school, required a change in the custody arrangement. Father fails to address this significant undisputed fact.

¶32 The district court acknowledged that joint physical custody would be in Child’s best interests if the parties lived in the same community, but the parties’ distance from each other precluded such an arrangement. Prompted by this reality, the district court weighed the factors, see supra ¶¶ 9–11, and concluded that Child’s best interests were served by awarding Mother primary physical custody. It noted that (1) Mother had been the primary caregiver for the majority of Child’s life, (2) Mother was more likely to allow “frequent and continuing contact with the other parent,” and (3) Mother’s work schedule was more conducive to having primary physical care of Child. As this court noted in Kimball v. Kimball, 2009 UT App 233, 217 P.3d 733, “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.” Id. ¶ 20 n.5.

¶33 Thus, we conclude that the district court did not exceed its discretion in relying on evidence of changed circumstances in departing from the informal custody arrangement and awarding Mother primary physical custody of Child.

  1. The Award of Parent-Time to Father

¶34 Father argues that the district court erred in awarding him minimum parent-time, asserting that he showed by a preponderance of the evidence that he should be awarded parent-time in excess of the minimum guidelines in Utah Code sections 30-3-35 and 30-3-35.5. We agree that the district court’s award of only minimum parent-time was not supported by its findings.

¶35 “[T]he parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child . . . .” Utah Code Ann. § 30-3-34(2) (LexisNexis Supp. 2018).[6] But these parent-time schedules are subject to adjustment. See id. The schedules represent the minimum parent-time to which the noncustodial parent is entitled unless one of the parents can establish, by a preponderance of the evidence, that more or less time should be awarded based upon a number of criteria. See id. Criteria relevant to the case at hand include, amongst a lengthy list, (1) the distance between the residences of the custodial and noncustodial parents, (2) shared interests between the child and the noncustodial parent, (3) involvement of the noncustodial parent in the child’s community activities, and (4) “any other criteria the court determines relevant to the best interests of the child.” Id. § 30-3-34(2)(b), (h), (i), (o). Regardless of whether the court awards minimum parent-time or awards more or less than the statutory minimum, the statute requires the court to “enter the reasons underlying its order.” Id. § 30-3-34(3).

¶36 Without specifically referencing the statutory criteria, Father contends that the following evidence supported awarding him parent-time in excess of the statutory minimum: (1) Mother’s testimony that Child should have equal time with both parents; (2) neither distance nor finances made “frequent and meaningful” visitation prohibitive; (3) travel between the parents’ residences was not harmful to Child; (4) Child shared a strong bond with Father and Father’s wife and other children; and (5) Child thrived by following the routine in Father’s household.

¶37      “It has long been the law in this state that conclusions of law must be predicated upon and find support in the findings of fact and that the judgment or decree must follow the conclusions of law. When there is variance, the judgment must be corrected to conform with the findings of fact.” Gillmor v. Wright, 850 P.2d 431, 436 (Utah 1993). Such correction is appropriate in this case.

¶38 In the very sentence stating that it found Child’s best interests were served by awarding primary physical custody to Mother, the district court also stated that it “would likely have found a joint physical custody arrangement to be in [Child’s] best interests” if the parties lived reasonably close to each other. The district court reasonably concluded that the distance separating the parties’ residences justified something less than equal parent-time, especially once Child starts attending school. After all, Mother and Father agree that a 100-mile commute to school is unworkable. But this distance does not prevent other possible accommodations that could be accomplished without undue disruption to Child’s school schedule, such as awarding Father additional weekend time or more parent-time over the summer vacation, fall break, spring break, and holidays.

¶39      The district court made no attempt to explain, as required by the statute, its reason for awarding minimum parent-time. See Utah Code Ann. § 30-3-34(3). Given the district court’s findings that (1) Child was “well adjusted and doing very well pursuant” to the informal custody arrangement, (2) “[b]oth parents deeply love and are committed to [Child],” (3) “both parents are extremely motivated to be awarded physical custody of [Child],”

both parties offer financial and emotional support to Child,

“both parties spend appropriate time with” Child, (6) both parents are “fit” and “very bonded” with Child, and (7) the parties agree that Child needs a “relationship” and “substantial time with” the other parent, we would have expected that the court attempt to increase Father’s parent-time over the statutory minimum. Indeed, we are hard-pressed to understand the process by which the court awarded Father minimum parent-time when—in its own words—Father should be “allowed to exercise liberal and meaningful parent time” and where Mother argued at trial that both parents should have equal time with Child. In reality, the record reflects that Mother was arguing that she should have enhanced parent-time, likely believing that Father would prevail as the primary caretaker. Both through the presentation of evidence and in argument, Mother supported the notion that in this case enhanced parent-time should be awarded to the non-primary caregiver. Accordingly, awarding Father the statutory minimum parent-time while simultaneously concluding that the evidence supports awarding Father “liberal and meaningful” parent-time presents a conclusion that does not follow from the findings stated.

¶40      On this single issue we determine that the district court’s conclusion is not supported by its findings, and therefore the court exceeded its discretion when it minimized Father’s parent-time. Thus, we reverse on this issue because of inadequate findings and remand for additional findings and, if necessary, a reevaluation of what additional parent-time should be awarded.

CONCLUSION

¶41 We conclude that the evidence supports the district court’s findings leading it to determine that Child’s best interests were served by awarding primary physical custody to Mother. We further conclude that the district court made adequate findings supported by the record to depart from the informal custody arrangement, but we conclude that the court’s findings are inadequate to justify an award of only minimum parent-time to Father. Accordingly, we remand this matter for further proceedings.

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 [district] court’s findings, and therefore recite the facts consistent with that standard.” Lake Philgas Service v. Valley Bank & Trust Co., 845 P.2d 951, 953 n.1 (Utah Ct. App. 1993).

[2] Shortly after Child was born, Father reunited with his ex-wife. They had married for the first time in 2006, separated, divorced, and then remarried in June 2016.

[3] The temporary arrangement began about ten months prior to the November 2016 trial. A temporary order allowing Mother parent-time was in place from late December 2015 through early January 2016.

[4] The court concluded that Mother would be more likely than Father to allow contact because Father resorted to self-help to take possession of Child and then kept Child from Mother for some time. Father did not deny taking and keeping Child. But he asserted Mother stopped calling Child and never filed a police report. Father further argued that the district court ignored (1) Mother withholding Child from Father prior to the self-help incident and (2) Father’s willingness to allow additional contact under the informal custody arrangement. Although Father presented evidence that would have supported a contrary finding, we will not disturb the district court’s finding that Mother was more likely to allow frequent and continuing contact for the simple reason that this finding was also supported by the evidence.

[5] Father contends that Hudema v. Carpenter, 1999 UT App 290, 989 P.2d 491, stands for the proposition that the court must have a compelling reason to disrupt a stable custody situation. We disagree and find Father’s reliance on Hudema misplaced. In that decision, a panel of this court noted, “[N]ot all continuity [of custody arrangements] is alike. A heavy emphasis on preserving stability presupposes that the prior arrangement is not only satisfactory, but will in fact continue.” Id. ¶ 27. In Hudema, the mother had sole physical custody pursuant to a court order. Id. ¶ 3. While the district court was considering a petition to modify custody, the mother moved to another state. Id. ¶¶ 3–4. The district court determined that the custody arrangement could not continue due to changed circumstances. Id. ¶ 6. Accordingly, this court in Pingree v. Pingree, 2015 UT App 302, 365 P.3d 713, clarified that Hudema does not stand “for the proposition that a court must find compelling circumstances before ordering a change in custody when the child thrives under the current arrangement” but for the proposition that “[a] modification is premised on a finding of changed circumstances.” Id. ¶ 13. The present case is not presented in that context.

[6] We cite to the current version of this section because the recent amendments do not affect our analysis or the issue as presented by the parties.

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Lay v. Lay – 2018 UT App 137 – § 30-3-35.1 parent-time not mandatory

2018 UT App 137

THE UTAH COURT OF APPEALS

BRANDON CHRISTOPHER LAY,
Appellant,
v.
CORINNA NICOLE LAY,
Appellee.

Opinion
No. 20170230-CA
Filed July 12, 2018

Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 074400807
Steve S. Christensen and Clinton R. Brimhall, Attorneys for Appellant
J. Brady Kronmiller and Amy G. Larsen, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN and RYAN M. HARRIS concurred.

POHLMAN, Judge:

¶1 Brandon Christopher Lay and Corinna Nicole Lay, now Corinna Nicole Gustafson, divorced in 2008. The divorce decree awarded the parties joint legal and physical custody of their minor daughter (Child). Gustafson was designated as Child’s primary physical caretaker, and Lay was granted six out of every fourteen overnights for parent-time. Around 2011, the parties informally agreed to a new parent-time schedule due to conflicts with Lay’s work schedule and Child’s need for more stability. Under their agreement, Lay would have Child only on alternating weekends, Friday night through Sunday night. Although Lay’s scheduling conflict was eventually resolved, the parties continued to operate under the revised parent-time schedule for approximately five years.

¶2 In 2015, the parties—for different reasons—each asked the district court to modify the divorce decree. The district court ordered that the parent-time schedule originally established in the divorce decree be followed during the summer months. For the school year, the court ordered that Lay would have Child only on alternating weekends but that his parent-time “should be Friday and Saturday nights only, not Sunday nights, to better accommodate school attendance.”

¶3 Lay appeals, raising two main challenges. First, Lay contends that the district court misinterpreted the statute that provides for increased parent-time for the noncustodial parent and erred by not adopting the optional schedule described in that statute. Second, Lay contends that the district court exceeded its discretion and made legally inadequate findings regarding its decision to grant him “only alternating Friday and Saturday overnights during the school year instead of alternating Friday, Saturday, and Sunday overnights” and its decision to deny him midweek parent-time during the school year. We affirm with respect to Lay’s first contention, but because we agree with Lay that the district court’s findings are inadequately detailed, we remand for further proceedings.

STANDARDS OF REVIEW

¶4 We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. See Wight v. Wight, 2011 UT App 424, ¶ 23, 268 P.3d 861. However, we review the district court’s interpretation of a statute for correctness. Id. Likewise, “we review the legal adequacy of findings of fact for correctness as a question of law.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 15, 257 P.3d 478 (quotation simplified); see also Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262 (“We review the legal sufficiency of factual findings—that is, whether the [district] court’s factual findings are sufficient to support its legal conclusions—under a correction-of-error standard, according no particular deference to the [district] court.” (quotation simplified)).

ANALYSIS

I. The Statutory Optional Parent-Time Schedule

¶5 Lay first contends that the district court misinterpreted Utah Code section 30-3-35.1, which sets forth an optional parent-time schedule that provides more parent-time for the noncustodial parent than the default minimum amount. According to Lay, he satisfied his evidentiary burden under that statute, and the district court was therefore required to adopt that statute’s optional parent-time schedule.[1]

¶6 Each divorced parent “is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests.” Utah Code Ann. § 30-3-32(2)(b)(ii) (LexisNexis Supp. 2017). To that end, Utah Code section 30-3-35 sets a default minimum parent-time schedule “to which the noncustodial parent and the child [who is between five and eighteen years old] shall be entitled,” id. § 30-3-35(2), unless “the court determines that Section 30-3-35.1 should apply” or a parent can establish “that more or less parent-time should be awarded,” id. § 30-3-34(2). Under the default minimum schedule in section 30-3-35, the noncustodial parent is entitled to parent-time with the child during one weekday evening and on alternating weekends, which include Friday and Saturday overnights. See id. § 30-3-35(2)(a)(i), (2)(b)(i).

¶7 The Utah Code also provides an alternative statutory parent-time schedule for children between five and eighteen years old. Enacted in 2015, Utah Code section 30-3-35.1 describes an “optional” increased parent-time schedule. Id. § 30-3-35.1. Under this schedule, the noncustodial parent has parent-time for one weekday overnight and, on alternating weekends, three overnights (Friday through Sunday nights), resulting in the noncustodial parent having approximately 145 overnights with the child during a calendar year. Id. § 30-3-35.1(1), (6).

¶8 The statute directs that “[t]he parents and the court may consider” the increased parent-time schedule under section 30-3-35.1 “as a minimum” in two circumstances: when “the parties agree,” or when “the noncustodial parent can demonstrate” the existence of certain factors. Id. § 30-3-35.1(2) (emphasis added). Those factors are:

a) the noncustodial parent has been actively involved in the child’s life;

b) the parties are able to communicate effectively regarding the child, or the noncustodial parent has a plan to accomplish effective communications regarding the child;

c) the noncustodial parent has the ability to facilitate the increased parent-time;

d) the increased parent-time would be in the best interest of the child; and

e) any other factor the court considers relevant. Id.

¶9 Lay contends that, if a noncustodial parent successfully demonstrates that the factors listed in Utah Code section 30-3-35.1(2) are present, then the parent-time schedule in that section “becom[es] the minimum amount of parent time that a trial court may award to the noncustodial parent.” Specifically, he asserts that once the noncustodial parent makes the required showing, the district court must order the parent-time schedule laid out in section 30-3-35.1. Lay acknowledges the statute provides that the court “may consider” the increased parent-time schedule upon such a showing, but he asserts that “[t]he word may in the statute should be construed . . . as shall.” We disagree.

¶10 “When we interpret statutes, our primary objective is to ascertain the intent of the legislature.” Scott v. Scott, 2017 UT 66, ¶ 22 (quotation simplified). Because “the best evidence of the legislature’s intent is the plain language of the statute itself, we look first to the plain language of the statute.” Id. (quotation simplified). “In so doing, we presume that the legislature used each word advisedly” and that “the expression of one term should be interpreted as the exclusion of another, thereby presuming all omissions to be purposeful.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (quotations simplified). “Further, we interpret statutes to give meaning to all parts, and avoid rendering portions of the statute superfluous.” Dahl v. Dahl, 2015 UT 79, ¶ 159 (quotation simplified). “To do so, 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.” Id. (quotation simplified). “When we can ascertain the intent of the legislature from the statutory terms alone, no other interpretive tools are needed, and our task of statutory construction is typically at an end.” Scott, 2017 UT 66, ¶ 22 (quotation simplified).

¶11 Section 30-3-35.1 states, “The parents and the court may consider the following increased parent-time schedule as a minimum when the parties agree or the noncustodial parent can demonstrate [certain factors] . . . .” Utah Code Ann. § 30-3-35.1(2) (LexisNexis Supp. 2017) (emphasis added). Assuming, without deciding, that Lay has demonstrated the existence of those factors, see id. § 30-3-35.1(2)–(4), we conclude that the district court was not required to adopt the section 30-3-35.1 parent-time schedule.

¶12 The Utah Code defines the meaning of the words “may” and “shall.” “‘May’ means that an action is authorized or permissive.” Utah Code Ann. § 68-3-12(1)(g) (LexisNexis 2016); see also May, Black’s Law Dictionary (10th ed. 2014) (“[t]o be permitted to” and “[t]o be a possibility”); In re A.J.B., 2017 UT App 237, ¶ 25, 414 P.3d 552 (indicating that the “use of the term ‘may’ means that a court is certainly authorized” to take a particular action but “is not necessarily required to do so”). The word “shall,” on the other hand, means “an action is required or mandatory.” Utah Code Ann. § 68-3-12(1)(j); see also John Kuhni & Sons Inc. v. Labor Comm’n, 2018 UT App 6, ¶ 10, 414 P.3d 952 (noting that “shall” is “a mandatory word requiring strict compliance with its directive” (quotation simplified)); Diener v. Diener, 2004 UT App 314, ¶ 12, 98 P.3d 1178 (“Ordinarily, the use of the word ‘shall’ in a statute creates a mandatory condition, eliminating any discretion on the part of the courts.”).

¶13 Here, section 30-3-35.1’s use of the term “may,” rather than “shall,” indicates that, provided the parties agree or the noncustodial parent makes the required showing, the district court is authorized, but not required, to consider the optional increased parent-time schedule as described in the statute. Stated differently, the noncustodial parent’s demonstration of the enumerated factors gives the court the discretion to consider the increased parent-time schedule, but there is no language in the statute making the court’s consideration of that schedule—much less its adoption—mandatory. Indeed,the statute describes the parent-time schedule at issue as the “optional parent-time schedule.” Utah Code Ann. § 30-3-35.1(1) (emphasis added). The use of the term “optional” indicates that the increased parent-time schedule involves a choice on the part of the district court and is “not compulsory.” See Optional, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/optional (last visited June 26, 2018) (“involving an option” and “not compulsory”); Option, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/option (last visited June 26, 2018) (“an act of choosing,” “the power or right to choose,” or “something that may be chosen”).

¶14 Notwithstanding the statute’s plain language, Lay effectively invites us to construe the phrase “may consider” as “shall adopt.” Lay argues that treating section 30-3-35.1 “as merely permissive instead of required would lead to absurd results and would render [the statute], in its entirety, superfluous.” In other words, he suggests that unless we interpret section 30-3-35.1 as mandating the adoption of the increased parent-time schedule under certain circumstances, the statute is rendered superfluous and therefore absurd. We are not persuaded.

¶15 The absurdity doctrine applies “to reform unambiguous statutory language where applying the plain language leads to results so overwhelmingly absurd no rational legislator could have intended them.”[2] Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 46, 357 P.3d 992 (Durrant, C.J., concurring). Invocation of this doctrine has been described as “a drastic step” and as “strong medicine, not to be administered lightly.” Id. ¶ 48 (quotation simplified). That is because the text of an unambiguous statute “is almost always irrefutable evidence of the legislature’s intent, even if it leads to results we regard as impractical or ill-advised.” Id. With this standard in mind, we readily conclude that the doctrine has no application here.

¶16 Section 30-3-35.1 is not rendered absurd by interpreting it as reserving in the district court the discretion of whether to consider ordering the increased parent-time. After all, district courts are generally afforded “broad discretion” to establish parent-time. See Tobler v. Tobler, 2014 UT App 239, ¶ 24, 337 P.3d 296 (“The district court has the discretion to establish parent-time in the best interests of the children.”); Utah Code Ann. § 30-3-34(1) (LexisNexis Supp. 2017) (“If the parties are unable to agree on a parent-time schedule, the court may establish a parent-time schedule consistent with the best interests of the child.”). And it is not absurd to conclude that the legislature intended to provide the district court with some guidance and tools for adopting increased parent-time schedules without eliminating the court’s discretion to apply those tools in the best interest of the child. At the very least, the statute provides legislatively established standards for the district court to apply in evaluating whether increased parent-time is warranted, and it eliminates the need for a district court to independently fashion an increased parent-time schedule by providing a detailed schedule for the court to modify or adopt. We cannot conclude that this operation—even if its reach is more permissive than mandatory—is “so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” See Utley, 2015 UT 75, ¶ 48.

¶17 For these reasons, we conclude that the plain language of section 30-3-35.1 gives the court discretion to consider, under appropriate circumstances, ordering parent-time above the minimum set in section 30-3-35, and we reject Lay’s contention that the district court here was required to grant him increased parent-time pursuant to section 30-3-35.1.

II. The District Court’s Parent-Time Order

¶18 Lay next challenges the district court’s decisions granting him “only alternating Friday and Saturday overnights” and denying him midweek parent-time during the school year. He raises two contentions in support. First, he contends that the court exceeded its discretion. Second, he contends that the court made legally inadequate findings. Because we agree with Lay on his second contention, we do not reach the first.[3]

¶19 The district court’s factual findings “are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Rayner v. Rayner, 2013 UT App 269, ¶ 11, 316 P.3d 455 (quotation simplified); see also Shuman v. Shuman, 2017 UT App 192, ¶ 5, 406 P.3d 258 (“A trial court’s factual findings must be sufficiently detailed and include enough subsidiary facts to clearly show the evidence upon which they are grounded.” (quotation simplified)). 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.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882. Indeed, the district court’s obligation to render adequate findings “facilitates meaningful appellate review and ensures the parties are informed of the [district] court’s reasoning.” Shuman, 2017 UT App 192, ¶ 5.

¶20 In reviewing the legal adequacy of the district court’s findings, we also bear in mind that the Utah Code requires that, in ordering parent-time, the court “shall enter the reasons underlying its order.” Utah Code Ann. § 30-3-34(3) (LexisNexis Supp. 2017) (“The court shall enter the reasons underlying its order for parent-time that: (a) incorporates a parent-time schedule provided in Section 30-3-35 . . . ; or (b) provides more or less parent-time than a parent-time schedule provided in Section 30-3-35 . . . .”).

¶21 Lay contends that the district court’s factual findings were legally inadequate to support its decisions regarding both the weekend overnights schedule and his request for midweek parent-time. With regard to the weekend overnights schedule, Lay asserts that the district court’s findings did not adequately explain its decision to grant him parent-time “only alternating Friday and Saturday overnights during the school year but not Sunday overnights,” when Child “had been thriving under a schedule with Sunday overnights.” Lay concedes that “the district court mentioned the accommodation of school attendance as a justification,” but he asserts that “there are no findings about a need to better accommodate [Child’s] school attendance.” With regard to midweek parent-time, Lay contends that “the district court’s decision not to allow the midweek visits required by the minimum parent time statute is supported by inadequate findings.” To buttress this position, Lay asserts that the “statutory minimum schedule requires midweek visits,” that he had regularly exercised his midweek parent-time by spending lunchtime with Child, and that “this case [does] not fall under any of the exceptions to the statutory minimum schedule.”

¶22 The district court made the following findings regarding the parent-time schedules that the parties had followed since their divorce. The parties’ divorce decree was entered when Child was under the age of three and provided that, in a two-week period, Lay would have Child for six overnights and that Gustafson would have eight overnights. In 2011, after Child finished kindergarten, the parties informally agreed to change the parent-time schedule such that Lay would not have midweek parent-time and instead would have parent-time with Child only every other weekend from Friday night through Monday morning, amounting to three overnights during every two-week period. This informal agreement was driven by Lay’s work schedule and by Child’s need for stability given that “the number of transfers between parents [had] interfered with [her] well being.” With rare exceptions, the parties lived by this parent-time schedule, even during the summers, for five years. The parties cooperated well under that agreement until shortly before the parties petitioned to modify the decree.

¶23 The court also made findings related to Child’s schooling. Child attends a school roughly equidistant from Lay’s and Gustafson’s residences. Gustafson takes Child to school and has a work schedule that “allows greater flexibility as to getting [Child] to and from school than does [Lay].” In 2014 and 2015, Lay regularly would have lunch with Child during recess. At school, Child has shown that she is “doing better” and “getting more used to transition[s].”

¶24 As for Child’s overall well-being, the district court found that she is “well adjusted and happy and doing well, and doing better as she gets older.” Although she “still demands lots of structure and routine,” Child’s behavior is “getting better,” and Child responds better to changes when she is given advance notice and explanation. On the whole, Child is “making good progress,” “getting more resilient,” and is “more content now.”

¶25 Ultimately, the district court modified the parent-time schedule. Although the parties had operated under a schedule for the past five years where Lay had parent-time every other weekend, Friday through Sunday nights, the court ordered that, for the non-school months, Lay’s parent-time would remain as under the divorce decree, that is, Lay would have six overnights and Gustafson would have eight overnights in each two-week period. During the school year, however, the court ordered that Lay would have only two overnights on alternating weekends. The court explained that Lay’s parent-time every other weekend “should be Friday and Saturday nights only, not Sunday nights, to better accommodate school attendance, with a return of [Child] by [Lay] to [Gustafson] on Sunday evening at 7:00 pm during school months.”

¶26 We agree with Lay that the district court’s findings were not sufficiently detailed “to disclose the steps” the court took to reach its ultimate conclusion to adjust Lay’s alternating weekend parent-time from three overnights to two overnights. See Rayner v. Rayner, 2013 UT App 269, ¶ 11, 316 P.3d 455 (quotation simplified); see also Maak v. IHC Health Services, Inc., 2016 UT App 73, ¶¶ 45–46, 372 P.3d 64 (explaining that without insight into the district court’s reasoning and what record evidence supported its decision, the reviewing court was “unable to ascertain whether the district court’s [decision] follows logically from, and is supported by, the evidence” (quotation simplified)). The court found that under the working parent-time schedule, which included Sunday overnights, Child was “well adjusted” and “doing well.” Yet the court ordered a change to that schedule on the basis of “better accommodat[ing] [Child’s] school attendance.” And the court’s factual findings do not explain why having Lay return Child to Gustafson on Sunday evenings, as opposed to dropping Child off at school on Monday mornings, would “better accommodate [Child’s] school attendance.” The court did find that Gustafson drives Child to school and generally has more flexibility than Lay to take Child to and from school. But the court did not say, for instance, that Lay is incapable of taking Child to school on Monday or that his Sunday overnights under the existing schedule contributed to school absences or tardiness on Child’s part.

¶27 We thus conclude that the district court’s factual findings fail to support its conclusion that Sunday overnights with Lay did not accommodate Child’s school attendance at least as well as Sunday overnights with Gustafson. Moreover, at oral argument before this court, Gustafson could not identify any specific findings or record evidence that could support the court’s decision that Child spending Sunday nights with Gustafson better accommodated Child’s school attendance; thus, we cannot conclude that the court impliedly relied on any particular evidence to so conclude.[4] See generally Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (“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.” (quotation simplified)). The district court specifically found that Child was “doing well” under the existing parent-time schedule, so therefore its decision to change Lay’s alternating weekend parent-time from three to two overnights is inconsistent with that finding and requires explanation so that we can ensure on review that that decision was rationally based. See id.; see also In re S.T., 928 P.2d 393, 398 (Utah Ct. App. 1996) (stating that the trial court’s findings must include enough detail “to clearly show the evidence upon which they are grounded”).

¶28 Our conclusion in this regard also leads us to agree with Lay that the district court’s findings were inadequate to disclose the steps by which the court reached its ultimate conclusion that Lay was not entitled to midweek parent-time during the school year. It is possible that the district court so concluded because Lay did not have midweek parent-time under the existing schedule or because the court did not want to increase the number of Child’s transfers in light of her need for stability. But the court did not provide any such explanation. And given that the court ordered a change to the existing schedule for Sunday nights—a change that is inconsistent with its finding that Child was “doing well” under that schedule—we are unable to simply infer the court’s reasoning or its evidentiary basis for denying midweek parent-time. Accordingly, we conclude that the district court’s decisions to adjust Lay’s weekend parent-time and to deny him midweek parent-time are not supported by adequate findings.

CONCLUSION

¶29 The district court did not err in declining to adopt Lay’s proposed interpretation of the statute providing for an optional parent-time schedule. The district court’s factual findings, however, do not contain sufficient detail for us to ensure that its discretionary determination regarding the parent-time schedule was rationally based. Accordingly, we remand this case with the instruction that the district court make additional findings with respect to (1) whether Lay’s weekend parent-time during the school year should include a Sunday overnight and (2) whether Lay should have midweek parent-time during the school year.

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

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[1] 1. In the alternative, Lay contends that the court should have adopted the parent-time schedule under Utah Code section 30-3-35.1 because it is in Child’s best interest. As we discuss below, infra ¶¶ 26–28, the court’s findings are not adequately detailed to permit meaningful appellate review. It is therefore premature for us to consider a challenge to the district court’s assessment of Child’s best interest.

Lay also alternatively contends that the district court’s factual findings related to section 30-3-35.1 are “wholly insufficient” and provide “no explanation” for its decision not to implement the schedule under that section. While we observe that district courts “are not required . . . to discuss all aspects of a case that might support a contrary ruling,” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258, because we are remanding this case for the entry of more detailed findings, we need not consider this argument further.

[2] In arguing that our interpretation would lead to absurd results, Lay also invokes the absurd consequences canon, an interpretive canon that shares some similarity with the absurdity doctrine but that applies under different circumstances. See Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶¶ 46–47, 357 P.3d 992 (Durrant, C.J., concurring) (drawing distinctions between the absurd consequences canon and the absurdity doctrine). “In applying the absurd consequences canon, we merely resolve an ambiguity by choosing the reading that avoids absurd results when statutory language plausibly presents us with two alternative readings.” Id. ¶ 47 (quotation simplified). We have no occasion to consider this canon here because Lay has not persuaded us that the word “may” in section 30-3-35.1 is ambiguous.

[3] Lay also contends that, regardless of whether the court abused its discretion or the findings are inadequate, the court’s decision was not in Child’s best interest. As with Lay’s alternative argument about Child’s best interest in connection with section 30-3-35.1, supra note 1, our consideration of Child’s best interest at this juncture is premature.

[4] In fact, Gustafson told this court that she would “almost welcome a remand” for the district court to elucidate its thinking.

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