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Tag: 379 P.3d 890

2023 UT App 137 – Lobendahn v. Lobendahn – petition to modify custody

2023 UT App 137  – Lobendahn v. Lobendahn

 

THE UTAH COURT OF APPEALS

MARCUS JAMES LOBENDAHN,

Appellant and Cross-appellee,

v.

LEEYEN MOEVAI LOBENDAHN,

Appellee and Cross-appellant.

Opinion

No. 20210278-CA

Filed November 16, 2023

Fourth District Court, Provo Department

The Honorable Thomas Low

No. 164400262

Luke A. Shaw and Jill L. Coil,

Attorneys for Appellant

Julie J. Nelson, Daniel Ybarra, and Alexandra

Mareschal, Attorneys for Appellee

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

concurred.

CHRISTIANSEN FORSTER, Judge:

 

¶1        Marcus James Lobendahn (Father) appeals the district court’s denial of his petition to modify the parties’ divorce decree. LeeYen Moevai Lobendahn (Mother)[1] also appeals the court’s order denying her request for attorney fees incurred in responding to Father’s petition to modify. We affirm the district court’s order in all respects.

BACKGROUND

¶2        The parties were married in 2008 in Hawaii. Following their marriage, the parties moved to Utah and had two children— a daughter and a son (Son). In May 2015, Father moved to New Jersey for employment purposes, and Mother and the children followed a little while later. Shortly after Mother arrived in New Jersey, Father asked Mother for a divorce and filed for a divorce in Utah. Mother suggested that the children live with Father in the marital apartment while she rented a separate place and cared for the children while Father was at work. Father declined the offer and advised Mother that she and the children should move back to Utah, which they did. The parties’ divorce was finalized through a stipulated decree in Utah in early 2016 while Father still lived in New Jersey. The decree awarded the parties joint legal and physical custody of the children and Father parent-time under section 30-3-37 of the Utah Code with additional time during certain breaks.

¶3        Father moved back to Utah in the fall of 2016, and Mother allowed him parent-time every other weekend, similar to the schedule provided in section 30-3-35 of the Utah Code. In 2017, Father filed a petition to modify based on his relocation, and the parties resolved the petition through a stipulation modifying the decree of divorce. Based upon their agreement, Father would exercise parent-time as provided in section 30-3-35 until he moved within fifteen miles of Mother’s residence in Utah County, at which time his parent-time would increase pursuant to the schedule described in section 30-3-35.1, with some modifications. Father did not move within fifteen miles of Mother and the children at that time but remarried and moved to his wife’s residence in Salt Lake County. Even so, Mother allowed Father to exercise increased parent-time.

¶4      Mother sent a letter to Father in March 2018, notifying him of her intent to remarry and relocate with the children to Washington state. A few weeks later, Father notified Mother that he had signed a lease for an apartment in an area within fifteen miles of her residence in Utah County. Father continued to reside with his wife in Salt Lake County but would stay at the apartment when exercising parent-time with the children. Thereafter, Father filed a motion to restrain Mother from relocating, which the court denied, concluding that Mother’s move to Washington was in the best interest of the children. Mother remarried and moved to Washington in the summer of 2018.

¶5        While the parties were litigating Mother’s relocation, Father filed a second petition to modify. Father argued that he should be awarded primary physical custody of the children, who should live with him in Utah, and that Mother should be awarded parent-time under section 30-3-37 of the Utah Code. Father’s petition alleged that Mother had not been entirely truthful in describing the reasons for her relocation, that the children struggled in school upon moving to Washington, that Mother had been evasive about Father’s proposal to relocate to Washington to live close to the children, that Mother interfered with his parent-time since she had relocated, that Mother had been uncooperative in planning the children’s travel, and that Mother interfered with Father’s participation in Son’s baptism. Father also requested that a custody evaluator be appointed to make recommendations about what custodial arrangement would be in the best interest of the children, and the court granted that request.

¶6        The court appointed a custody evaluator (Evaluator), who began her evaluation in July and completed her work in November 2019. Evaluator interviewed the parties, their respective spouses, and Son, and she observed the children with both parents in their homes. At the time Evaluator conducted her evaluation, the children had lived in Washington with Mother for approximately one year. Evaluator delivered her recommendations to the parties at a settlement conference in April 2020, and completed her report five months later. Evaluator recommended that the parties continue to share joint physical and legal custody but that the children should relocate back to Utah. Evaluator recommended that if Mother did not return with the children, Father should have primary physical custody with statutory visitation for Mother. Later, at the trial on Father’s petition to modify, Evaluator advised that in her opinion—while both parents shared a close, positive relationship with the children and Mother had been the children’s primary caretaker for their entire lives—Mother did not truly support the children’s relationship with Father and the broad benefit of having access to Father outweighed the potential risk that a second relocation adjustment would be hard for the children. And she acknowledged that her relocation recommendation was based on her understanding that if the court ordered the children to relocate back to Utah, Mother would move back to Utah as well. Evaluator also conceded that by the time of trial, the children had lived in Washington for two-and-a-half years and that the delay between her evaluation and the trial could be significant. She agreed that “some of the facts that [she] relied on to make [her] determinations are now out of date.” She agreed that the children had probably changed and matured emotionally, psychologically, socially, and physically and that she had not had any contact with the children in more than a year and a half.

¶7        The court held a trial in March 2021 on Father’s petition to modify. Father’s petition was based on his contention that Mother’s move to Washington was selfishly motivated and harmed the children and that Mother had failed to facilitate Father’s role in the children’s lives and had excluded him from decision-making. Father testified about particular instances that, in his view, demonstrated Mother’s inability to co-parent and unwillingness to facilitate his role in the children’s lives. These included:

·         Son’s difficulty in school after the relocation and resultant disputes between the parties about whether to move him to a different classroom or have him tested for autism;

·        Son’s baptism in July 2019 and Father’s role in that event;

·        Mother’s apparent unwillingness to commit to living in Washington for the long term when Father was contemplating relocating there to be closer to the children;

·         Father’s participation in obtaining passports for the children so they could visit Mother’s ill father in Tahiti and Father’s contention that he did not intend to use these circumstances to coerce Mother into moving back to Utah; and

·         Mother’s alleged interference with Father’s visitation in February 2019.

·         ¶8        Mother testified to her version of the events and issues raised in Father’s testimony. Specifically, Mother testified:

·         That her decision to move from Utah was not to get herself and the children away from Father;

·        That she addressed Son’s difficulties in school following the relocation and how she wanted to have him tested for autism as recommended by his teacher but Father did not want the school to do any testing;

·         That Son’s school difficulties had mostly been resolved by the time of trial and that his recent less-than-stellar report card had more to do with remote learning than continued transition issues;

·         That given Son’s his age and stage of development, she believed it was appropriate to let him choose who would baptize him and where the baptism would take place and that Mother never interfered with Father’s wish to perform the baptism;

·         That Father caused a big scene before the baptism ceremony, which Son overheard, and Father demanded that he perform both the baptism and the confirmation;

·        That when Father considered moving to Washington and asked Mother to commit to remaining in the area, Mother did not think it was wise to promise Father that she would live in Washington forever because of the constant litigation she had already experienced over custody;

·         That the conflict that arose when Mother tried to obtain passports for the children in 2018 to visit her father in Tahiti after he had been diagnosed with cancer required her to file an order to show cause in December 2019 to compel Father to complete an affidavit and sign the passport applications, which he eventually did, but the children’s passports did not arrive in time for them to travel to Tahiti before Mother’s father passed away; and

·         That Father does a good job keeping up with and supporting the children’s interests.

¶9        At the conclusion of the trial, Mother asked the court to award her attorney fees.

¶10      In its written ruling issued after the trial, the court addressed Mother’s alleged failure to facilitate Father’s role in the children’s lives. Regarding Son’s baptism, the court found that Father had adduced no evidence demonstrating that Mother had broached the subject of baptism with Son in an attempt to create contention, or that Son had suffered any psychological harm from Mother’s actions. The court found, however, that the evidence admitted “demonstrates poor judgment on Father’s part,” that the only evidence of conflict surrounding the baptism was created by Father himself, and that the “only harm [Son] suffered was having to overhear Father yelling at [Son’s] bishop . . . inside the closed bishop’s office.”

¶11 Regarding the circumstances surrounding obtaining the children’s passports, the court was extremely critical of Father’s actions. Among other things, it found that Father’s actions were “senselessly cruel” and “among the most reprobate [the] court [had] encountered in a domestic relations case.” It faulted Father for using “the imminent death of a grandparent as a bargaining chip” and found that his behavior “demonstrates that his control over the children’s welfare must be reduced.”

¶12 The court also addressed Mother’s move to Washington, finding that the move did not cause the children harm or interfere with the parties’ ability to co-parent. Specifically, the court determined that both parents had chosen to live in places that did not prioritize proximity to the other parent—Mother moving to Washington to remarry and attend school after living in Utah for more than three years and Father remaining in New Jersey while Mother and the children returned to Utah and then moving to Salt Lake County with his wife rather than moving to a place within fifteen miles of the children (until Mother indicated she would be relocating). Moreover, the court noted that although Father is “untethered,” in that he is employed for a company that allows him to work from home and he could live and work anywhere, he is unwilling to move unless Mother commits to remain in Washington, which she had not done because she eventually wants to work as a pharmacist and may need to move for that career. The court found that Father’s decision to remain in Utah despite his ability to move reflects his choice not to live close to the children.

¶13      As far as the children’s best interest in staying in their current placement, the court found that Mother’s spouse has an extensive family network with whom the children have grown close and share a Pacific Islander heritage. Besides a strong family connection, the children also have close friends in the area, which the court found to be good for the children. And due in part to the length of time spent in Washington, the court found that “[o]verall, the children’s social network is stronger in Washington” than in Utah. The court also determined that no evidence supported Father’s assertion that the move to Washington caused Son to have behavioral issues at school. If anything, Father’s refusal to allow Son to be tested for autism or to allow him to change classrooms when he started having trouble has potentially caused continuing suffering for Son and created stalemates between the parents that Father chose to address in the courts. Father’s proclivity for litigation, which he can afford and which the court found bordered on harassment, caused harm to the children, created unpredictability, and demonstrated less-responsive parenting.

¶14      The court found that both Mother and Father have capacity to parent and to co-parent and have excellent parenting skills. But the court determined that Mother “exhibits greater respect of Father’s role than Father does of Mother’s.” Specifically, the court found that “[w]hen the children ask Mother a question on which Father should be consulted, she tells them ‘I’ll talk to your dad about that and we’ll decide together.’” The court recognized that the children’s bond with Father is very strong, but it agreed with Evaluator that “the children are more bonded with Mother in light of being under her primary care for their entire lifetimes.”

¶15      The court analyzed the custody factors found in section 30­3-10(2) of the Utah Code and made the following determinations:

·        Both parents demonstrate an appropriate understanding of, and responsiveness to, the developmental needs of the children, but Mother’s openness to the advice and assistance of professionals exceeds Father’s.

·        Both parents have an excellent capacity to parent and co-parent and endorse the other’s role in the presence of the children. Except for Mother’s use of inappropriate terms in some of her written communication (which the court believed was on the mend), “both parents appropriately communicate with the other, encourage the sharing of love and affection, and exhibit a willingness to allow frequent and continuous contact with the other parent.” However, Mother exhibits a greater respect for Father’s role in the children’s lives than Father does for Mother’s.

·         Father has relinquished both custody and parent-time in the past.

·         Both parents desire custody and time with the children. Mother has been the primary caretaker and Father has made it a priority to maintain good contact with the children. But “Mother’s commitment to the care and custody of the children exceeds Father’s.”

·         Both parents have always cared for the children financially and are financially responsible, but “Mother has expressed more constant and less evasive financial responsibility than Father.”

·         The children enjoy a strong social and familial network in Washington with their stepfather and his side of the family and have close friends there. The children also enjoy the close proximity of their stepmother and her family and their maternal aunt and grandmother in Utah. Overall, the children’s social network is stronger in Washington.

·         The children are more bonded to Mother because she has always been their primary caretaker.

·        The children have both benefitted and suffered from the sharing of parental responsibilities. Father is very involved and committed to his role. “But Father’s veto-power over decisions regarding the children’s health, education, and welfare” has prevented Son from being tested for autism, prevented Father from honoring Son’s preferences at his baptism, and “prevented the children from traveling to see their dying grandfather in Tahiti.”

·        The parents are generally able to cooperate with each other and make decisions jointly but struggle to reach agreement on significant decisions in the children’s best interest and these frequent stalemates harm the children. Specifically, the court noted that the parents could not communicate effectively to make Son’s baptism conflict-free and they could not agree on how to address Son’s difficulties in school after the relocation or obtain passports for the children. “Given her less affluent status, Mother usually surrenders in the face of disagreement because she cannot afford to take the matter further. Father, however, has substantial funds at his disposal, and has exhibited the ability and willingness to press his concerns in the courts.”

·         Both parents ensure that the children are protected from conflict, except for Father’s refusal to complete the passport paperwork to allow the children to travel to Tahiti, which harmed the children, and allowing Son to overhear the conflict over his baptism.

¶16      After weighing the evidence and the statutory factors, the court concluded that granting Father’s petition and relocating the children back to Utah would not be in their best interest. The court found that the children are doing well in their current circumstances and that they are primarily bonded with Mother as their primary caretaker. “Father has presented no evidence that removing primary custody from Mother would be in the children’s best interests. . . . [Rather,] doing so would be harmful to the children.” The court determined that “the children are happy in Washington, that the parties have successfully mitigated the effects of distance on parent-time, that Father continues to enjoy a healthy relationship and strong bond with the children, and that the current custody arrangement is working well.” The court noted that the trial evidence “establish[ed] that [Father] and Mother have been extraordinarily successful in managing the geographical distance between them,” “that the children do not grasp the gravity of the distance,” and that “all evidence indicates that the children are happy, thriving, and well-adjusted in the current circumstances.” The court found that none of the statutory custody factors favored a change in custody.

¶17 Accordingly, the court denied Father’s petition to modify custody and his request that he be awarded primary custody if Mother did not relocate to Utah. The court ordered joint legal custody to continue but awarded Mother final decision-making authority as to the children’s health, education, and welfare. It also ordered that Mother “should be designated as the parent with the sole legal right to determine the residence of the children.” The court denied Mother’s request for an award of attorney fees because (1) she presented no evidence of her need for such an award and (2) even though Mother had ultimately prevailed, Father’s petition was not frivolous because it had been supported by Evaluator’s recommendation for a change in custody. But the court then explained that it chose to disregard the custody evaluation because it was “outdated and fail[ed] to adequately address the evidence presented at trial.”

ISSUES AND STANDARDS OF REVIEW

¶18 Father now appeals the court’s denial of his petition to modify, including its decision to reject Evaluator’s recommendation. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 26, 505 P.3d 1136 (quotation simplified). We will not disturb a district court’s findings of fact unless they are clearly erroneous. See Robertson v. Robertson, 2016 UT App 55, ¶ 5, 370 P.3d 569. And “[a]lthough a district court is not bound to accept a custody evaluator’s recommendation, the court is expected to articulate some reason for rejecting that recommendation.” R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137.

¶19 Mother cross-appeals and challenges the court’s denial of her request for attorney fees. We review a district court’s attorney fee determination for an abuse of discretion. Jensen v. Jensen, 2009 UT App 1, ¶ 7, 203 P.3d 1020.

ANALYSIS

¶20 Father argues the district court erred in denying his petition to modify. Father’s challenge comprises two parts. First, Father takes issue with the court’s weighing of the evidence and its associated factual findings and conclusions. Second, Father challenges the court’s decision to reject Evaluator’s recommendation. We address each of Father’s arguments in turn. Lastly, we address Mother’s cross-appeal concerning the denial of her request for attorney fees.

I. The Evidence Supports the District Court’s Determination to Deny the Petition to Modify

¶21      Father’s first argument on appeal is that the district court ignored the evidence presented at trial that supported Father’s position that it was in the best interest of the children to move them back to Utah and that he should be awarded primary custody if Mother did not relocate with them. Father also argues that the court viewed the evidence presented from a biased perspective. In the context of determining custody, the district court is to analyze the best interest of the children through the custody factors outlined in section 30-3-10(2) of the Utah Code. Generally, it is within the court’s discretion to consider each custody factor and accord each factor the appropriate weight. See Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. The “court’s discretion stems from the reality that in some cases the court must choose one custodian from two excellent parents, and its proximity to the evidence places it in a more advantaged position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). Thus, a custody determination “may frequently and of necessity require a choice between good and better.” Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982).

¶22      While the district court is accorded discretion in weighing the statutory custody factors, “it must be guided at all times by the best interests of the child,” see Tucker, 910 P.2d at 1214, and it “must set forth written findings of fact and conclusions of law which specify the reasons for its custody decision,” see id. at 1215. “Whenever custody is contested, the district court must provide the necessary supporting factual findings that link the evidence presented at trial to the child’s best interest and the ability of each parent to meet the child’s needs.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 27, 414 P.3d 933.

¶23      Moreover, the factual findings of the district court “will not be disturbed unless they are clearly erroneous” by being “in conflict with the clear weight of the evidence.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (quotation simplified). And “the existence of conflicting evidence is not sufficient to set aside a [district] court’s finding.” Bond v. Bond, 2018 UT App 38, ¶ 6, 420 P.3d 53 (quotation simplified). Rather, “to successfully challenge a [district] court’s factual findings on appeal, the appellant must overcome the healthy dose of deference owed to factual findings by identifying and dealing with the supportive evidence and demonstrating the legal problem in that evidence, generally through marshaling the evidence.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890 (quotation simplified).[2] Thus, a party challenging the sufficiency of the evidence to support a custody decision will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal. See State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645. In addition, a district court “may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

¶24      On appeal, Father asserts that the district court ignored evidence that was presented to Evaluator and to the court at trial. But on appeal, Father has not wrestled with the evidence that supports the court’s conclusion that most of the custody factors favor Mother, and he has made no attempt to marshal the evidence that supports the court’s factual findings. Father “clearly views the evidence as compelling a different outcome, but it is not within our purview to engage in a reweighing of the evidence, and [Father] has not demonstrated that the evidence underlying the [district] court’s findings is insufficient.” See id. ¶ 9 (quotation simplified). We address Father’s specific challenges to the court’s conclusions below.

A.        Father’s relinquishment of parent-time with the children by voluntarily choosing not to live close to them

¶25      Father complains that the district court misunderstood and ignored the evidence when it determined that Father had made decisions that minimized his parent-time. But Father has not addressed the evidence the court chose to credit nor demonstrated how that evidence was insufficient for the court to conclude that Father had not prioritized living close to the children to maximize his parent-time. That is, the court found the following evidence convincing:

·         While the family lived in New Jersey in 2015, and after Father announced he wanted a divorce, Mother offered to move out of their apartment so the children could remain with Father. Father declined this offer and advised Mother to return to Utah with the children.

·         Father remained in New Jersey for over a year before moving back to Utah.

·         After the parties mediated a settlement in August 2017 wherein Father could exercise more parent-time if he moved within fifteen miles of Mother’s residence, he did not do so. Instead, Father remarried in 2018 and moved to his wife’s residence in Salt Lake County (Mother’s residence was in Utah County).

·         Father rented an apartment within fifteen miles of Mother’s residence in Utah County only after she had announced her intention to relocate to Washington.

·        Father is employed by a company that allows him to work from home and his wife does not work outside the home, so Father’s employment does not necessarily tie him to Utah. Father has even shopped for houses in Washington but requires a commitment from Mother that she will remain there long term before he will move.

·        Evaluator opined that despite Father’s valid professional and financial motives for staying in New Jersey and then in Utah, Father failed to capitalize on the opportunity for more frequent parent-time by living close to the children.

¶26 Father appears to fault the court for not considering dispositive his testimony that he sought and exercised more than the minimum parent-time once he returned to Utah in 2016. Father asserts that this evidence disproves the court’s determination that Father had not prioritized his time with the children. But “Father [doing] what was within his rights . . . to exercise the expanded parent-time” was not persuasive to the court given the evidence listed above. And Father has not challenged any of the factual findings that support the court’s conclusion that he did not make choices for his living situation to be closer to the children. Father simply challenges how the court considered the evidence that supports his position.

¶27 The existence of conflicting evidence in the record is not sufficient to set aside a district court’s findings. See Nebeker v. Orton, 2019 UT App 23, ¶ 16, 438 P.3d 1053. “The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” Kimball, 2009 UT App 233, ¶ 20 n.5 (quotation simplified). The district court’s “mission” is “to consider and weigh all the conflicting evidence and find the facts.” Id. Thus, even though “contrary facts might have been found from all the evidence,” this court defers to the district court’s “pre-eminent role as fact-finder,” and we “take the findings of fact as our starting point, unless particular findings have been shown . . . to lack legally adequate evidentiary support.” Id. Because Father has not directly challenged any of the court’s subsidiary findings supporting its determination that Father made decisions that minimized, rather than maximized, his parent-time, we will not reweigh the evidence.

B.        The circumstances surrounding Son’s baptism

¶28      Father complains that the issue surrounding Son’s baptism “is an issue of legal custody . . . [and] should [have been] discussed between the parents before decisions [were] made.” Father asserts that the district court committed legal error when it failed to rule that a decision about who will perform a child’s baptism is a major parenting decision that should not be left up to a child. Father also takes issue with the court crediting Mother’s testimony about the dispute that occurred before the baptism— and not Father’s testimony that he did not agree with the accounts that he was yelling or losing his cool—to determine that the circumstances of the event demonstrated poor judgment on Father’s part and that Father’s actions caused Son harm.

¶29      On the facts of this case, we cannot fault the district court for its determination that who performs the various parts of a child’s religious ceremonies within the shared religious tradition of both parents (as opposed to whether the ceremonies will be performed at all) is not a major parenting decision requiring the agreement of both parents. Father cites no authority for the proposition that the decision about who performs a religious ceremony is equivalent to decisions concerning a child’s medical care, school attendance, or overall religious practice. Nor has Father challenged any of the factual findings that support the court’s conclusion that Father had failed to demonstrate that Mother’s decision to allow Son to have “input regarding his own baptism was an unhealthy or unwise parenting decision.” Thus, Father cannot show the court erred in considering this decision to be something other than a major parenting decision. And while we understand that Father is unhappy with the court’s conclusion that Father’s behavior before Son’s baptism showed poor judgment on his part rather than ineffective co-parenting on Mother’s part, the evidence in the record supports the court’s conclusion that Mother’s parenting regarding the baptism was not problematic, and we will not reweigh the evidence.

C.        The circumstances surrounding having Son tested for autism

¶30 Father next takes issue with the court’s findings about whether the children have benefitted from the parties’ sharing of parenting responsibilities and about the abilities “of the parents to give first priority to the welfare of the [children] and reach shared decisions in the [children’s] best interest.” See Utah Code § 30-3-10.2(2)(b). Among other things, in determining that Mother should be designated the final decision-maker as to the children’s health, education, and welfare, the court found that Father exhibited an “injudicious use of his veto power over decisions relating to the children’s health” and had “evidenced [a] tendency to act contrary to the children’s interests and to use those interests as leverage against Mother.” But Father’s complaint that the evidence demonstrated that he suggested they not rush into testing Son for autism rather than that he objected to the testing does not diminish the court’s determination that “Father’s veto-power over decisions regarding the children’s health, education, and welfare [] prevented [Son] from being tested for autism at a time when educational professionals believed the test would be helpful to address his needs.” Thus, we agree with Mother that “[e]ven if the court should have used the word ‘delayed’ rather than ‘prevented’” in its finding, Father has not shown how the court’s decision to award Mother final decision-making authority was an abuse of discretion or legal error.

D.        The circumstances surrounding obtaining the children’s passports

¶31 Father next challenges the court’s view of the circumstances surrounding Mother’s attempts to obtain passports for the children in time to visit her cancer-stricken father in Tahiti in 2019. Father argues that the court’s pointed and direct comments about this incident are overly aggressive and suggest that this evidence was the “ultimate basis for [the court’s] ultimate conclusion.” Father asserts that he did not interfere with the passport applications or attempt to condition his facilitation of the passports upon Mother’s promise to return to Utah and suggests that Mother was at fault for not obtaining the passports in time. But, once again, on appeal, Father selectively highlights the evidence he submitted at trial, asserts that the evidence supports a different outcome, and criticizes the court for not crediting his testimony rather than Mother’s. It is not this court’s “purview to engage in a reweighing of the evidence.” Shuman v. Shuman, 2017 UT App 192, ¶ 9, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018). In fact, when “a foundation for the court’s decision exists in the evidence, [we] may not engage in a reweighing of the evidence.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. On appeal, this court will look to whether the district court’s decision is supported by the evidence and in cases where the appellant has “merely point[ed] to evidence that might have supported findings more favorable to them” rather than “identify[ing] flaws in the evidence relied on by the [district] court that rendered” the court’s findings clearly erroneous, we will not reverse. Shuman, 2017 UT App 192, ¶ 8 (quotation simplified). Because the court’s decision is supported by the record and Father has identified no fatal flaws in the evidence upon which the court relied, we will not reweigh the evidence.

E.         The reasons and representations given for Mother’s relocation to Washington

¶32 Father next challenges the court’s view of Mother’s relocation. Father appears to attack Mother’s honesty and credibility by asserting that the reasons she gave for her move to Washington were not true. But Father did not appeal the court’s order approving Mother’s relocation, and by not directly challenging the district court’s findings about Mother’s move, Father has failed to persuade us that the court’s determination that “Mother’s move to Washington was not contrary to the children’s interests” was an abuse of discretion or legal error since it “is undisputed that the children are thriving and happy there”.

F.         The district court’s custody factor findings

¶33      Father challenges the court’s determination that evaluation of the statutory custody factors favored denying his petition to modify and awarding Mother more decision-making authority. Specifically, Father argues that the court’s analysis of the custody factors is not supported by the evidence with regard to (1) the parents’ commitment to the care and custody of the children, (2) not disrupting a custody arrangement where the children are happy and well-adjusted in their current circumstances, (3) the respect each parent affords the other parent’s role, (4) the parents’ ability to make decisions jointly, and (5) whether it was better to remain in Washington versus returning to Utah.

¶34      But Father does not tie his argument to a particular custody factor or explain how the court’s findings in these areas are critically important to the overall custody determination. Nor does Father explain how the court’s findings on these factors are against the clear weight of the evidence. “Generally, it is within the [district] court’s discretion to determine . . . where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “While the district court is accorded discretion in weighing these factors, it must be guided at all times by the best interests of the child.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 30, 505 P.3d 1136 (quotation simplified).

¶35      Father’s argument that the court disregarded the evidence that supports his preferred evaluation of the statutory custody factors is not persuasive. It is not this court’s role to reweigh the evidence to see if we would reach a different conclusion from that of the district court. Father has not demonstrated that the court’s evaluation of the custody factors lacks evidentiary support or that any finding regarding each factor is against the clear weight of the evidence. Given this, we cannot say that the court abused its discretion or committed legal error in concluding that “none of the factors favor a change in custody” or that “[t]he critically important factors—bonding and continuity of placement— strongly favor leaving primary custody with Mother.”

¶36 In sum, Father has not directly challenged any of the court’s specific findings supporting the determinations listed above. Indeed, he simply highlights evidence he claims the district court ignored. Without a direct challenge to any specific finding, we consider the district court’s findings as established and will not reweigh the evidence.

II. The District Court Did Not Abuse Its Discretion When It
Rejected Evaluator’s Recommendation

¶37      Father contends that the district court erred in rejecting the recommendations and testimony of Evaluator. “Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation simplified). “This is because . . . the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony . . . even if that testimony comes from an expert witness.” Woodward v. Lafranca, 2016 UT App 141, ¶ 13, 381 P.3d 1125 (quotation simplified), cert. denied, 384 P.3d 570 (Utah 2016). These principles apply to a court’s assessment of the opinions offered by a custody evaluator. Indeed, a “district court is not bound to accept a custody evaluator’s recommendation,” but if a court chooses to reject the evaluator’s opinion, it “is expected to articulate some reason for” doing so. See R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137. In this case, while the court could have perhaps more fully explained its reasons for rejecting Evaluator’s recommendations, in our view the court had sufficient reasons for doing so and adequately explained itself.

¶38      Father first contends that the district court erroneously rejected Evaluator’s recommendations because the court had unreasonable expectations of Evaluator, that it was incumbent on the court to solicit further information from Evaluator through questioning at trial if the court thought her report was insufficient, and that the court should have accepted Evaluator’s recommendation without question because the court did not contest her qualifications and admitted her report into evidence without objection. But the record does not support Father’s complaints, and he does not support his argument with legal citation. The court invited Evaluator to augment her report at trial by “putt[ing] in context or explain[ing] or add[ing] flesh to the bones of the report,” and the court dialogued at length with Evaluator during direct questioning and cross-examination. Father’s complaint that the court discouraged additional testimony or additional explanation from Evaluator because it stated during her examination that “[n]ow that I have received the report, if she’s just going to read it, maybe there’s more effective ways for her to spend her time” is not compelling, especially because Father’s counsel agreed to “expedite the process a bit” by then focusing on Evaluator’s recommendations. Thus, Father does not persuade us that the court abused its discretion or committed legal error in choosing not to ask Evaluator further questions.

¶39      Next, Father takes issue with the court’s decision to reject Evaluator’s recommendation because it was “outdated” at the time of trial.[3] But Father fails to acknowledge that while all the statutory custody factors are equally important, “[a]t the critically important end of the spectrum, when [a] child is thriving, happy, and well-adjusted, lies continuity of placement.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Utah law requires courts to “give substantial weight to the existing joint legal . . . custody order when the child is thriving, happy, and well-adjusted.” Utah Code § 30-3-10.4(2)(c). And here, the court relied heavily on continuity of placement as the basis for rejecting Evaluator’s report. The court found that the evidence presented at trial was “virtually unanimous” in establishing that the children were “happy, well-adjusted, and thriving under [their] current arrangement” and it rejected Evaluator’s contention that relocating the children back to Utah would not be that big of a deal because “[w]e don’t have a child . . . moving into a different developmental phase or a child with specific developmental needs.” Because the court heard the evidence on both sides and it explained why it was rejecting certain evidence, the court did not abuse its discretion or commit legal error. Thus, we see no infirmity in the court’s determination that Evaluator’s report was outdated by the time of trial.

¶40      We are, of course, sensitive to the emotional undercurrents giving rise to Father’s challenges on appeal. This appears to have been a very difficult case for both parties—both of whom love and care for their children. And we acknowledge the district court’s determination that both “parents are well suited to parent the children [who] are surrounded by an unusual amount of love on both sides of the family. . . . All children everywhere deserve to be loved as much as these children are.” But ultimately, the fact that Father disagrees with the court’s decision to deny his petition to modify does not render the district court’s findings inadequate or unsupported by the evidence, nor does it require an outright grant of custody in his favor. See Shuman v. Shuman, 2017 UT App 192, ¶ 10, 406 P.3d 258, cert. denied, 412 P.3d 1257 (Utah 2018).

¶41 In sum, Father has failed to meaningfully address the evidence supporting the district court’s findings or persuasively demonstrate that those findings are against the clear weight of the evidence or legally erroneous. We therefore affirm the district court’s denial of Father’s petition to modify custody and its associated adjustment to the parties’ legal custody arrangement.

III. Mother’s Attorney Fees Request

¶42 Finally, we address Mother’s challenge to the district court’s denial of her request for attorney fees incurred in responding to Father’s petition to modify. Mother asserts entitlement to fees under two different statutes, but we reject both of her arguments.

¶43 First, Mother claims that the court should have awarded her fees pursuant to a statute authorizing a court to award fees in cases where the “action” was “filed or answered frivolously and in a manner designed to harass the other party.” See Utah Code § 30-3-10.4(5). The court determined that whether the litigation was frivolous or filed with the intent to harass was “a very close call” but that Evaluator’s change-of-custody recommendation provided Father with at least some basis to file his petition. We agree. The district court has discretion to determine whether an action was filed frivolously or with an intent to harass, and we will not substitute our judgment for that of the district court unless the action it takes is so flagrantly unjust as to constitute an abuse of discretion. See Wall v. Wall, 700 P.2d 1124, 1125 (Utah 1985). We discern no abuse of discretion in the court’s determination not to award fees under section 30-3-10.4(5) of the Utah Code.

¶44      Second, Mother claims that the court should have awarded her fees under a different statute, one that authorizes courts to order one party to pay fees to the other in order “to enable the other party to prosecute or defend the action.” See Utah Code § 30­3-3(1). The court denied Mother’s request for fees under this statute based on its determination that Mother did not produce evidence of her financial need. When reviewing requests for attorney fees in divorce proceedings, “both the decision to award attorney fees and the amount of such fees are within the [district] court’s sound discretion.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 10, 176 P.3d 476 (quotation simplified). However, the party to be awarded attorney fees under this statute has the burden to prove (1) that the payee spouse has a financial need, (2) that the payor spouse has the ability to pay, and (3) that the fees requested are reasonable. See Dahl v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276.

¶45 Here, Mother argues that the district court erred in concluding that an award of fees was not warranted when it determined that “Mother did not adduce any evidence of her need for an award of attorney’s fees under section 30-3-3(1).” Mother contends that there was evidence before the court to demonstrate her need and Father’s ability to pay. Specifically, Mother points to the parties’ stipulated order from 2017 that showed the parties’ incomes and the custody evaluation that reported the parties’ incomes in 2020. But Mother did not point to this evidence in connection with her fee request, and we do not think it is incumbent on a district court to comb through the record to find evidence of a party’s need. Rather, the party to be awarded fees has the burden to submit that evidence or at least point the court to that evidence and ask that the court utilize that evidence to determine need.

¶46      Accordingly, we affirm the district court’s conclusion that fees were not warranted in this case.

CONCLUSION

¶47      We conclude that the evidence supports the district court’s findings and conclusions that relocating the children back to Utah would not be in the children’s best interest and supports the denial of Father’s petition to modify. We further conclude that the district court did not abuse its discretion in denying Mother’s request for attorney fees. Affirmed.

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


[1] Mother has remarried and has adopted her husband’s surname, Sahim.

[2] As this court stated in Kimball v. Kimball, 2009 UT App 233, 217

P.3d 733:

After all, it is the [district] court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts. No matter what contrary facts might have been found from all the evidence, our deference to the [district] court’s pre-eminent role as fact-finder requires us to take the findings of fact as our starting point, unless particular findings have been shown, in the course of an appellant’s meeting the marshaling requirement, to lack legally adequate evidentiary support.

Id. ¶ 20 n.5.

[3] In addition to rejecting Evaluator’s report for being outdated, the court rejected the report because it “fail[ed] to adequately address the evidence presented at trial.” Specifically, the court noted that the report “mentions but glosses over Father’s sending the children away from New Jersey, choosing several times thereafter not to live near the children (including now), preventing them from traveling to Tahiti, and declining to engage [Son] regarding his baptism.” Father takes issue with the court’s reasoning on each point, arguing that the court “did not agree with [Evaluator’s] expert view and analysis of the evidence.” But his argument is limited to merely explaining his view of why each of these events happened and why Evaluator did not find them important. Father does not show that the court’s view was unsupported by the evidence. And regardless of these stated reasons, the court’s decision to reject the report because it was outdated was entirely proper.

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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

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[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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2019 UT App 83 – Nave Free v. Free – modification of child support

2019 UT App 83 – Nave Free v. Free

THE UTAH COURT OF APPEALS

LINDA LEE NAVE-FREE, Appellee,

WENLOCK DUANE FREE JR., Appellant.

Opinion
No. 20170751-CA
Filed May 16, 2019

Fourth District Court, Heber Department
The Honorable Jennifer A. Brown

No. 134500083

Russell W. Hartvigsen, Attorney for Appellant
Aaron D. Banks, Attorney for Appellee

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

MORTENSEN, Judge:

¶1        After nearly twenty-five years of marriage, Wenlock Duane Free Jr. (Husband) and Linda Lee Nave-Free (Wife) divorced. They agreed to a division of their assets and an upward deviation in the amount of child support based on the medical needs of two of their children. Wife eventually remarried and began renting out a house she was awarded in the divorce. Alleging a substantial change in material circumstances, Husband petitioned to modify the amount of child support he was required to pay. The trial court denied the petition, and Husband appeals. We affirm.

BACKGROUND

¶2        Wife and Husband were married in 1990 and had four children together. They separated in 2012 and divorced in August 2013. The parties did not use attorneys in their divorce negotiations. Pursuant to the divorce decree, Wife was awarded a house in Heber City, Utah, and Husband received a house in Pleasant Grove, Utah. Frequent flier miles and the proceeds of a sale of land in Eureka, Utah, were to be divided equally. Wife also received $24,050 as compensation for any interest she might have in business ventures developed during the course of the marriage.

¶3        The parties agreed that Wife was to receive $7,629 per month as support for the three minor children. The amount decreased to $6,586 per month when the first child reached eighteen years of age. See Utah Code Ann. § 78B-12-219 (LexisNexis 2018).[1] The amount further decreased to $5,043 per month when the second child reached eighteen, and it was to remain at that amount until April 2023. The amount of child support represented an upward deviation of about $4,558 per month from the guidelines. At the time of the divorce, the parties agreed that the “increased amount [was] based on the ongoing medical needs of two of the children born to this marriage. Both parties . . . determined this amount to be fair and necessary.”[2] At trial, Wife clarified that the increased amount was designated for the “medical needs” of the two children in a broad sense, eclipsing actual expenses:

[The deviated amount allowed Husband] to go and do his thing, and I needed to maintain raising and taking care of the children, medical needs, corresponding doctor’s appointments . . . and accommodating . . . raising children, which then therefore entailed me not having the right to go and pursue a career where I could . . . travel and earn more money. . . . [I]t was so that I would create a home base, so that I would have a solid foundation for these kids. Be there. Raise them. Create that sense of family. You know, and not put my career first, but put my children first.

¶4        In November 2014, Husband filed a petition to modify the divorce decree, alleging that substantial changes merited an adjustment in the amount of child support he was required to pay. Specifically, he argued that Wife’s income had substantially increased because she had remarried and moved out of the house in Heber City and subsequently received rental income from that property.[3] Husband contended that, by this move, Wife had “voluntarily completely changed her circumstances and those of the parties’ minor children.” Husband testified that his income had “gone down just slightly” since the divorce decree was entered.

¶5        At trial, in addition to arguing that Wife’s income and relative wealth had substantially increased, Husband asserted that the medical expenses of the two oldest children had substantially changed. To support his claim of a substantial change in the medical needs of the children, Husband offered evidence that Wife’s out-of-pocket expenses relating to the children’s medical needs had decreased.

¶6        The trial court determined that there had been no material changes in Wife’s income or in her relative wealth. Regarding the amount of child support, the trial court concluded that the deviated amount was “compensation for the ongoing medical needs of the two oldest children and compensation for the marital estate acquired over 23 years of marriage.”[4] The trial court, having concluded that there had been no substantial changes, denied Husband’s petition. It further awarded attorney fees to Wife as the prevailing party. Husband appeals.

ISSUES AND STANDARDS OF REVIEW

¶7        The first issue on appeal is whether the trial court erred in determining Wife had not benefited from a substantial change in income when she started receiving rental income after the divorce. The second issue is whether the trial court erred when it determined that Wife had not experienced a material change in relative wealth when she remarried after the divorce and began living in a two-income home. The third issue is whether the trial court erred when it concluded that there had been no substantial changes in the medical needs of the children to warrant a modification of child support.[5]

¶8        These three issues share a common standard of review. “We generally review a [trial] court’s determination to modify or not to modify a divorce decree for an abuse of discretion. However, we review for correctness any challenges to the legal adequacy of findings of fact or to the legal accuracy of the [trial] court’s statements underlying such a determination.” Fish v. Fish, 2016 UT App 125, ¶ 5, 379 P.3d 882 (cleaned up). Furthermore, a trial “court’s determination regarding whether a substantial change of circumstances has occurred is presumptively valid, and our review is therefore limited to considering whether the [trial] court abused its discretion.” Earhart v. Earhart, 2015 UT App 308, ¶ 5, 365 P.3d 719.

ANALYSIS

I. Change in Wife’s Income

¶9        Husband’s primary contention is that because Wife’s income substantially increased, the amount of child support should be adjusted in his favor. The Utah Child Support Act (Act), see generally Utah Code Ann. §§ 78B-12-101 to -403 (LexisNexis 2018), allows a parent to petition the court to adjust the amount of child support for, among other circumstances, “material changes of 30% or more in the income of a parent,” id. § 78B-12-210(9)(b)(iii). “However, to succeed on a petition to modify, the moving party must first show that a substantial material change of circumstance has occurred since the entry of the decree and second, that the change was not contemplated in the decree itself.” Diener v. Diener, 2004 UT App 314, ¶ 7, 98 P.3d 1178 (cleaned up). Because Husband has failed to show that a material change has occurred, we limit our analysis to the first prong.

¶10      “An appellant [who] fails to devote adequate attention to an issue is almost certainly going to fail to meet [his] burden of persuasion.” Bank of Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196. In this regard, Husband “must cite the legal authority on which [his] argument is based and then provide reasoned analysis of how that authority should apply in the particular case, including citations to the record where appropriate.” Id. “[Husband] cannot carry [his] burden by simply listing or rehashing the evidence and arguments [he] presented during trial.” Taft v. Taft, 2016 UT App 135, ¶ 43, 379 P.3d 890. Nor can he “persuasively carry [his] burden by merely pointing to evidence that might have supported findings more favorable to [him]; rather, [Husband] must identify flaws in the evidence relied on by the trial court that rendered the trial court’s reliance on it, and the findings resulting from it, clearly erroneous.” Id.; accord Shuman v. Shuman, 2017 UT App 192, ¶ 8, 406 P.3d 258. Thus, Husband “has the burden of showing a substantial change in circumstances. It is insufficient to show that there has been some change, without a showing that such change was substantial.” Diener, 2004 UT App 314, ¶ 7 (cleaned up). Under this standard, Husband has failed to carry his burden of persuasion.

¶11 Husband contends that “[i]t is undisputed that Wife’s income increased by more than 40% from the time of the decree of divorce to the time the petition to modify was filed.” But a 40% increase in income is undisputed only if one buys into Husband’s flawed logic. Using Wife’s income at the time of the decree of divorce ($4,084 per month) as a base, Husband adds $1,750 per month of rental income from the house in Heber City, resulting in a monthly income of $5,834, a 43% increase in income. But Husband ignores a key fact in his ciphering: Wife’s income was only $3,000 per month at the time of the petition to modify.[6] Even if we credit $1,750 per month in rent as income, Wife made $4,750 per month at the time of the petition to modify, an increase of only 16% from her income at the time of the divorce.[7] Thus, Husband has failed to carry his burden of persuasion to show that Wife’s income has increased sufficiently (i.e., 30% or more) under section 78B-12-210(9)(b)(iii).[8]

II. Change in the Relative Wealth or Assets of the Parties

¶12 Next, Husband argues that Wife has had a change in relative wealth because she has remarried and now lives in a two-income household. The Act allows a parent to petition the court to adjust the amount of child support for “material changes in the relative wealth or assets of the parties.” Utah Code Ann. § 78B-12-210(9)(b)(ii) (LexisNexis 2018).

¶13 As with our analysis of the alleged material change in income, Husband “has the burden of showing a substantial change in circumstances” with respect to the parties’ relative wealth. Diener v. Diener, 2004 UT App 314, ¶ 7, 98 P.3d 1178 (cleaned up). “It is insufficient to show that there has been some change, without a showing that such change was substantial.” Id. (cleaned up).

¶14 Husband has failed to carry his burden of persuasion because he has not established by evidence a change in relative wealth. Although Wife’s income has increased—if we include the rental income—from $4,084 to $4,750 per month, her monthly expenses, owing largely to a mortgage taken on the house in Heber City, have also increased. Husband testified that his income has slightly decreased. Far from a material change in the parties’ relative wealth, the evidence supports the conclusion that their relative wealth has remained roughly the same. Accordingly, Husband has also failed to carry his burden on this issue.

III. Change in the Medical Needs of the Children

¶15 Husband also contends that a change in the medical needs—as expressed in reduced expenses—of the two oldest children justifies a decrease in the amount of child support he owes. The Act allows a parent to petition the court to adjust the amount of child support for “material changes in the medical needs of the child.” Utah Code Ann. § 78B-12-210(9)(b)(v) (LexisNexis 2018). Husband’s contention here fails because he has not shown any change in the medical needs of the children.

¶16 The Child Support Obligation Worksheet stated, “The increased amount [of $7,629] is based on the ongoing medical needs of two of the children born to this marriage. Both parties have determined this amount to be fair and necessary.” This amount of child support was subsequently incorporated in the Decree of Divorce and Judgment. Thus, the parties’ own negotiations at the time of the divorce showed that the deviated amount was based on the medical needs, not the medical expenses, of the children.

¶17 “The primary objective of statutory interpretation is to ascertain the intent of the legislature. Since 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.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (cleaned up). “We therefore look first to the plain language of the statute, presuming that the legislature used each word advisedly, and 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.” Dole v. Dole, 2018 UT App 195, ¶ 15, 437 P.3d 464 (cleaned up).

¶18 Husband makes the fatal error of conflating medical expenses with medical needs. The two are conceptually distinct. If the legislature had wanted to use the word “expenses,” it would have done so. Instead the legislature allows a parent to petition to adjust child support based on changes to the medical “needs” of the child. Medical expenses refer to the actual cost of medical care. Medical needs concern underlying medical conditions. Obviously, a child’s medical needs will likely result in medical expenses, but the two are not necessarily equivalent. In a nutshell, medical needs are conditions attended to, while medical expenses are bills to be paid. See Hansen v. Hansen, 2009 UT App 152U, para 3 (“Mother remains liable for the support of the child, including the responsibility to pay school fees, buy clothing, transport her to doctor and counseling appointments, attend to her medical needs, and pay her medical expenses.”), aff’d, 2012 UT 9, 270 P.3d 531. Indeed, courts in other jurisdictions have recognized this distinction between medical needs and medical expenses. See In re Harrelson, 311 B.R. 618, 621 (Bankr. M.D. Fla. 2004) (“[A]lthough [debtor] has only minimal current medical expenses, her future medical needs are unknown.”); Poberesky v. Poberesky, 897 N.Y.S.2d 401, 402 (App. Div. 2010) (stating that “special medical needs” may require additional spousal support for “medical expenses or health insurance coverage”).

¶19 Husband does not address medical needs. Rather, he addresses only out-of-pocket medical costs. But a decline in Wife’s out-of-pocket expenditures for the medical treatment of her children is not necessarily evidence that the children’s overall medical needs have changed. The record contains no evidence, or even mere argument, that the underlying medical conditions—the needs—have improved. Husband asserts only that Wife’s out-of-pocket costs have declined. But this fact alone cannot carry the day for Husband, because it does not address the actual medical needs and conditions of the two oldest children.9 Indeed, Husband himself admitted at trial that the two oldest children’s medical conditions are serious and have not substantially changed since the time of divorce.10 Thus, Husband’s contention in this regard is without merit because he failed to show any material change in the children’s medical needs on which the upward deviation was premised.

IV. Attorney Fees

¶20 Because we affirm the trial court’s ruling, Wife remains entitled to the award of attorney fees she received in the proceedings below. Wife requests that she also be awarded her fees and costs on appeal when this court enters its affirmation of the trial court’s ruling. While not opining on the propriety of the trial court’s use of the “substantially prevailed” standard, a point not assailed on appeal, see supra note 5, as we have substantively affirmed all the trial court’s rulings appealed from, we award Wife attorney fees on appeal and remand to the trial court to calculate the reasonable amount of fees and costs she incurred in connection with this appeal.

In reality, it is likely that the medical expenses of the children have not changed either. What has changed is how those expenses are paid (e.g., private insurance, out-of-pocket, Medicaid).

In fact, Husband testified that he regarded the children’s medical conditions as “very severe.” Husband stated that he was unaware of a material change in the older son’s medical condition since the time of the divorce. Nor does Husband dispute that the younger of the two sons has a serious medical condition.

CONCLUSION

¶21      We conclude that the trial court properly determined that there had not been a substantial material change in Wife’s income, in the parties’ relative wealth, or in the medical needs of the children. Having affirmed the trial court’s decision, we also award Wife attorney fees incurred on appeal and remand for a determination of those fees.

¶22 Affirmed.

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

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[1] Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, we cite the current version of the Utah Code.

[2] The upward deviation was for the medical needs of the two oldest children, who were respectively twenty and seventeen years old at the time of the divorce decree, and not tied to their minority status. Indeed, the deviation continues until April 2023, long after both children are over eighteen years old.

[3] In his petition to modify, Husband alleged that Wife’s salary was $3,000 per month. And the trial court made a factual finding, not challenged on appeal, that Wife’s income in Wyoming was $3,000 per month. Wife’s income at the time of the divorce, as reported on the child support obligation worksheet, was $4,084 per month.

[4] While not material to the appeal here, in ruling on this matter the trial court noted that the upward deviation for child support was “in the nature of a property settlement” because, although it was to be paid in monthly installments, it was a “sum certain” and had a “specific date as to when the payments will end.” While noting our concern about the propriety of using child support as a means to facilitate property settlements, we decline to address whether this characterization of the child support here is accurate because this appeal can be completely resolved on the basis of the trial court’s conclusion that no material change of circumstances occurred. However, we note that, with regard to property settlements, “[s]tipulations entered into in contemplation of a divorce are conclusive and binding on the parties unless, upon timely notice and for good cause shown, relief is granted therefrom.” Bayles v. Bayles, 1999 UT App 128, ¶ 15, 981 P.2d 403 (cleaned up); see also Batty v. Batty, 2006 UT App 506, ¶ 2, 153 P.3d 827 (“[S]tipulations regarding property distribution . . . should be respected and given great weight.” (cleaned up)). Although stipulated agreements “may be perceived as paring back the role of the court as fact-finder, in most cases this result should be welcomed as an exercise entirely consistent with efficient and just judicial administration.” Batty, 2006 UT App 506, ¶ 2 (cleaned up).

[5] Husband asserts two other issues on appeal. First, he argues that the trial court failed to address certain issues raised at trial, specifically the division of frequent flyer miles and the transfer of marital real property in Eureka, Utah. In fact, the court did not overlook these issues, because it had previously addressed them in a contempt judgment against Husband. On appeal, Husband could have challenged the contempt judgment, but he did not do so. Thus, we decline to address issues related to the division of the frequent flyer miles and the property in Eureka.

Second, Husband contends that the trial court erred in its award of attorney fees to Wife, but the only argument Husband makes in this regard is the following syllogism: (a) the trial court’s fee award was grounded in the assumption that Wife substantially prevailed at trial; (b) according to Husband, he should have prevailed at trial; and therefore (c) he (and not Wife) should be awarded fees. Without opining on the propriety of the trial court’s use of the “substantially prevailed” standard to award fees in the first place, we reject Husband’s argument because we affirm the trial court’s substantive rulings, and therefore Husband’s minor premise fails.

[6] Husband does not dispute or challenge with evidence to the contrary the amount of Wife’s income when the petition to modify was filed. Indeed, Husband assigned $3,000 in monthly income to Wife in his petition to modify. Citing Utah Code section 78B-12-203 on appeal, Husband obliquely suggests that more income should be imputed to Wife. But he offers no argument and provides no evidence to support his position.

[7] Wife mortgaged the Heber City house to help pay for a house in Wyoming that she shares with her current husband. She testified that her monthly mortgage payment is about $2,200. The trial court noted that the income Wife received in rent was offset by expenses associated with the mortgage and maintenance of the Heber City house. Husband attacks this analysis, but we conclude it is not material to our decision, because even assuming no offset for the mortgage and maintenance, Husband still has not shown an increase in income of 30%.

[8] As a separate issue, Husband contends the trial court erred in not holding that Cantrell v. Cantrell, 2013 UT App 296, 323 P.3d 586, was applicable to this case. Husband asserts that Cantrell “is  not just instructive for this matter, but controlling case law on eerily similar facts.” Although Cantrell might be superficially similar to the present case, as the trial court pointed out, it is readily distinguishable. Unlike Cantrell, in this case (1) there is substantial evidence of the reason for the upward deviation; (2) the children and Wife were not living in the marital home at the time of the divorce; (3) Wife was not maintaining the same level of lifestyle but was forced to change her living circumstances in response to the loss of Husband’s income; and (4) Husband does not actively participate in his children’s lives.

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