There are “expert” witnesses for virtually any and every issue in legal actions.
Can judges be bamboozled by pseudo-scientific expert witnesses? Without question.
Do some judges who know that the so-called expert witness’s testimony is pseudo-scientific bunk (or at least know that the opinion has dubious scientific grounding) yet justify the ruling the judge wants to make by citing to those pseudo-scientific opinions? Without question.
So your question really should be, “Are there competent expert witnesses who can objectively prove my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is, in my opinion, “no.”
Other questions you should ask (and their answers, in my opinion):
“Are there competent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.”
“Are there incompetent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.”
“Are judges generally receptive to the concept (much less the actual occurrence) of parental alienation, and are they generally willing to hold a parental alienator accountable?” The answer to that question is “Some judges will acknowledge that parental alienation exists, but even then the amount and quality of evidence needed to persuade a judge that parental alienation occurred or is occurring is very high, in many cases unobtainably high.”
“Will proving the occurrence of parental alienation help me obtain court orders to protect my children from further alienation and psychological/emotional abuse?” The answer to that question is “maybe.” Some judges take a bizarre approach to proof of parental alienation, i.e., it is clear that [parent] has alienated the child(ren) from [other parent], but if I were to take the children away from the alienator or impose sanctions/restriction/monitoring/supervision on the alienator, then the alienated kids (who side with the alienator because they have been exploited and manipulated and abused) would suffer (i.e., suffer in the process of treating and reversing the alienation brainwashing and being restored to reality), so I am going to leave things be “for the sake of the children.”
Utah Family Law, LC | divorceutah.com | 801-466-9277
The question was asked: In a study in 2012 proved many custody evaluators falsely believe most DV victims lied & alienated kids. So How do you prevent that evaluators report from poisoning all reports or evaluators after, since they always review historical reports?
This is a great question, but not for the reasons you may believe.
The problem isn’t the errors the evaluators make (as if to suggest that all that is needed is for the evaluators to get more accurate, as if that is even realistically possible). The problem lies in being so trusting of custody evaluators’ recommendations for child custody and visitation (also known as parent time) decisions. These so-called experts are little better than a coin toss when it comes to getting to the truth not only about spousal and/or child abuse allegations but about virtually any factor affecting the child custody and parent time award.
It’s not really a matter of trust. It’s a matter of analytical and jurisprudential sloth, a matter of passing the buck to so-called experts who aren’t really experts, whose involvement helps get to truth and sound understanding no better than than does their absence in the custody and parent time analysis.
Utah Family Law, LC | divorceutah.com | 801-466-9277
GALs and custody evaluators waste too much money and time, and can never provide the same accuracy as a judge’s direct interview of the child.
This post is the fifteenth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
Even if guardians ad litem and custody evaluators always tell the truth (and there’s no way for us to know that, especially when they are not required to back their claims with independently verifiable evidence), how would that have any impact on whether children tell the truth to guardians ad litem and/or to custody evaluators? And is there any proof that children would lie more or less to judges than to guardians ad litem and/or custody evaluators? If so, I’m not aware of any such proof. It would be a cheap shot to call my critiques of the use of guardians ad litem and custody evaluators as being “skeptical” of their use when there is no basis for presuming that the use of guardians ad litem and/or custody evaluators is an obvious good or obviously better than having the judge speak directly to the children. Guardians ad litem and custody evaluators are way too expensive, waste too much time, and can never provide the same degree of accuracy as a judge’s interview directly with the child. That’s indisputable. Those who try to claim otherwise usually do so by relying on fallacious ad hominem and appeals to authority arguments, as well as outright lies.
I’ve never seen a GAL or custody evaluator add value equal to the fees they charge
This post is the fourteenth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
I’ve never seen a guardian ad litem or custody evaluator add value to the child custody analysis that is equal to what the GAL and/or custody evaluator charged in fees, and here is why:
First and most glaring of all, there is no way to know if the guardian ad litem has done anything (let alone done anything well or poorly) because the guardian ad litem does not have to make a record and is not subject to discovery. The guardian ad litem could literally do nothing and lie through his or her teeth to the court and there is be no way discover and expose it except by dumb luck. Custody evaluators, as opposed to guardians ad litem, can be subject to some discovery, but rarely is a custody evaluator willing to part with his or her file contents in response to a discovery request. It is often very difficult to get a custody evaluator to comply with the discovery request, if a discovery request is made.
Back to the problems of guardians ad litem specifically. Because the guardian ad litem is not required to furnish the court with any proof in support of any alleged facts that underlie the GAL’s assertions and recommendations, the guardian ad litem’s assertions, analysis, and recommendations literally have the same evidentiary value as any other person’s bald claims.
If there are devoted guardians ad litem out there becoming intimately and accurately acquainted with their child clients’ circumstances and feelings AND providing verifiably accurate and credible factual information to the court, as well as sound analysis based upon and citing to such evidence, I have yet to witness that personally. If anyone viewing this has had a different experience that can be documented and verified, I plead with you to share it with me. I must warn you: even if you were to produce such of guardian ad litem, I would ask whether what the guardian ad litem charged for such a thing justify the expense when the child could have been interviewed directly by the judge instead.
Third, even if we were to grant that a guardian ad litem somehow furnished accurate evidence and analysis—without the basis of that evidence and analysis being subject to discovery and verification and without having to make a record of what the children are asked and what they say in response—the amount and quality of such evidence and analysis still does not justify the time and money consumed by the appointment of a guardian ad litem compared to the much lower cost, much shorter consumption of time, and greater accuracy of a judge’s on the record interview of the child.
How useful are a GAL’s or custody evaluator’s recommendations?
This post is the twelfth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
Then there’s the nature and quality of the guardian ad litem’s and/or custody evaluator’s recommendations. They are never, never detailed or presented in a manner that subjects them to independent objective verification. The guardian ad litem makes a recommendation to the court the guardians recommendations are cursory and vague. Things like, “I’ve spoken to my client and he is scared of his father.” While a custody evaluator’s recommendations may include more background information and supporting detail, as I stated previously, the problem with custody evaluator recommendations is that I’ve had more than one custody evaluator confided to me that they are afraid to give their frank assessments and opinions because they fear being reported to their licensing boards and/or being sued if they happen to make recommendations adverse to a parent. So, custody evaluators also end up giving vague, equivocal, and less than completely forthright analyses and recommendations.
Why Not Have the Judge Interview the Children About Child Custody?
Why Appoint a GAL or Custody Evaluator When the Judge Can Interview the Children?
This post is the first in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
I can imagine a case in which ordering a custody evaluation and/or appointment of a guardian ad litem may be warranted, even necessary, but generally guardians ad litem and custody evaluations are an obscene waste of time and money and effort. They don’t just fail to justify their costs; they spectacularly fail to justify their costs. Instead, in the overwhelming majority of child custody disputes, the court can and should interview the children directly. The Utah Code expressly provides for this. Section 30-3-10(5), to be exact. Yet in 24 years of practice I have never had a judge agree to interview a child in a child custody dispute. Not once. And I submit that’s ridiculous. In the posts that follow we will discuss why judges interviewing children is clearly superior to appointing guardians ad litem and/or custody evaluations for the vast majority of child custody dispute cases.
There is nothing a GAL could learn how to do that a judge cannot also learn how to do equally well.
This post is the ninth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
There is nothing a guardian ad litem could learn how to do and then do that a judge cannot also learn how to do equally well and do equally well.
Some people try to make a (false) distinction between the effect of a judge questioning a child and the effect of a guardian ad litem questioning a child.
Up until a certain age, we all know that children have no idea what the difference between a judge and a lawyer is; therefore, if they’re not aware of any difference between the judge questioning them and a GAL questioning them, the effects of the questioning cannot be any more traumatic when the judge conducts the interview then when a guardian ad litem conducts the interview.
But let’s assume that we’re dealing with the interview of a child who is 14 or 15 years old or older. At that age, one might expect a child to know the difference between a judge and a lawyer. The child might even realize that the judge is the one who ultimately makes the child custody and parent-time decisions. So what?
If a guardian ad litem sat down with a child and told the 14+ years old child, “Hi, I’m Eric, and I’ve been asked to help you, your parents, and the court find out what you want and need and what’s best for you and your family when it comes to where you and your siblings live after your parents get divorced. I’d like to talk about that with you now for the next hour or so,” how would the effect on the child be any different if a judge sat down with that same child and said essentially the same thing? The answer is it clearly would not be any different merely because the one asking the questions is a judge instead of a GAL.
There is nothing about judges talking to children that is inherently harmful, just as there is nothing about guardians ad litem talking to children that inherently has a beneficial or benign effect on the child.
Claims that judges questioning children does children harm require us to presume that would be because of their status as judges, because all judges are insensitive and incompetent questioners, or both. Obviously, neither premise is true. For it were shown to be true that a judge is insensitive and/or incompetent, then the problem wouldn’t be whether the judge interviews the children, but whether the judge can be trusted to act in the best interest of the children in the first place.
Which Is Better: spending thousands on GAL/custody evaluator or $0 on a judge interview?
How could it be better to spend thousands on a GAL or custody evaluator when the judge can interview children free of charge?
This post is the sixth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
How could it be better to spend thousands on a GAL or custody evaluator when the judge can interview children free of charge? In 24 years of law practice, I have never had a judge agree to interview children in lieu of having a private guardian ad litem appointed and/or having a custody evaluator appointed. I submit that it’s not because my arguments lack merit. Indeed, I have yet to encounter a valid, let alone a compelling, argument for why it is better to spend thousands, even tens of thousands, on guardians ad litem and or custody evaluators when the judge can interview children directly, free of charge (as opposed to obtaining so-called “evidence” via court-sponsored hearsay in the form of second, and often third hand information of interviews with the children that allegedly took place but were never made part of the court’s record). There are two main excuses one will hear for why judges should not interview children: 1) judges interviewing children is inherently traumatic for children and/or “puts them in the middle of their parents’ disputes” and thus unjustifiably traumatizes them too; and 2) judges are not qualified to interview children where guardians ad litem and or custody evaluators, and only guardians had lied them and/or custody evaluators, are qualified to do so. Neither justification holds water, as I have explained and will continue to explain in these videos. If anyone would like to hold a debate on this subject, it would be of benefit to everyone involved in child custody disputes, from the child to the parents to the parent’s respective lawyers to the judge.
This post is the eighth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
To conclude that judges interviewing children harms them rests on the false premise that judges are insensitive and/or incompetent. There is obviously no inherent difference between having a judge interview a child and having a guardian ad litem interview a child. Lawyers and judges know that there is nothing about a guardian ad litem that is any better or worse than a judge when it comes to ability to question children. Judges are former lawyers, after all.
To conclude that judges who interview children inherently harm, or inherently expose children to undue risks of harm must necessarily rest on the premise that judges who interview children are insensitive and/or incompetent. For all my criticisms of the legal system, I would be lying if I claimed that all or most or even a statistically significant number of judges are too insensitive and too incompetent to question children about child custody issues without harming them any more than an interview conducted by a guardian ad litem or custody evaluator would harm children.
If a judge were to claim that his or her ability to question children is worse than a guardian ad litem’s ability to question children because the judge lacked GAL training, then the problem would clearly not lie in the judge’s status as a judge but in a lack of training.
GAL training is a matter of hours, not years or even months. So, the training and skills gap between a trained GAL and an untrained judge could be closed quickly and easily by the judge getting that same GAL training. It wouldn’t even cost the judge any money because the Utah State Office of Guardian ad Litem has offered to provide judges with GAL training free of charge.
Does having the judge interview the children traumatize the children?
This post is the second in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
Does having the judge interview the children traumatize the children? You may have heard the argument along the lines of, “Having a judge interview children is tantamount to child abuse.” If you haven’t heard it yet, all you have to do to make that happen is propose that the judge interview your children. The same people who claim judges interviewing kids harms kids will, with a straight face, claim that having a child interviewed by a guardian ad litem or custody evaluator is in some way functionally and/or effectively different from and better than being interviewed by a judge. Really?
I submit to you that virtually no child knows or cares about the difference between a judge or a guardian ad litem or psychologist interviewing a child. And while I will be among the first to admit that a mental health professional like an LCSW or psychologist may generally be a bit more skilled than the average judge at interviewing children about child custody issues, I submit that the difference is not so great as to justify spending $3,000 to $10,000 or more on a custody evaluation with an LCSW or psychologist, especially when the custody evaluation interview, like the interviews with the GAL, are not on the record, which means there’s no way of knowing how well the interviews were conducted or what said or not said by the child, if in fact the interviews ever took place at all.
Contrastingly, an interview conducted by the judge, as authorized by the Utah legislature/Utah Code § 30-3-10(5), is free of charge to the parents, takes far less time than an interview with a custody evaluator, would take about as much time as an interview would with a GAL, is directly from the child witness’s mouth to the judge’s ear (that way there are no hearsay or other second hand information concerns), and is on the record to ensure that there is no question as to how well the interview was conducted, what the child was and was not asked, and what the child did and did not say in response.
ADAM LEGRANDE PEEPLES, Appellee,
v.
ANNALEISE T. PEEPLES, Appellant.
Opinion
No. 20180713-CA
Filed December 19, 2019
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 044901980
Brian Boggess, Attorney for Appellant
Adam L. Peeples, Appellee Pro Se
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
HARRIS, Judge:
¶1 Annaleise T. Peeples (Mother) asked the district court to modify her divorce decree to give her sole custody of her two teenage daughters, but the district court refused, determining that Mother had failed to demonstrate any substantial change in the circumstances underlying the original decree. Mother now appeals the district court’s order dismissing her petition to modify, and we affirm.
BACKGROUND
¶2 In 2004, after about three-and-a-half years of marriage, Adam Legrande Peeples (Father) filed for divorce from Mother, citing irreconcilable differences. Around the same time, Father also sought and obtained a protective order against Mother, asserting that Mother had been physically abusive to him; that protective order awarded temporary custody of the parties’ two young daughters to Father. The parties were each represented by counsel in both the divorce and the protective order proceedings, and because of the allegations of physical abuse, the court also appointed a guardian ad litem to represent the best interests of the two children. Early in the divorce case, all parties and counsel appeared before a domestic relations commissioner to discuss the parties’ motions for temporary orders. Following that hearing, the commissioner entered a temporary order, later countersigned by the assigned trial judge, awarding temporary custody of the children to Father, as the protective order did, with Mother receiving parent-time.
¶3 As the divorce proceedings progressed, the district court appointed a custody evaluator to make a recommendation to the court. While the custody evaluation was ongoing, the court entered a stipulated bifurcated decree of divorce in 2005, severing the parties’ marital union but reserving all other issues, including custody and parent-time, for further proceedings. In 2007, Mother filed her first motion for a change in custody, alleging that the temporary order giving custody to Father was unworkable because Mother lived in northern Utah County and Father lived in Salt Lake County, and because Father had “moved three times in three years and has not demonstrated stability.” Father objected, and after briefing and oral argument, the commissioner denied Mother’s motion.
¶4 In October 2007, soon after the commissioner denied Mother’s motion for a change in temporary custody, the parties and counsel participated in a settlement conference with the custody evaluator, at which the evaluator orally shared with the parties his recommendation: that primary physical custody remain with Father. At a hearing in December 2007, the guardian ad litem informed the court that he agreed with the custody evaluator’s recommendation. At that same hearing, the district court set a date for a bench trial to resolve all remaining issues.
¶5 Following the commissioner’s ruling on Mother’s motion and the court’s decision to set a trial date, as well as the revelation of the recommendations made by the custody evaluator and the guardian ad litem, the parties and their counsel entered into negotiations, and were able to resolve the remaining issues by stipulation. On April 28, 2008, after more than four years of divorce litigation, the court entered a stipulated amended decree of divorce, awarding the parties “joint legal custody” of the children, but awarding Father “primary physical custody.” Mother was to have “liberal parenting time” amounting to five out of every fourteen overnights during the school year, with the schedule to be “reversed” during the summertime.
¶6 Perhaps not surprisingly, given the nature and tone of the four years of pre-decree litigation, entry of the final divorce decree did not end the divisiveness and discord between these parties. About a year-and-a-half after the amended decree was entered, Mother filed a petition to modify, seeking amendments to the parent-time provisions of the decree. Mother alleged that circumstances had changed substantially since the entry of the decree because Father had enrolled the children in year-round school, rendering certain of the decree’s provisions unworkable, and because Father had violated the decree in numerous particulars. Father responded by filing a cross-petition to modify, seeking sole legal and physical custody. After further proceedings, the district court declined to modify the original divorce decree, and denied the parties’ dueling petitions.
¶7 A few years later, in 2013, Mother filed the instant petition to modify, this time seeking sole physical custody of the children. Mother asserted that circumstances had changed in three specific ways. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children [had] been emotionally abused.”
¶8 Soon after the filing of Mother’s 2013 petition to modify, the parties agreed to have another custody evaluation done. After some procedural wrangling about the identity of the evaluator, the court finally appointed one, and the new evaluator interviewed the parties and the children in the fall of 2015. In January 2016, the evaluator shared her recommendation with the parties’ attorneys: that Mother be awarded sole physical custody, with Father to receive “standard minimum parent time.” Soon thereafter, the court appointed a different guardian ad litem (GAL) to represent the best interests of the children during the proceedings on the petition to modify.
¶9 From there, it took over a year to get to trial on the petition to modify; trial eventually took place over two days in December 2017. Just a few days before trial was to begin, the GAL issued a report containing his recommendations. Unlike the custody evaluator, the GAL recommended that the custody arrangement remain unchanged, with Father retaining primary physical custody. He explained that, while he understood the evaluator’s “rationale for recommending a change in custody at the time [the] evaluation was performed, over two years [had] passed” since the evaluator conducted her interviews, and he expressed his view that the information on which the evaluator based her conclusions was outdated.
¶10 At trial, Mother (as the petitioner on the petition to modify) presented her case first, and called three witnesses over the first day-and-a-half of trial: herself, Father, and the custody evaluator. At the conclusion of Mother’s case-in-chief, Father made an oral motion to dismiss the petition to modify, arguing that Mother failed to “meet her burden to prove that a significant change in circumstances has taken place.” After hearing argument from both sides, as well as from the GAL, the court granted Father’s motion. The court explained that Father’s relative instability had been constant since before the decree was entered, and therefore was not a change in circumstances; that any violations by Father of the terms of the decree could be resolved in contempt proceedings, and—especially in a case in which “[t]he parties have been in constant conflict since their separation and likely before”—that those violations did not rise to the level of unworkability that would constitute a change in circumstances; and found that there had not been any violence or emotional abuse. The court noted that the parties had been fighting over custody for some thirteen years, and that the fighting had been fairly constant. The court stated that, in such a “high-conflict” case, “if anything, the need to show a change in circumstances [is] even stronger,” and “the need for a permanent decree . . . that people can rely on . . . is that much greater.” A few weeks later, the court entered a written order, drafted by Father’s counsel, dismissing Mother’s petition to modify; that order contained a provision stating that, “[i]n a high conflict divorce such as this one, the need for finality is even greater and therefore the burden to show a material and significant change in circumstances should be higher than normal.”
ISSUE AND STANDARDS OF REVIEW
¶11 Mother now appeals from the district court’s order dismissing her petition to modify. When reviewing such a decision, we review the district court’s underlying findings of fact, if any, for clear error, see Vaughan v. Romander, 2015 UT App 244, ¶ 7, 360 P.3d 761, and we review for abuse of discretion its ultimate determination regarding the presence or absence of a substantial change in circumstances, see Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. The district court’s choice of legal standard, however, presents an issue of law that we review for correctness. See id. ¶ 6.
ANALYSIS
¶12 Mother challenges the district court’s dismissal of her petition to modify on two general grounds. First, she contends that the district court employed an incorrect (and overly strict) legal standard in determining whether circumstances had changed sufficiently to justify reopening the governing custody order. Specifically, she asserts that the court did not properly take into account the fact that the decree at issue was stipulated rather than adjudicated, and she takes issue with the statement in the court’s written order that, in “high conflict” cases, the burden of demonstrating a change in circumstances is “higher than normal.” Second, Mother contends that the district court abused its discretion in determining, on the facts of this case, that no substantial and material change in circumstances existed. We address each of these contentions in turn.
A
¶13 Under Utah law, petitions to modify custody orders are governed by a two-part test:
A court order modifying . . . an existing joint legal custody or joint physical custody order shall contain written findings that: (i) a material and substantial change of circumstance has occurred; and (ii) a modification . . . would be an improvement for and in the best interest of the child.
Utah Code Ann. § 30-3-10.4(2)(b) (LexisNexis Supp. 2019). Because “[t]he required finding of a material and substantial change of circumstances is statutory, . . . [n]either this court nor the supreme court has purported to—or could—alter that requirement.” Zavala v. Zavala, 2016 UT App 6, ¶ 16, 366 P.3d 422; see also Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553 (“Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.”). Thus, “only if a substantial change of circumstances is found should the [district] court consider whether a change of custody is appropriate given the child’s best interests.” Wright v. Wright, 941 P.2d 646, 651 (Utah Ct. App. 1997) (quotation simplified).
¶14 This statutory requirement that a substantial change in circumstances be present before a court may modify a custody order serves two important ends. “First, the emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). We have previously noted the “deleterious effects of ‘ping-pong’ custody awards” that subject children to ever-changing custody arrangements. See Taylor v. Elison, 2011 UT App 272, ¶ 13, 263 P.3d 448 (quotation simplified). Second, the requirement “is based in the principles of res judicata,” as “courts typically favor the one-time adjudication of a matter to prevent the undue burdening of the courts and the harassing of parties by repetitive actions.” Id. (quotation simplified); see also Zavala, 2016 UT App 6, ¶ 16 (stating that the statutory change-incircumstances requirement is “a legislative expression of the principle of res judicata”).
¶15 The change-in-circumstances requirement is itself comprised of two parts. In order to satisfy it, “the party seeking modification must demonstrate (1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). In this context, however, our case law has drawn something of a distinction between adjudicated custody decrees and stipulated custody decrees, recognizing that “an unadjudicated custody decree” is not necessarily “based on an objective, impartial determination of the best interests of the child,” and therefore the res judicata policies “underlying the changed-circumstances rule [are] at a particularly low ebb.” See Taylor, 2011 UT App 272, ¶ 14 (quotation simplified). In Zavala, we clarified that the change-in-circumstances requirement still applies even in cases involving stipulated (as opposed to adjudicated) custody orders, although we acknowledged that, in some cases, “a lesser showing” of changed circumstances may “support modifying a stipulated award than would be required to modify an adjudicated award.” See 2016 UT App 6, ¶ 17.
¶16 In this case, the court did not specifically discuss the distinction our case law has drawn between stipulated and adjudicated decrees, or the extent to which this decree should be considered stipulated or adjudicated. The court simply applied the change-in-circumstances requirement and found it not met on the facts of this case. In one recent case, we found no error under similar circumstances. See Erickson v. Erickson, 2018 UT App 184, ¶ 21, 437 P.3d 370 (declining to reverse a district court’s determination that no substantial and material change in circumstances had been shown, despite the fact that the district court did not specifically consider “the fact that the underlying custody award was based on a stipulated agreement”).
¶17 But more to the point, we think it unhelpful to view the adjudicated/stipulated dichotomy as entirely binary; instead, in assessing how much “lesser” a showing might be required to satisfy the change-in-circumstances requirement, see Zavala, 2016 UT App 6, ¶ 17, courts should examine the origin of the order in question and analyze the extent to which the order—even if stipulated—reflects the result of robustly contested litigation aimed at ascertaining the best interest of the child.
¶18 We discern no error here, even though the district court did not expressly discuss the origin of the custody decree at issue, because the decree—although entered as a result of a negotiated settlement—was more akin to an adjudicated decree than a non-adjudicated decree. Here, the decree was finalized in April 2008, after more than four years of litigation between the parties, during which both parties were represented by counsel the entire time. The parties had fully litigated not only motions for protective orders, which involved custody determinations made by a court, but also motions for temporary orders before the court commissioner and the district court wherein temporary custody determinations were made. Moreover, the court had appointed a guardian ad litem to represent the children, and in addition a full evaluation had been performed by a neutral court-appointed custody evaluator. The parties did not reach their negotiated settlement in this case until after they had received input from not only the custody evaluator and the guardian ad litem, but also from the commissioner and the court during the temporary orders process. By the time the settlement was reached, four years of litigation had passed and a trial date had been set. In the end, the decree encapsulated, for the most part, the recommendations made by the guardian ad litem and the custody evaluator, and memorialized an arrangement very similar to the one previously ordered by the court on a temporary basis.
¶19 We certainly recognize the potential for injustice with certain types of stipulated custody orders; indeed, this is part of the reason why courts, when considering petitions to modify, retain the flexibility to be less deferential to stipulated custody orders. See Taylor, 2011 UT App 272, ¶ 14 (stating that unadjudicated custody decrees “may in fact be at odds with the best interests of the child” (quotation simplified)). Depending on the situation, our confidence that a stipulated custody decree—at least one that is submitted to the court before receipt of input from judicial officers during the temporary orders process or from custody evaluators or guardians ad litem—will actually be in keeping with the best interest of the child may be comparatively low, especially where neither side is represented by counsel (or, potentially more concerning, when only one side is represented by counsel). Inequalities in negotiating power or financial resources can sometimes result in one parent agreeing to conditions by stipulation that may not be in the long-term best interest of the child.
¶20 But such concerns are not present in a case like this one, where the parties reached a negotiated agreement after fully and robustly participating in the litigation process, with lawyers, for more than four years. The terms of the negotiated custody decree in this case—entered on the eve of a scheduled trial—did not substantially deviate from the terms of the temporary custody order imposed by the court, and were heavily influenced by the recommendations of both the custody evaluator and the guardian ad litem. In this case, therefore, we have relatively high confidence that the custody order was in line with the best interests of the children. Accordingly, we discern no error in the district court’s decision to apply the change-in-circumstances requirement without watering it down to account for the fact that the custody order in question was, technically speaking, stipulated.
¶21 We are more concerned, however, with the district court’s statement in its written order that, in “high conflict” cases, “the burden to show a material and significant change in circumstances should be higher than normal.” The district court offered no citation to any authority supporting this principle in our case law, and we are aware of none. We take this opportunity to clarify that there is no separate standard that courts are to apply in high-conflict cases when considering whether a substantial change of circumstances is present in the context of a petition to modify. Nevertheless, we are not persuaded that the district court’s statement made a material difference to its analysis in this case. In context, especially after reviewing the court’s oral ruling, we view the court’s statement as simply acknowledging that, in high-conflict divorce cases, parties are perhaps more willing to seek modification more often, and that the danger of “ping-pong” custody awards in those cases is therefore proportionately higher.
¶22 In the end, we are convinced, after a review of the full record, that the district court applied the proper two-step analysis to determine whether a substantial and material change in circumstances occurred here. First, the court analyzed whether, “since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based.” See Hogge, 649 P.2d at 54. Second, the court analyzed whether “those changes are sufficiently substantial and material to justify reopening the question of custody.” See id. Because we conclude that the court applied the proper test, we now proceed to analyze whether the court abused its discretion in its application of that test.
B
¶23 In her petition to modify, Mother pointed to three things that she believed led to a substantial and material change in circumstances. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children have been emotionally abused.” After hearing evidence for a day-and-a-half, the district court concluded that these things did not constitute a substantial and material change in circumstances, finding either that they were occurring, at most, infrequently, or that they had been occurring throughout the litigation and therefore could not constitute a change in circumstances. We conclude that the court did not abuse its discretion in making that determination.
1
¶24 Mother’s first contention was that Father had “been unable to provide a stable home environment” for the children because he had “been evicted from several residences” resulting in the children having to change schools a number of times. In addition, Mother contended that Father had not “had stable employment for the last eight years.” The district court acknowledged that Mother had presented evidence that Father’s “income was questionable and [his] lifestyle was a little bit itinerant.” But the court noted in its oral ruling that this had been the case both “before and after the decree,” and that nothing had changed in this regard. In its written ruling, the court made a finding that it had “not received evidence that there has been a significant and material change in [Father’s] ability to provide the children with a stable home.”
¶25 It is unclear from Mother’s brief whether she even intends to challenge the district court’s factual findings, stating that her “appeal is primarily legal.” But in any event Mother has not carried her burden—if indeed she intended to shoulder that burden—of demonstrating that the court’s factual finding was clearly erroneous. As noted above, Mother alleged as early as 2007—in her pre-decree motion to alter the terms of the court’s temporary custody order—that Father had “moved three times in three years and has not demonstrated stability.” Despite Father’s itinerant nature, the first custody evaluator recommended that primary physical custody be awarded to Father, and the stipulated decree followed that recommendation. Presumably, all of that was taken into account during the litigation that preceded entry of the decree. Moreover, in her own petition to modify filed in 2013, Mother alleged that Father’s employment instability had been an issue “for the last eight years,” dating back to 2005, three years before entry of the decree. Issues that were present prior to the decree, and continue to be present in much the same way thereafter, do not represent a change in circumstances sufficient to justify the reopening of a custody decree. See Utah Code Ann. § 30-3 10.4(2)(b)(i) (LexisNexis Supp. 2019) (requiring a “change of circumstance” before reopening a custody decree); see also Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that the rationale behind the change-in-circumstances requirement “is that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed”). In the end, Mother has not shown that the district court’s finding—that Father’s employment instability and itinerant nature had been present the whole time and therefore did not constitute a substantial change in circumstances—was clearly erroneous.
2
¶26 Mother’s next contention was that Father failed on numerous occasions to facilitate parent-time as required under the divorce decree. The district court found that, while Father may have committed occasional violations of the terms of the decree, “[t]he court has not received evidence that any denial of physical visitation on the part of [Father] was systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.
¶27 Ordinarily, when one parent commits a violation of the terms of a divorce decree, the other parent’s remedy lies in contempt. See Utah Code Ann. §§ 78B-6-301(5), -310 (LexisNexis 2018) (categorizing “disobedience of any lawful judgment [or] order” as “contempt[] of the authority of the court,” and authorizing courts to sanction violators); see also, e.g., Clarke v. Clarke, 2012 UT App 328, ¶¶ 24–31, 292 P.3d 76 (resolving one parent’s request for contempt sanctions against the other for asserted violations of a custody order). In most cases, violations of a custody order by one party will not constitute the type of substantial and material change in circumstances that will justify reexamining the propriety of the order. But if the violations are so numerous and pervasive that it becomes evident that the custody arrangement is “not functioning,” then a change in circumstances may have occurred. See Moody v. Moody, 715 P.2d 507, 509 (Utah 1985) (“[T]he nonfunctioning of a joint custody arrangement is clearly a substantial change in circumstances which justifies reopening the custody issue.”); see also Huish v. Munro, 2008 UT App 283, ¶ 13, 191 P.3d 1242 (same).
¶28 In this case, the district court, after hearing Mother’s evidence, made a factual finding that the evidence of Father’s potentially contemptuous behavior was not so overwhelming as to render the decree unworkable. The court noted that the parties had been “in constant conflict since their separation and likely before,” and that they were “still at war” thirteen years after their separation. The court found that, while Father may have violated the decree with regard to parent-time on a few occasions, Father’s violations were not “systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.
¶29 As noted above, it is unclear if Mother even intends to challenge the district court’s factual findings, but in any event she has not demonstrated clear error here. The district court’s finding that the decree had not been rendered unworkable as the result of Father’s violations was supported by, among other evidence, the recommendation of the court-appointed GAL, who expressed the view that the custody arrangement was working well enough and should remain unchanged, and that “the children have maintained throughout these proceedings that they are happy with the current arrangement.” Mother has not demonstrated that the district court’s determination about the decree’s workability was clearly erroneous.
3
¶30 Mother’s final contention was that Father had “become violent with other people and the children have been emotionally abused.” After hearing the evidence, the district court found insufficient evidence that Father had been violent or that he had emotionally abused anyone. In her brief, Mother makes no serious effort to challenge this factual finding, and therefore we are unable to find any error therein.
4
¶31 Given that Mother has not mounted a successful challenge to any of the district court’s factual findings, all that remains is for us to examine whether, given these findings, the court abused its discretion in determining that no material and substantial change in circumstances had occurred. See Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. And on this record, we have no trouble concluding that the court did not abuse its discretion in making that determination. Many of the issues identified by Mother in her petition—such as Father’s unstable employment and frequent change of residence—had been present from the outset of this case, and were present before the decree was entered; such ever-present conditions cannot constitute a change in circumstances sufficient to reopen a custody decree. Any issues Father had with complying with the terms of the decree were apparently not egregious or pervasive enough to render the custody arrangement unworkable. And the district court, after listening to a day-and-a-half of evidence, did not hear any evidence that Father had acted violently or abusively toward anyone.
¶32 Under these circumstances, the district court did not abuse its discretion in concluding that Mother had not carried her burden of demonstrating a change in circumstances that was substantial and material enough to justify reexamining the parties’ longstanding custody arrangement. Because Mother did not satisfy the first part of the statutory test for obtaining a modification of a divorce decree, the district court did not err by dismissing her petition.
CONCLUSION
¶33 For all of the foregoing reasons, we affirm the district court’s dismissal of Mother’s petition to modify.
Utah Family Law, LC | divorceutah.com | 801-466-9277
No, not simply by virtue of their being custody evaluators.
Sometimes custody evaluators and other mental health professionals give the impression (either deliberately or inadvertently) that they have magic, infallible powers of perception that make them able to detect lies at all times and in all circumstances. ’Tis not so. It can’t be so.
While custody evaluators and other mental health professionals may be better at detecting lies than those of us who aren’t trained in it, they can still be fooled and are regularly fooled because some narcissists (dare I say most?) are staggeringly good liars. No one is perfectly (or even all that consistently) able to tell when he/she is being lied to, and custody evaluators are no exception.
Utah Family Law, LC | divorceutah.com | 801-466-9277
KRISTEN PULHAM,
Appellee,
v.
WILLIAM KIRSLING,
Appellant.
Opinion
Nos. 20150577-CA and 20160236-CA
Filed April 12, 2018
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 104901246
Margaret S. Edwards, Attorney for Appellant
Steve S. Christensen and Clinton R. Brimhall, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.
POHLMAN, Judge:
¶1 This case involves two appeals in the same domestic relations dispute.[1] In the first appeal (the First Appeal), William Kirsling challenges several aspects of the amended decree entered in his divorce from Kristen Pulham. In the second appeal (the Second Appeal), Kirsling challenges the trial court’s denial of his petition to modify the divorce decree’s custody arrangement. We affirm the trial court’s decisions in both appeals.
BACKGROUND
The Trial and the Amended Decree
¶2 Pulham and Kirsling were married in 2008 and separated in 2010. The parties had one child (Child) born during the marriage. In June 2012, the trial court entered a bifurcated decree of divorce, reserving several issues for trial.
¶3 At a bench trial in 2014, the parties contested the issues of custody, child support, past-due child support, and unreimbursed child care expenses. Each party also alleged that the other party was in contempt of the court’s prior orders and should therefore face sanctions.
¶4 On Child’s custody, the trial court made detailed findings. Among other things, it found that Pulham had remarried, had a son with her new husband, and was living in Tooele, Utah. The court also found that Pulham had been the primary caregiver of Child since birth and that, at the time of trial, Pulham was unemployed and was acting as the full-time caregiver of her younger son and Child.
¶5 Regarding Kirsling, the court found that he was living in Taylorsville, Utah, with his girlfriend and her children, and that Kirsling’s older son from a previous marriage lived with Kirsling part-time. The court also found that Kirsling had resided in various places, including Brigham City, Utah, and Phoenix, Arizona, for lengthy periods after the parties separated. The court found that even though Kirsling’s “contact and visitation with [Child] ha[d] been inconsistent for much of that time,” his contact had “stabilized considerably” in the year leading up to trial.
¶6 Although Kirsling and Pulham agreed at trial that it would be in Child’s best interest if they shared joint physical and legal custody, they sharply disagreed about the details of that custody, including where Child should be enrolled in school and with whom she should primarily reside. A custody evaluator prepared a custody evaluation and testified about it at trial.
¶7 Kirsling requested a court order requiring Child to enroll in the school near his home in Taylorsville for three years, at which point Child would then transfer to the school near Pulham’s home for the latter half of elementary school. The court rejected Kirsling’s request, reasoning that his plan would require Child “to spend considerable time commuting by car between Taylorsville and Tooele”—amounting to “upwards of an hour each way, before school and after school”—and that it was not in Child’s best interest to do so merely to accommodate Kirsling’s preferred parenting plan. The court also reasoned that Kirsling’s plan would require Child to change elementary schools and that such a plan, which would put Child through “an unnecessary adjustment of surroundings, friends and routine,” was not in Child’s best interest.
¶8 In the November 2014 amended divorce decree (the Amended Decree), which followed the earlier bifurcated decree, the trial court awarded the parties joint physical and legal custody. The court also ordered that Pulham would be the primary custodial parent and would have the final say in parenting decisions for Child, including which school Child would attend.
¶9 As for parent-time, the court determined that a standard parent-time order, as anticipated under Utah Code section 30-3-35, did “not provide sufficient parent time” for Kirsling and was not in Child’s best interest. As a result, the court awarded Kirsling additional parent-time in a manner that avoided “creating the attendant travel time that would be inflicted upon [Child] by [Kirsling’s] proposed parenting plan.”
¶10 On future child support, the trial court found that it would be calculated based on Pulham’s monthly income of $30 and Kirsling’s monthly income of $4,580, “which are the stipulated monthly gross incomes” of the parties. Then, referencing the Utah Code and a custody worksheet,[2] the court ordered Kirsling to pay Pulham $548 per month for child support.
¶11 On past-due child support, the trial court found that the evidence supported Pulham’s claim that Kirsling had an outstanding obligation for a period before 2012. The court also found that Pulham incurred fees paid to the Office of Recovery Services (ORS) due to Kirsling’s “failure to timely pay his child support obligation.” Because Kirsling had not been “consistently responsible for payments until ORS intervened,” the court agreed with Pulham that Kirsling should reimburse her for the ORS fees. Accordingly, the court ordered Kirsling to pay Pulham for past-due child support and ORS fees.
¶12 On unreimbursed child care expenses, the trial court found that Pulham had shown that Kirsling had not paid his share of some expenses. The court ordered Kirsling to pay Pulham those expenses.
¶13 Finally, on the allegations of contempt of court, the trial court found that “insufficient evidence was presented at trial to warrant sanctions for either party.” Thus, the court dismissed all charges of contempt.
The Motion for a New Trial
¶14 Kirsling moved for a new trial pursuant to rule 59(a) of the Utah Rules of Civil Procedure.[3] The motion was accompanied by an unsworn document signed by his attorney that purported to be Kirsling’s affidavit. As relevant here, Kirsling challenged the trial court’s decisions regarding child support and custody as well as the amounts Kirsling owed to Pulham for past-due child support and child care expenses.
¶15 With respect to the amounts owed to Pulham for past-due child support and child care expenses, Kirsling contended that, under rule 59(a)(4), he had newly discovered evidence that he could not have produced at trial. Referring to Pulham’s testimony that she did not receive a particular payment, he asserted that post-trial he was “able to obtain a photocopy of the cashed money order that was presented to [Pulham’s] counsel as settlement for the financial issues of the case” and that the new information affected the amounts he owed Pulham.
¶16 In denying the motion, the trial court began by characterizing the purported affidavit as “an argument by [Kirsling’s] counsel, complaining generally of the failure of the Court to find in [Kirsling’s] favor.” The court then rejected Kirsling’s newly discovered evidence argument, explaining that Kirsling had not established “whether or why he was unable to obtain this evidence prior to trial” and also had not shown that “the introduction of the evidence would have resulted in a different trial outcome.”[4]
¶17 Kirsling raised another argument under rule 59(a)(6), attacking the court’s determination that Pulham’s gross monthly income was $30 for child support purposes. Kirsling argued that the evidence was insufficient because the court did “not show[] why Ms. Pulham’s income was not calculated” based on her employment potential and probable earnings pursuant to a statute governing the imputation of income. Kirsling asserted this same argument as an error of law under rule 59(a)(7).
¶18 The court rejected Kirsling’s arguments. It explained that Utah Code section 78B-12-203(7) dictates the circumstances under which the trial court may impute income and gives discretion to the court to impute under those certain circumstances. The court then explained that it “did not impute income to [Pulham]” and that the application of this statute was “not the basis for a complaint of ‘insufficient evidence’” under rule 59(a)(6). Similarly, the court concluded that, in relation to rule 59(a)(7), it had not committed an error of law, because it had “exercised its discretion in determining not to impute income to [Pulham], something the statute authorizes it to do.”
¶19 Concerning custody, Kirsling contended that, under rule 59(a)(7), the trial court erred when it did not follow the recommendations of the custody evaluator. In particular, he stated that the court failed to provide “a detailed and clear finding” explaining why it did not adopt the custody evaluator’s recommendation. The court rejected this argument as well, maintaining that it had “articulated the reasons for its decision regarding custody.”
¶20 The trial court denied the motion for a new trial on June 17, 2015. Kirsling filed a timely notice of appeal, giving rise to the First Appeal. In his notice of appeal, Kirsling stated that he thereby appealed “the final Decree of Divorce . . . entered in this matter on June 17, 2015,” and that the appeal was “taken from such parts of the judgment as follow”: Paragraph 3 regarding child support calculation; Paragraph 4 regarding child support, ORS fees, and child care expenses; and Paragraph 8 regarding contempt.
The Petition to Modify the Amended Decree
¶21 On the same day he filed the First Appeal, Kirsling petitioned the trial court for a modification of the Amended Decree. Specifically, Kirsling asserted that “[a] significant change of circumstances has occurred as a result of [his] recent relocation to Stansbury Park, Utah, which is located approximately 15 minutes of driving time from his home to the home of [Pulham].” Kirsling further asserted that at the time the trial court entered the Amended Decree he lived approximately forty-five minutes away from Pulham and that “[t]his distance affected the Court’s awarding of parent time for both the overnight schedules, school choices and the midweek parent time determinations.” Because the long “commute time no longer exist[ed],” Kirsling requested that the court change the schedule to “fifty-fifty,” essentially asking to have Child spend every other week with him.[5]
¶22 Pulham responded by filing a motion to dismiss the petition to modify. Although she did not dispute that Kirsling had relocated, she contended that Kirsling’s move from Taylorsville to Stansbury Park did “not represent a change of circumstances sufficient to modify the controlling order,” because it did not affect her “parenting ability” and the “functioning of the current custodial relationship.”
¶23 A court commissioner heard the matter and recommended that the trial court deny Pulham’s motion to dismiss. Pulham objected to that recommendation, and the trial court ultimately resolved the petition to modify on its merits. The court observed that it had “considered the distance the minor child would be subjected to traveling” when entering its custody and parent-time orders in the Amended Decree, but it expressed concern that Kirsling’s “stop” in Stansbury Park would be “brief,” in light of his “somewhat migratory history.” The court also expressed concern that, “given the timing of the move and the petition itself, [Kirsling] made this move solely to create a change in circumstances in an effort to succeed in modifying the decree.”
¶24 Although Kirsling’s relocation closer to Pulham “benefits
all parties, including the minor child,” the court concluded that the “move, in and of itself, is wholly insufficient to create a sufficient change of circumstances to warrant reconsideration” of the Amended Decree, and it denied Kirsling’s petition to modify. Kirsling filed another notice of appeal, which triggered the Second Appeal.
ANALYSIS
I. The First Appeal
¶25 Kirsling raises three issues in the First Appeal. First, he contends that the trial court erred in calculating “Pulham’s income at $30 per month for child support purposes.” Second, he contends that it erred in denying his motion for a new trial on his claim of newly discovered evidence related to child care expenses. Third, he contends that the trial court erred in deviating “from the recommendations of the court-appointed custody evaluator without making any specific findings on the record as to its deviation.” Before we reach the merits of these contentions, however, we must consider whether Kirsling’s notice of appeal vested this court with jurisdiction to consider and address these issues.
A. The Scope of This Court’s Jurisdiction
¶26 As a threshold matter, we first consider Pulham’s argument that this court lacks jurisdiction to review certain issues on appeal. Pulham argues that “Kirsling’s notice of appeal invokes this Court’s jurisdiction over only some of the issues he has argued in his brief.” According to Pulham, “Kirsling’s notice of appeal references only the decisions in the Amended Decree relating to child support, a monetary judgment, and the dismissal of contempt charges,” and “[b]ecause [his] notice of appeal does not reference the district court’s custody award or the . . . denial of [his] motion for a new trial, this Court lacks appellate jurisdiction over issues related to those decisions.” Kirsling counters that a notice of appeal’s “designation of the specific parts [of an order or judgment] does not waive the appeal of the whole order or judgment” and that therefore this court “has jurisdiction over all of the issues raised on appeal . . . , as well as the issues concerning the post-trial motion” for a new trial.
¶27 “Whether appellate jurisdiction exists is a question of law . . . .” Goggin v. Goggin, 2011 UT 76, ¶ 16, 267 P.3d 885 (quotation simplified). Likewise, we “determine whether a Notice of Appeal is adequate to grant this court jurisdiction as a matter of law.” State v. Valdovinos, 2003 UT App 432, ¶ 13, 82 P.3d 1167 (quotation simplified).
¶28 The Utah Supreme Court has “emphasized that the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case . . . [because the opposing party] is entitled to know specifically which judgment is being appealed.” Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474 (quotation simplified). Rule 3(d) of the Utah Rules of Appellate Procedure dictates the content of a notice of appeal: “The notice of appeal . . . shall designate the judgment or order, or part thereof, appealed from . . . .” Utah R. App. P. 3(d); see also U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 11, 990 P.2d 945. This requirement “is jurisdictional.” Jensen, 1999 UT 10, ¶ 7. As a result, an “order not identified in the notice of appeal falls beyond [this court’s] appellate jurisdiction.” In re adoption of B.B., 2017 UT 59, ¶ 106.
¶29 “[W]here the notice of appeal sufficiently identifies the final judgment at issue and the opposing party is not prejudiced, the notice of appeal is to be liberally construed.” Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 14, 199 P.3d 957 (quotation simplified). Put another way, “[w]here the appealing party’s intent is clear and the appellee suffers no prejudice, the notice of appeal is sufficient.” Id. ¶ 15.
¶30 As noted above, rule 3(d) requires that the notice of appeal “designate the judgment or order, or part thereof, appealed from.” Utah R. App. P. 3(d) (emphasis added). If an appellant has adequately designated the judgment or order appealed from, we do not read the rule’s language as also requiring the appellant to designate the “part thereof.” See id. But where an appellant chooses to identify the specific parts of a judgment subject to the appeal and gives notice of its intent to appeal only those parts of a particular judgment, our jurisdiction is limited by that representation. Cf. In re adoption of B.B., 2017 UT 59, ¶ 106. In other words, “our jurisdiction is limited by the wording of the notice.” Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 135 (2d Cir. 2016) (quotation simplified) (holding that the language of a notice of appeal limits an appellate court’s jurisdiction to those issues expressly identified in the notice);[6] see also Muller v. Holmes, 353 F. App’x 664, 666 (2d Cir. 2009) (same); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977) (“When an appeal is taken from a specified judgment only or from a part of a specified judgment, the court of appeals acquires thereby no jurisdiction to review other judgments or portions thereof not so specified or otherwise fairly to be inferred from the notice as intended to be presented for review on the appeal.” (emphasis added)).
¶31 Here, Kirsling’s notice of appeal for the First Appeal states that he appeals “the final Decree of Divorce . . . entered in this matter on June 17, 2015,” and specifies that the appeal “is taken from such parts of the judgment as follow”:
Paragraph 3 regarding child support calculation;
Paragraph 4 wherein Mr. Kirsling was ordered to pay . . . child support and ORS fees and . . . child care expenses; and
Paragraph 8 wherein all charges of Contempt are dismissed.
The Amended Decree was entered on November 4, 2014. The order denying Kirsling’s motion for a new trial was entered on June 17, 2015. When the notice of appeal is considered in context, its reference to “the final Decree of Divorce” manifests Kirsling’s intent to appeal from the Amended Decree, and its reference to an order “entered in this matter on June 17, 2015,” manifests his intent to appeal from the order denying his motion for a new trial. See Speros v. Fricke, 2004 UT 69, ¶ 15, 98 P.3d 28 (interpreting a notice of appeal as an appeal from a January 15 order despite its reference to a nonexistent January 11 order because the appellant’s intent to appeal the former order was evident from the context). We thus conclude that Kirsling’s notice of appeal sufficiently designates the Amended Decree and the order denying the motion for a new trial as “the judgment[s] or order[s] . . . appealed from.” Utah R. App. P. 3(d).
¶32 But the notice of appeal does more; it also designates the “part[s] thereof” to be appealed. See id. It does so by stating that the appeal “is taken from such parts of the judgment as follow”: Paragraph 3 regarding child support; Paragraph 4 regarding past-due child support, ORS fees, and child care expenses; and Paragraph 8 regarding contempt. Because the Amended Decree has paragraph numbers and subject matters that correspond to those mentioned in the notice of appeal, we read the notice of appeal’s references to specific paragraphs as referring to Paragraphs 3, 4, and 8 of the Amended Decree. We thus construe the notice of appeal as manifesting Kirsling’s intent to contest on appeal only the issues of child support, past-due child support, ORS fees, child care expenses, and contempt. In contrast, the notice of appeal does not convey Kirsling’s intent to appeal issues related to the custody evaluation or the parenting plan— issues that were resolved in other paragraphs of the Amended Decree that are not cited in the notice of appeal. By expressly identifying the parts of the trial court’s ruling from which the appeal was taken, Kirsling manifested an intent not to appeal the other parts of the trial court’s Amended Decree and its related order denying his post-trial motion.[7]
¶33 In sum, because Kirsling’s notice of appeal identifies the specific parts of the trial court’s Amended Decree that he contests on appeal, our jurisdiction is limited to those particular parts. To be precise, this court has jurisdiction to review issues related to “the child support calculation”; the order directing Kirsling to pay ORS fees, past-due child support, and child care expenses; and the dismissal of the contempt charges.[8] The issues in his opening brief that are not identified in his notice of appeal—relating to the custody evaluation and the parenting plan—are outside this court’s jurisdiction. Cf. In re adoption of B.B., 2017 UT 59, ¶ 106 (determining that the supreme court had no jurisdiction to review a consent order, where that order was not mentioned in the notice of appeal and where that order was a distinct final judgment from another final judgment that was properly identified in the notice of appeal). Having identified those issues that are properly before this court in the First Appeal, we now address their merits.
B. Calculation of Income for Child Support Purposes
¶34 Kirsling contends that the trial court erroneously calculated Pulham’s monthly income for child support purposes as $30, asserting that “[e]ither the $30 per month finding regarding Pulham’s income was supported by insufficient evidence, or the trial court erroneously imputed income to her absent proper procedure.” In his view, Pulham’s income should have been imputed at a much higher amount. He thus asserts that the trial court’s error resulted in “an excessive award of child support to Pulham” and asks us to reverse and remand for the trial court to “determine the income based on [Pulham’s] historical income.”
¶35 Because trial courts have broad discretion to award child support, we will not disturb such a decision “absent an abuse of discretion.” Roberts v. Roberts, 2014 UT App 211, ¶ 7, 335 P.3d 378. “That means that as long as the court exercised its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions, we will not substitute our judgment for the trial court’s.” Id. (quotation simplified). Likewise, we review the trial court’s denial of Kirsling’s motion for a new trial for abuse of discretion. See Wall v. Wall, 2007 UT App 61, ¶ 8, 157 P.3d 341. We will set aside the trial court’s factual findings only if they are clearly erroneous. Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (“A trial court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” (quotation simplified)).
¶36 We begin with Kirsling’s contention that the trial court’s finding regarding Pulham’s income is clearly erroneous because it lacks evidentiary support. On this point, we agree that no evidence adduced at trial supported the conclusion that, at the time of trial, Pulham had a monthly income of $30. It was undisputed that Pulham was unemployed and cared for her young children full-time. The trial court, however, did not purport to base its determination of income on the testimony or other evidence at trial. Rather, the court twice stated that its income determination was based on the parties’ “stipulated monthly gross incomes.”
¶37 Kirsling does not acknowledge the trial court’s explanation that its income determination was not based on evidence but on a stipulation by the parties. See Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (requiring an appellant to address the basis for the trial court’s ruling). Nevertheless, we acknowledge that the referenced stipulation does not appear to be in the record on appeal. And, when asked in oral argument to explain the origin of the $30 figure, counsel for Pulham admitted that he did not know.
¶38 But even assuming the court erred in determining that the parties stipulated to Pulham’s monthly income in the amount of $30, we conclude that the error would not warrant reversal. “[W]e will not reverse a judgment merely because there may have been [an] error; reversal occurs only if the error is such that there is a reasonable likelihood that, in its absence, there would have been a result more favorable to the complaining party.” Portfolio Recovery Assocs., LLC v. Migliore, 2013 UT App 255, ¶ 15, 314 P.3d 1069 (quotation simplified); see also Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). As noted above, the undisputed evidence at trial showed that Pulham was unemployed and had no income. Thus, if the court erred in attributing some income to her based on a stipulation, that error arguably favored Kirsling. At the least, Kirsling has not demonstrated that if Pulham’s income was decreased from $30 to $0 that his child support obligation would be reduced. As a result, we will not reverse the trial court on this basis.
¶39 We further conclude that Kirsling has not established that the alleged error of which he complains entitles him to his requested relief—a new trial with the opportunity to request the imputation of additional income to Pulham based on evidence not presented at trial. Kirsling did not move for a new trial on this issue under rule 59(a)(4) of the Utah Rules of Civil Procedure based on a claim of newly discovered evidence, and he has not shown that the court committed an error of law by not imputing income to Pulham based on her anticipated earnings or the federal minimum wage such that a new trial would be warranted under rule 59(a)(7). See Utah Code Ann. § 78B-12-203(7) (LexisNexis 2012) (allowing under certain circumstances for the imputation of income for child support purposes based on employment potential and anticipated earnings or the federal minimum wage for a forty-hour work week).[9] See generally Utah R. Civ. P. 59(a)(4), (a)(7) (2014) (permitting the court to grant a new trial on the grounds of newly discovered evidence or errors in law).
¶40 Income in a contested case may be imputed under Utah Code section 78B-12-203 only if the court “enters findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(7)(a). Where income is imputed, it “shall be based upon [the parent’s] employment potential and probable earnings,” id. § 78B-12-203(7)(b), or, where a parent “has no recent work history” or an unknown occupation, “income shall be imputed at least at the federal minimum wage for a 40-hour work week,” id. § 78B-12-203(7)(c). Moreover, income “may not be imputed” if certain conditions exist, including where “the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn.” Id. § 78B-12-203(d)(i).
¶41 The subject of imputation of income was not raised until Kirsling’s post-trial rule 59 motion. And, as Kirsling concedes on appeal, none of the factors relevant to imputing income to Pulham based on her employment potential and probable earnings were discussed, and information about those factors was not placed on the record. In fact, the only evidence at trial arguably relevant to the imputation of income was that Pulham worked for a time but that she “barely made anything” after paying for child care. Given that the record contains no evidence regarding Pulham’s employment potential and probable earnings, and given that her undisputed testimony was that the cost of child care approached the amount of income she previously had earned, see id., we cannot conclude that the trial court committed legal error in not imputing income to Pulham under section 78B-12-203(7)(b).
¶42 Similarly, Kirsling’s argument that the trial court should have imputed income to Pulham under Utah Code section 78B12-203(7)(c) at the federal minimum wage also fails. Not only did Kirsling not ask for imputation under this provision at trial or in his post-trial motion, but he now admits that “Pulham does have recent work history.” Thus, he implicitly concedes that imputation under that section would not have been appropriate. See id. § 78B-12-203(7)(c) (“If a parent has no recent work history or a parent’s occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40-hour work week.” (emphasis added)). We therefore affirm the trial court’s child support order and its denial of Kirsling’s related rule 59 motion.[10]
C. Newly Discovered Evidence Related to Child Care Expenses
¶43 Kirsling next contends that the trial court erred in denying his motion for a new trial when it refused to consider newly discovered evidence relating to past-due child care expenses. According to Kirsling, he “had been misinformed at the time of trial that he could not obtain evidence to show that Pulham had received and cashed” a money order that he had given to her counsel, but he was able to obtain a copy of that cashed money order after trial. Kirsling asserts that he undertook due diligence but that the misinformation given to him was “outside of his control.” He further asserts that the copy of the cashed money order would “affect[] the financial settlement ordered by the court” and that therefore the court should have granted him a new trial. [11]
¶44 Rule 59(a)(4) provides that a new trial may be granted if a party shows the existence of material and “[n]ewly discovered evidence, . . . which he could not, with reasonable diligence, have discovered and produced at the trial.” Utah R. Civ. P. 59(a)(4) (2014). Such a motion “shall be supported by affidavit.” Id. R. 59(c). “In deciding whether to grant a new trial, the trial court has some discretion, and we reverse only for abuse of that discretion.” Wall v. Wall, 2007 UT App 61, ¶ 8, 157 P.3d 341 (quotation simplified).
¶45 The trial court denied Kirsling’s rule 59 motion based on his claim of newly discovered evidence. The court reasoned that he had not established “whether or why he was unable to obtain this evidence prior to trial” and had not shown that “the introduction of the evidence would have resulted in a different trial outcome.”
¶46 Kirsling’s argument fails because he has not addressed the trial court’s rationale for denying his motion. See Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (explaining that an appellant must address and show error in the basis for the trial court’s ruling). Moreover, though Kirsling recites the factual basis for his claim that evidence was newly discovered, he cites no evidentiary basis for his assertions that he could not obtain the relevant evidence prior to trial. Aside from his rule 59 motion and memorandum, the only material that Kirsling presented to the trial court in support of his newly discovered evidence claim was a document signed by his attorney purporting to be Kirsling’s affidavit. Rule 59(c) requires that a newly discovered evidence claim be “supported by affidavit,” Utah R. Civ. P. 59(c) (2014), but, as the trial court correctly noted, the purported affidavit is “more accurately characterized as an argument by [Kirsling’s] counsel.” Given Kirsling’s failure to provide the trial court with evidentiary support, the court did not exceed its discretion in denying Kirsling’s motion.
II. The Second Appeal
¶47 The Second Appeal centers on the trial court’s denial of Kirsling’s petition to modify the Amended Decree. We first address Kirsling’s sole argument on appeal regarding that decision, and then address the parties’ requests for an award of attorney fees incurred in the Second Appeal.
A. The Petition to Modify
¶48 Kirsling argues that the trial court “applied an incorrect heightened standard to arbitrarily foreclose modification” on the basis that “a substantial change of material circumstances had not occurred.” According to Kirsling, he was asking for a modification of parent-time, and the trial court therefore should have applied “a less strict” standard.
¶49 “We generally review the determination to modify a divorce decree for an abuse of discretion. However, to the extent that determination is based on a conclusion of law, we review it for correctness.” Snyder v. Snyder, 2015 UT App 245, ¶ 9, 360 P.3d 796 (quotation simplified).
¶50 The Utah Supreme Court has recognized that the threshold “change in circumstances required to justify a modification of a divorce decree varies with the type of modification sought.” Haslam v. Haslam, 657 P.2d 757, 758 (Utah 1982). As a general rule, modifying a custody order requires a showing of a substantial and material change in circumstances. Doyle v. Doyle, 2011 UT 42, ¶¶ 24–25, 258 P.3d 553. In contrast, altering parent-time arrangements requires a showing of changed circumstances, but that “showing does not rise to the same level as the substantial and material showing required when a district court alters custody.” Jones v. Jones, 2016 UT App 94, ¶ 10, 374 P.3d 45 (citing Becker v. Becker, 694 P.2d 608, 609, 611 (Utah 1984); Haslam, 657 P.2d at 758); accord Blocker v. Blocker, 2017 UT App 10, ¶¶ 12–14, 391 P.3d 1051.
¶51 Contrary to Kirsling’s contention, the trial court did not apply a “substantial change of material circumstances” standard. The court ultimately stated that Kirsling’s move was “insufficient to create a sufficient change in circumstances to warrant reconsideration of the Court’s Order.”[12] (Emphasis added.) And while the court described the standard as “high,”nowhere in its order did it identify the “substantial change of material circumstances” standard as the one that must be met.
¶52 Even more importantly, however, the trial court did not arbitrarily refuse to hear Kirsling’s petition based on an application of a standard. Rather, the court considered the merits of Kirsling’s petition. The court accepted as true that Kirsling moved to Stansbury Park after the entry of the Amended Decree, but it rejected his assertion that the court’s custody and parent-time orders were driven primarily by the fact that Kirsling lived in Taylorsville at the time of trial. The court expressed concern that Kirsling’s “stop in [Stansbury Park would] be . . . brief,” given Kirsling’s “migratory history.” The court also expressed concern that the move was motivated to create a change of circumstances to justify a modification of the Amended Decree. Thus, rather than reject Kirsling’s petition on the basis that a move by one parent fails to constitute a “substantial change in material circumstances,” the court considered its merits and determined why Kirsling’s move, under the relevant circumstances, did not warrant modification of the court’s order.
¶53 But even assuming the court’s order could be construed as having applied a “substantial change in material circumstances” standard, Kirsling’s argument would fail for lack of preservation. “To preserve an argument for appellate review, the appellant must first present the argument to the district court in such a way that the court has an opportunity to rule on it.” Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683 (quotation simplified). “We generally do not address unpreserved arguments raised for the first time on appeal.” Id.
¶54 Kirsling never alerted the court to his argument that his petition requested a type of modification that should be based on something less than a substantial and material change of circumstances. Instead, he practically invited the court to apply the heightened standard. Kirsling premised his petition on the occurrence of “[a] significant change in circumstances,” and in his briefing he referred to a move to a new community as an example of a “material and substantial change[]” justifying the modification of a custody award. These submissions— particularly the suggested standard—arguably invited the court to apply the standard about which Kirsling now complains. See Kerr v. City of Salt Lake, 2013 UT 75, ¶ 44, 322 P.3d 669 (stating that under the doctrine of invited error, “a litigant may not induce the trial court to make a ruling and then argue on appeal that the ruling was in error”). In any event, Kirsling did not preserve his argument that the court erred in applying the substantial change of circumstances standard rather than “a less strict” standard “for a change in parent time.” See Baumann v. Kroger Co., 2017 UT 80, ¶¶ 17–18 (deeming an argument unpreserved where the appellant did not argue for the more forgiving standard she advocated for on appeal and where she arguably invited the district court to apply the less forgiving standard). Thus, we will not now reverse the trial court’s denial of his petition to modify on that basis. See Gowe, 2015 UT App 105, ¶ 9.
B. Attorney Fees on Appeal
¶55 Both parties request an attorney fees award pursuant to rule 33 of the Utah Rules of Appellate Procedure. Rule 33 allows this court, if it determines that an appeal is “either frivolous or for delay,” to “award just damages, which may include . . . costs . . . and/or reasonable attorney fees, to the prevailing party.” Utah R. App. P. 33(a). “[P]arties seeking attorney fees under rule 33 face a high bar,” and the Utah Supreme Court has directed that such sanctions are warranted only in “egregious cases.” Porenta v. Porenta, 2017 UT 78, ¶ 51 (quotation simplified). We conclude that this case does not present an egregious case and therefore deny the parties’ requests for attorney fees.
CONCLUSION
¶56 In the First Appeal, we conclude that only two of the three issues that Kirsling argues on appeal were identified in his notice of appeal and are properly before this court. On the merits of those two issues, we conclude that Kirsling’s challenge to the trial court’s calculation of income fails and he has not shown that the trial court erred in denying his motion for a new trial based on his claim of newly discovered evidence. As for the Second Appeal, we conclude that the trial court did not err in denying Kirsling’s petition to modify the Amended Decree. Accordingly, we affirm the trial court’s decisions in both appeals.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] We have consolidated Case No. 20150577-CA and Case No. 20160236-CA for purposes of this opinion.
[2] This child support worksheet is not part of the record on appeal.
[3] Rule 59(a) provided, in relevant part, that “a new trial may be granted to . . . any . . . part[y] and on all or part of the issues, for any of the following causes[:] . . . (a)(4) [n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; . . . (a)(6) [i]nsufficiency of the evidence to justify the verdict or other decision”; or “(a)(7) [e]rror in law.” Utah R. Civ. P. 59(a) (2014). Because rule 59 has been amended, we cite the version in effect at the time Kirsling filed his motion.
[4] Kirsling also cited rule 59(a)(3), making a related argument that he was surprised by Pulham’s assertion at trial that she had not received the settlement payment and that it was “not prudent to expect [him to] guard against” that assertion. While Kirsling briefly refers to rule 59(a)(3) in his statement of the issues on appeal, he makes no argument based on surprise and instead focuses this portion of his appeal on rule 59(a)(4) and his contention of newly discovered evidence. Accordingly, we do not address whether the trial court abused its discretion in not granting a new trial under rule 59(a)(3). See Wintle-Butts v. Career Service Review Office, 2013 UT App 187, ¶ 20, 307 P.3d 665 (refusing to consider an undeveloped and inadequately briefed issue).
[5] The parties seem to agree that Kirsling was trying to move from 40% overnights to 50% overnights.
[6] Substantively similar to Utah Rule of Appellate Procedure 3(d), the federal counterpart requires that a party designate in its notice of appeal “the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B); see also Drew v. Lee, 2011 UT 15, ¶ 16 & n.22, 250 P.3d 48 (indicating that where federal court procedural rules are substantively similar to Utah’s rules, we may look to interpretations of the federal rules for guidance and as persuasive authority).
[7] The same intent is also manifest in Kirsling’s petition to modify the Amended Decree, which he filed contemporaneously with his notice of appeal. In his motion, he advised the trial court that “[a] Notice of Appeal on three sections of the Decree of Divorce is being filed, but none of these sections pertain to or affect this Petition to Modify regarding parent time.” In his supporting affidavit, Kirsling further “emphasize[d] that none of the items that [he] . . . [n]oticed [for appeal] pertain to the issues” raised in his petition to modify the trial court’s determinations regarding parent-time.
[8] Despite the fact that the issues related to the ORS fees and the contempt charges are within our jurisdiction, Kirsling has not briefed on appeal any challenge to the trial court’s decisions on those issues. Consequently, we do not consider them further.
[9] This statutory provision was recently amended. We cite the version in effect when the trial court determined Kirsling’s child support obligation.
[10] In his motion for a new trial, Kirsling also argued that the child support order should have given him credit for other children in his home. The trial court rejected that argument. On appeal, Kirsling refers to these facts, but he does not present any related analysis supported by citations to the record and legal authority. See Utah R. App. P. 24(a)(9) (2016). He therefore has not carried his burden to show error in the court’s decision on this point.
[11] Kirsling purports to challenge the trial court’s calculation of the amounts he owed Pulham for past-due child support and child care expenses, asserting that the court erred “in determining the financial award” and “in denying the financial settlement or offsetting amounts owed to Pulham.” But because his related briefing focuses on the denial of his rule 59 motion and does not attempt to show other error in the Amended Decree’s calculation of the amounts Kirsling owed to Pulham, we construe his argument as pertaining solely to the court’s denial of the rule 59 motion.
[12] Kirsling points to this statement as evidence that the court applied the “substantial change in material circumstances” standard to foreclose modification. But this statement cannot be read in isolation. As we explain below, because the court actually reached the merits of Kirsling’s petition, we cannot agree that the court refused to reconsider its prior order based on an unmet threshold.
AMELIA GAYATREE LEFEVRE,
Appellee,
v.
CASEY LEE MACKELPRANG,
Appellant.
Opinion No. 20171006-CA
Filed March 28, 2019
Sixth District Court, Panguitch Department
The Honorable Paul D. Lyman No. 154600028
Van Mackelprang and Julie J. Nelson, Attorneys for Appellant
Douglas L. Neeley, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY concurred.
HARRIS, Judge:
¶1 Casey Lee Mackelprang (Father) asked the trial court to modify the governing divorce decree (the Decree) to install him as the primary custodial parent or, at least, change the parenttime schedule to increase the number of nights his daughter (Child) spent at his house. After a trial, the court denied his request, and in addition ordered him to pay the full cost of a custody evaluation. Father now asks us to review the trial court’s conclusions, and we agree with Father that those conclusions were infirm. Accordingly, we vacate the trial court’s order and remand the case for further proceedings.
BACKGROUND
¶2 After nearly six years of marriage, Father and Amelia Gayatree LeFevre (Mother) divorced in August 2014. They had one child—Child—together, who was five years old at the time of the parties’ divorce.
¶3 For the first few years of their marriage, the couple lived in Cedar City, Utah with Child, who had some medical issues and required extra attention. According to Mother, she provided nearly all care for Child during this time period, even though she was taking classes at a university, and even though Father was not employed full-time. She maintained that Father often refused to help with child care, and when she needed someone to care for Child so that she could attend classes, she found it necessary to call upon her sister, her parents, and even a few friends, because Father was unwilling to do so himself. By the time Child was three, Father had never spent a night alone with Child and was not comfortable doing so.
¶4 Mother and Father separated in April 2012. At that point, both Mother and Father left Cedar City to live with family: Mother and Child moved to Boulder, Utah, and Father moved to Kanab, Utah. A few months later, however, in the late summer of 2012, Mother returned to Cedar City to begin work on a master’s degree. Father also soon returned to Cedar City, but the parties lived in separate residences. At that point, while Mother continued to act as Child’s primary caregiver, the parties worked out an informal parent-time arrangement in which Mother would take Child over to see Father on occasion but, because Father was still not entirely comfortable with caring for Child on his own, Mother was often present during these visits. Most of these visits were daytime visits for a few hours, although Father did care for Child overnight on a handful of occasions.
¶5 Mother filed for divorce in August 2012 and, in September 2013, the parties entered into a stipulated settlement agreement that designated Mother as Child’s primary physical custodian. The agreement ordered parent-time for Father every other weekend and every other Wednesday evening, a schedule that (although it did not mention the statute) was similar to the one set forth in Utah Code section 30-3-35. Nearly a year later, in August 2014, the trial court signed the Decree, incorporating the parties’ agreed-upon custody and parent-time arrangement.
¶6 During this period, Father and Mother each lived in Cedar City during the week, but on most weekends Mother traveled to Boulder to visit family and to work. Mother always took Child with her to Boulder for the weekends, even on the alternating weekends on which Father would have otherwise been entitled to parent-time, and at the time Father voiced no objection. Father also was not in the habit of exercising the regular mid-week visits to which he was entitled, instead depending on Mother to bring Child over to his house for many short weekday visits as her class schedule allowed. And Father did not exercise his right to a multi-week summertime visit in 2014, even though the stipulation entitled him to do so.
¶7 After nearly three years in Cedar City, Mother and Child moved back to Boulder in April 2015, and at this point Father began to regularly exercise the weekend parent-time and the multi-week summertime visits to which the Decree entitled him. Although Father did not exercise his mid-week visits due to the distance between Cedar City and Boulder, he began to make significant efforts to travel to Boulder to participate in important events in Child’s life, such as school programs and dance competitions, even when such events did not occur during his weekend. After a while, Father was of the view that things were going so well with his parent-time that he asked Mother if she would agree to increasing the number of overnights he had with Child, but Mother did not agree.
¶8 In November 2015, Father filed a petition to modify the Decree, requesting that the court alter the custody arrangement to designate him, rather than Mother, as the primary physical custodian. In the petition, among other things, Father argued that a modification was warranted because Mother’s move to Boulder in April 2015 constituted a substantial and material change in circumstances because Father was no longer able to see Child as often as he had when Mother was living in Cedar City. Father also argued that Mother was not spending a substantial amount of her parent-time with Child because she was working two jobs that required her to leave Child in the primary care of Child’s maternal grandmother. Mother opposed Father’s petition, and eventually filed a counter-petition requesting that the Decree be modified to remove redundant material, clarify issues, and make minor alterations to the parent-time schedule.
¶9 In November 2016, while the competing petitions were pending, Mother notified Father that she intended to relocate with Child to Las Vegas, Nevada. Mother proposed that the parties continue to follow the parent-time schedule set forth in the Decree until her move, at which point they should adopt the parent-time schedule found in Utah Code section 30-3-37(6). Father opposed Mother’s request, and asked the court to hold a hearing to consider Mother’s proposed move. Father also asked the court to appoint a custody evaluator to assess the parties’ situation, a request Mother opposed on the ground that no such evaluation was necessary. Mother argued, in the alternative, that if the court did appoint an evaluator, it should order Father to pay all costs associated with the evaluation.
¶10 In early February 2017, Mother and Child relocated to Las Vegas. Shortly thereafter, the court appointed a custody evaluator (Evaluator) and ordered Father to front the costs associated with the appointment, but stated that it would make a final allocation of costs at a later date. The court also postponed any hearing on Mother’s relocation to Las Vegas until after the completion of the custody evaluation. Around this same time, in early 2017, in addition to regularly exercising his weekend and summertime parent-time—which he had been doing since April 2015—Father began to travel to Las Vegas once a week to exercise regular mid-week parent-time with Child.
¶11 Over the next few months, Evaluator conducted a number of interviews with Father, Mother, and Child, as well as home studies during which she observed Child. On November 1, 2017, Evaluator issued her report, in which she recommended—with one important qualification—that the status quo should continue, with Mother acting as the primary residential parent and with Father exercising parent-time on alternating weekends and Wednesdays during the school year. The important qualification was that, if Father were to move to Las Vegas so as to be geographically closer to Mother and Child, she would alter her recommendation and urge the court to adopt the alternative parent-time schedule specified in Utah Code section 30-3-35.1 (section 35.1), which would result in Father having the right to five overnights (instead of two) in every two-week period.
¶12 After learning of Evaluator’s recommendations, Father almost immediately moved to Las Vegas.[1] Just a few weeks later, in mid-November 2017, the court held a trial on the competing petitions to modify. Evaluator testified about her report and evaluation, and recommended that, because Father had relocated to Las Vegas, the court should implement a custody and parent-time arrangement based on section 35.1. She opined that adopting section 35.1 would have a positive impact on Child and the proposed schedule would not hurt the bond Child has with Mother, but would strengthen the bond Child has with Father by providing Child an opportunity to develop a structure and routine with him during the additional mid-week and weekend overnights. Evaluator further opined that the proposed schedule would help reduce communication problems the parties had been experiencing under the current schedule because drop-offs during the school year would occur at school. She also offered her observation that Father was a good parent who since April 2015 had made significant efforts to spend quality time with Child, and opined that Father’s parenting actions over the past two-and-a-half years were more relevant than his actions during the first six years of Child’s life.
¶13 Evaluator also recommended that Father’s summertime parent-time should occur in one large block to reduce both the number of transitions between the parents as well as the amount of time Child spends in the car traveling back and forth from Las Vegas to Utah. Finally, in an effort to reduce the frequency of Father’s requests for virtual parent-time, Evaluator recommended that Father’s video or phone chats with Child should be held at scheduled times three days per week, and that the parties’ email communications regarding Child be restricted to a particular day per week to facilitate more predictable and reliable communication.
¶14 At the conclusion of the trial, and after hearing directly from both Father and Mother, the trial court took the matter under advisement. A few days later, the court issued a written ruling on the petitions to modify, making a few changes to the parties’ Decree. Among other alterations, the court ordered that Father’s summertime parent-time be exercised in one large block and that Father exercise virtual parent-time only during three half-hour periods scheduled during the week. The court denied all of Father’s other requests to alter the custody and parent-time schedule, including Father’s request that parent-time during the school year be implemented according to section 35.1.
¶15 On that point, the court determined that the four prerequisites for implementation of the section 35.1 schedule were not met, and made factual findings in support of that conclusion, including the following: that Father “did not participate actively in [Child’s] life until the last couple of years”; that Father’s “plan to accomplish effective communication is to have a designated email answering day per week” and that Father’s “plan . . . does not appear to be adequate”; and that Father “presented no evidence other than his hope” that increased parent-time would be in Child’s best interest. From these findings, the court made legal conclusions that Father “has not adequately been involved in [Child’s] life”; that Father “has failed to present a plan to accomplish effective communication”; and that Father “has failed to present evidence that it will be in [Child’s] best interest to have increased overnight visits.” Because it considered the statutory prerequisites unsatisfied, the trial court declined Father’s invitation to award him additional parent-time under section 35.1.
¶16 The court also ordered Father to pay all costs related to Evaluator’s report. Although it did not provide reasons for its decision, it did note that Father “asked for the child custody evaluation with the hope that somehow it would find in his favor and it did not, so he should pay its entire cost.”
ISSUES AND STANDARDS OF REVIEW
¶17 Father now appeals the trial court’s ruling on his petition to modify, and asks us to review two aspects of that ruling. Father’s main complaint is with the court’s decision not to implement a parent-time arrangement based on section 35.1. We review a trial court’s custody and parent-time determination for abuse of discretion, and review any underlying factual findings for clear error. See Vaughan v. Romander, 2015 UT App 244, ¶¶ 7– 8, 360 P.3d 761. “A finding is clearly erroneous only if the finding is without adequate evidentiary support or induced by an erroneous view of the law.” Hale v. Big H Const., Inc., 2012 UT App 283, ¶ 9, 288 P.3d 1046 (quotation simplified).
¶18 Second, Father argues that the trial court abused its discretion in ordering him to pay the entire cost of the custody evaluation. When reviewing a court’s decision to allocate costs pursuant to Utah Code section 30-3-3, “we use an abuse of discretion standard.” Peterson v. Peterson, 818 P.2d 1305, 1310 (Utah Ct. App. 1991).
ANALYSIS
I
¶19 The main issue presented on appeal is whether the trial court erred by concluding that the statutory prerequisites set forth in Utah Code section 30-3-35.1(2) were not met. We find infirmities in the trial court’s conclusions, and therefore determine that remand is necessary.
¶20 “In all custody determinations, the [trial] court’s primary focus must be on the best interests of the child.” Pingree v. Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (quotation simplified). Our legislature has determined that each divorced parent “is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests.” Utah Code Ann. § 30-3-32(2)(b)(ii) (LexisNexis Supp. 2018). Relevant statutes prescribe a default minimum parent-time schedule “to which the noncustodial parent and the child shall be entitled,” id. § 30-3-35(2), unless either (a) “the court determines that Section 30-3-35.1 should apply” or (b) a parent can establish “that more or less parenttime should be awarded,” id. § 30-3-34(2). Under the default minimum parent-time schedule set forth in section 30-3-35, “the noncustodial parent is entitled to parent-time with the child during one weekday evening and on alternating weekends, which include Friday and Saturday overnights.” Lay v. Lay, 2018 UT App 137, ¶ 6, 427 P.3d 1221. This default statutory schedule affords the noncustodial parent two overnights in a typical twoweek period, and approximately ninety overnights during a typical calendar year (after holiday and summertime parent-time are accounted for).
¶21 As noted above, section 35.1 “provides an alternative statutory parent-time schedule” that—by extending weekend overnights by one night, and affording one weeknight overnight each week—offers the noncustodial parent the opportunity to enjoy five overnights in every two-week period, resulting in approximately 145 overnights in a typical calendar year See id. ¶ 7; see also Utah Code Ann. § 30-3-35.1(1)(a) (stating that the alternative schedule “is 145 overnights”).
¶22 A trial court may implement the alternative section 35.1 schedule only if “the parties agree or the noncustodial parent can demonstrate” the presence of at least four[2] factual circumstances: (a) that “the noncustodial parent has been actively involved in the child’s life”; (b) that either (i) “the parties are able to communicate effectively regarding the child,” or (ii) “the noncustodial parent has a plan to accomplish effective communications regarding the child”; (c) that “the noncustodial parent has the ability to facilitate the increased parent-time”; and (d) that “the increased parent-time would be in the best interest of the child.” Utah Code Ann. § 30-3-35.1(2). If all four of these elements are present, then the trial court may—but is not required to—implement the parent-time schedule set forth in section 35.1. See id. (stating that “the court may consider” the alternative schedule if the required factual elements are present); see also Lay, 2018 UT App 137, ¶ 13 (stating that “the noncustodial parent’s demonstration of the enumerated factors gives the court the discretion to consider the increased parenttime schedule, but there is no language in the statute making the court’s consideration of that schedule—much less its adoption— mandatory”).
¶23 In this case, the trial court determined that three of the four statutory prerequisites were not present, and therefore decided not to alter the parties’ parent-time arrangement to afford Father additional parent-time.[3] Father argues that the trial court’s determination is incorrect, and that all of the necessary prerequisites were in fact present on the facts presented at trial. In the discussion that follows, we examine each of the three remaining statutory prerequisites and, for the reasons set forth, we agree with Father that the trial court’s analysis was infirm.
A
¶24 The first of the three statutory requirements is that “the noncustodial parent has been actively involved in the child’s life.” Utah Code Ann. § 30-3-35.1(2)(a) (LexisNexis Supp. 2018). Father contends that he presented evidence conclusively demonstrating his active involvement in Child’s life. We agree.
¶25 At the outset of the discussion, it is important to note that the trial court did not actually make a finding or a conclusion to the contrary. The court’s specific finding was that Father “did not participate actively in [Child’s] life until the last couple of years,” implying that Father did participate actively in Child’s life during the “couple of years” prior to trial. (Emphasis added.) Indeed, the evidence presented to the court was overwhelming that, starting in approximately April 2015, Father exercised regular weekend and summertime parent-time according to the ordered schedule, and that he made extra effort as necessary to attend Child’s school functions and other celebrations in her life, even when those occurred outside his customary scheduled parent-time.
¶26 From this evidence, however, the trial court concluded that Father “has not adequately been involved in” Child’s life. In our view, this conclusion is not supported by the evidence presented, and is in any event not the conclusion required by the statute. Indeed, the word “adequately” does not appear in the statute, which instead asks the court to determine whether Father has been “actively” involved in Child’s life. See id. As noted above, at least for the thirty months prior to trial, Father was actively involved in Child’s life, as the trial court impliedly found.[4]
¶27 The only sensible explanation for the trial court’s conclusion is that the court was looking primarily at Father’s actions during the first six years of Child’s life, a period in which Father was not nearly as involved in Child’s life as he was during the thirty months leading up to trial. The relevant statute does not indicate whether a court should weigh recent behavior more heavily, and we certainly acknowledge that a parent who—in true “deathbed repentance” fashion—has been active in his child’s life for only a few days or weeks before trial may comfortably be considered to have not been actively involved in his or her child’s life, when that life is examined as a whole. But a parent who has—even in the eyes of his ex-spouse—been actively involved in his daughter’s life for the thirty-month period leading up to trial has clearly been “actively involved” in her life, and any finding or conclusion to the contrary is clearly erroneous and an abuse of discretion.
¶28 Accordingly, we agree with Father that he satisfied the first statutory prerequisite.
B
¶29 Next, the statute requires that Father demonstrate either (i) that “the parties are able to communicate effectively regarding the child,” or (ii) that he “has a plan to accomplish effective communications regarding the child.” Utah Code Ann. § 30-3-35.1(2)(b) (LexisNexis Supp. 2018). The trial court found that “[t]here is little meaningful communication between the parties,” and concluded that “[t]he parties do not communicate effectively.” Father does not challenge these determinations, and thereby concedes that he cannot meet the first statutory alternative. However, Father asserts that he presented a plan to address the parties’ communication issues, and argues that he can therefore meet the second statutory alternative. We agree.
¶30 The relevant statute requires only that Father present a plan for improved communication to the court; it does not require that Father’s plan be foolproof or even that Father’s plan—or any part of it—be adopted by the court. The statutory language requires only that the parent present a “plan to accomplish effective communication,” see id. § 30-3-35.1(2)(b), and Father did so here.
¶31 At trial, Father adopted and advocated for the communication plan recommended by Evaluator, which included several features designed to address the communication problems that the parties were experiencing. Among those were (a) limiting email communication between the parties to a “designated email day” on which both parents would be available to electronically express and respond to concerns regarding Child; (b) limiting Father’s virtual parenttime to three designated half-hour periods scheduled throughout the week, thereby limiting any ad hoc demands Father might make to speak with Child; and (c) maximizing the number of pickups and drop-offs that would occur at Child’s school rather than at Mother’s residence, thereby reducing the number of times Mother and Father saw each other.
¶32 The trial court ended up adopting one of these three recommendations in its ruling, in that it limited Father’s virtual parent-time to three scheduled half-hour periods each week. The court did not adopt the other two parts of this plan, perhaps in part because Mother expressed dislike for the “designated email day” idea, but the fact that the court declined to adopt Father’s plan in total does not mean that he did not have one. Indeed, the trial court itself referred to “[Father’s] plan” in its findings, later judging that plan to be inadequate. But an inadequate plan is still a plan, and the statute imposes no requirement that the plan be found by the court to be adequate. See id.
¶33 Under these circumstances, the trial court abused its discretion by concluding that Father “failed to present a plan to accomplish effective communication.” Father presented a plan for improved communication to the trial court, and thereby satisfied the second statutory prerequisite.
C
¶34 Finally, the statute requires that implementation of the alternative parent-time schedule would be “in the best interest of the child.” Utah Code Ann. § 30-3-35.1(2)(d) (LexisNexis Supp. 2018). Ordinarily, we afford a high degree of deference to a trial court’s “best interest” determination. See Vaughan v. Romander, 2015 UT App 244, ¶ 8, 360 P.3d 761 (stating that a trial court “has the discretion to establish parent-time in the best interests of the children,” and that a trial court’s “parent-time order” is reviewed for abuse of discretion (quotation simplified)). But here, the trial court did not engage in a traditional “best interest” analysis by weighing the evidence presented by each side and coming to a decision. Instead, the trial court stated flatly that Father had “presented no evidence other than his hope” that increased parent-time would benefit Child, and concluded that Father “failed to present evidence that it will be in [Child’s] best interest to have increased overnight visits.”
¶35 These statements are simply incorrect. Father presented quite a bit of evidence supporting his view that increased parenttime would be in Child’s best interest. Most significantly, Father presented the expert testimony of Evaluator, who offered her reasoned professional opinion that the best thing for Child— now that Father had relocated to Las Vegas and was closer to Mother and Child—would be for the court to implement the alternative parent-time schedule set forth in section 35.1. In addition, Father offered his own testimony along those same lines, and even cajoled Mother into acknowledging that Father was “a good father” and that she was in favor of Father and Child spending more time together (with the proviso that she preferred that the extra parent-time take place in the summertime, to cut down on the number of exchanges during the school year).
¶36 The trial court was certainly free to decline to credit Father’s evidence, and to give it less weight than Mother’s evidence.[5] Had it done so here, and articulated supported reasons for its decision, we undoubtedly would have affirmed that determination. But a trial court is not free to completely ignore a litigant’s evidence by making a “finding” that there is no such evidence when in fact there is.
¶37 Under these unique circumstances, we are not yet able to determine whether Father can (or cannot) satisfy the fourth statutory prerequisite. But the trial court’s stated reasons for rejecting Father’s position are unsupported, and are clearly erroneous and an abuse of discretion. We therefore must remand the case for further proceedings on this point, and specifically for the trial court to consider all of the evidence presented and to make a determination as to whether increased parent-time as per section 35.1 would be in Child’s best interest. Because all of the other prerequisites are met, if the trial court finds, on remand, that the “best interest” prerequisite is also met, the trial court will then be permitted to exercise its discretion, if it so chooses, to implement the alternative parent-time schedule. See Utah Code Ann. § 30-3-35.1(2) (stating that, if the statutory prerequisites are met, the court “may consider” the increased parent-time schedule); see also Lay v. Lay, 2018 UT App 137, ¶ 13, 427 P.3d 1221. (stating that, even where all of the statutory prerequisites are met, a trial court is not required to implement the alternative schedule, but may do so in its discretion).
II
¶38 The second issue Father raises on appeal is whether the trial court abused its discretion in ordering him to pay the entire cost of Evaluator’s report. In a case like this one, in which one party brings an action to establish an order of custody or parenttime, the trial court is statutorily authorized to make an award of costs. See Utah Code Ann. § 30-3-3(1) (LexisNexis 2013) (stating that “in any action to establish an order of custody [or] parenttime, . . . the court may order a party to pay the costs, . . . including expert witness fees, of the other party to enable the other party to prosecute or defend the action”). We have previously recognized that the relevant statute “is worded so as to afford divorce litigants a broader award of reimbursement, if need be, for the expenses of litigation, than those reimbursements authorized in other civil cases” in which costs are allocated according to who prevailed. Peterson v. Peterson, 818 P.2d 1305, 1310 (Utah Ct. App. 1991) (quotation simplified).[6] This rule is particularly appropriate in family law cases where many of the costs, including the cost of custody evaluations, relate to the best interests of the child and enable the court to make a reasoned determination on these important issues. See id.
¶39 While section 30-3-3(1) “empowers a court to use its sound discretion in determining whether to award costs based on need and ability to pay,” id., “the award or denial of such fees must be based on evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees,” Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998) (quotation simplified). “Failure to consider these factors is grounds for reversal on the fee issue.” Id.
¶40 Here, the trial court ordered each party to pay their own attorney fees and costs, but ordered Father to pay the entire cost of the custody evaluation. However, there is no indication in the court’s order that it considered the factors identified in Wilde, see id., including the parties’ financial ability to pay; indeed, the court gave no reasons at all for its decision to require Father to pay the entire cost of Evaluator’s report, other than to note that Father “asked for the child custody evaluation with the hope that somehow it would find in his favor and it did not, so he should pay its entire cost.”[7]
¶41 This conclusion is both inaccurate and contrary to the governing statute. Although Evaluator did not recommend that primary physical custody be changed from Mother to Father, Evaluator did recommend that Father be awarded additional parent-time if he moved to Las Vegas, which he did prior to trial. Accordingly, Evaluator’s recommendation at trial was that a parent-time schedule in accordance with section 35.1 should be implemented, which recommendation was in line with Father’s ultimate request at trial. In addition, the court’s conclusion that Father should pay the entire cost of the custody evaluation because the evaluation did not “find in his favor” is inconsistent with a proper subsection (1) analysis. As discussed above, while subsection (1) gives the trial court discretion in determining whether to award the costs of expert witness fees, an award of such fees must be based upon the parties’ ability to pay and the reasonableness of the fees, and not upon which party ultimately prevails. See Utah Code Ann. § 30-3-3(1); Wilde, 969 P.2d at 444. But instead of applying these factors, see Wilde, 969 P.2d at 444, the trial court appears to have erroneously allocated the cost of the custody evaluation by applying the “substantially prevailed” standard found in subsection (2), which is applicable only in actions to enforce—but not to establish—custody or parent-time arrangements, see Utah Code Ann. § 30-3-3(2).
¶42 Here, there is no indication that the trial court considered the appropriate factors. The absence of any such findings prevents a meaningful review of the trial court’s ruling, and we therefore remand the issue for further analysis. See Wilde, 969 P.2d at 444 (remanding the issue of fees and costs for reconsideration in light of the trial court’s failure to consider the needs of the parties and their ability to pay).
CONCLUSION
¶43 The trial court incorrectly—and prematurely—concluded that the statutory prerequisites to considering the section 35.1 parent-time schedule were not met in this case. The first three statutory prerequisites were in fact met, and the trial court’s ruling to the contrary was clearly erroneous. Also, the court incorrectly found that Father had submitted “no evidence” in his favor with regard to the fourth prerequisite. In addition, the trial court’s decision to order Father to pay all costs associated with Evaluator’s report appears to have been grounded in an inaccurate factual assumption as well as made pursuant to the incorrect statutory subsection. The trial court’s ruling with regard to parent-time and costs is hereby vacated, and this matter is remanded for further proceedings consistent with this opinion.
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[1] Neither party contests the trial court’s continuing exercise of jurisdiction over this case, even after both parties relocated to Nevada. See Utah Code Ann. §§ 78B-13-201(1), 202, 207 (LexisNexis 2018); see also In re S.W., 2017 UT 37, ¶ 10, 424 P.3d 7 (noting that a court that originally has exclusive and continuing jurisdiction over a child custody matter may dismiss a case on jurisdictional grounds if it finds, after certain criteria are met, that it is “an inconvenient forum,” but may do so “only once a child custody proceeding has been commenced in another state” (quotation simplified)). Even if we were to assume that the statutory criteria are met here given both parents’ relocation, see Utah Code Ann. § 78B-13-202(1)(b), the trial court made no finding that it was an inconvenient forum, and there is no indication, on the record before us, that any child custody proceeding involving these parties has been initiated in Nevada.
[2] The statutory list of elements is not intended to be exhaustive. Indeed, the statute itself proclaims that the court may take into account “any other factor the court considers relevant.” Utah Code Ann. § 30-3-35.1(2)(e) (LexisNexis Supp. 2018).
[3] All parties, as well as the trial court, agreed that Father has the ability to facilitate the increased parent-time, and that therefore the third statutory prerequisite is satisfied. Seeid. § 30-335.1(2)(c).
[4] Subsection (3) of section 35.1 provides factors that courts “shall consider” in determining whether a parent has been actively involved in a child’s life. See id. § 30-3-35.1(3). Those factors include whether the parent has “demonstrated responsibility in caring for the child”; whether the parent has “involvement in day care”; whether the parent has a “presence or volunteer efforts in the child’s school and at extracurricular activities”; whether the parent assists the child with homework, and whether the parent is involved in “preparation of meals, bath time, and bedtime for the child”; and whether the parent has a strong bond with the child. Id. In this case, the trial court’s findings reveal no effort to apply these factors. In any event, as noted, the evidence clearly supports the conclusion that these factors weigh in favor of Father, at least for the thirty-month period prior to trial: Father had a strong bond with Child, demonstrated responsibility for Child’s care, and had a presence at Child’s extracurricular and school activities.
[5] But if a trial court declines to adopt the recommendation of a custody evaluator, “the court is expected to articulate some reason for rejecting that recommendation.” Zavala v. Zavala, 2016 UT App 6, ¶ 44, 366 P.3d 422 (quotation simplified).
[6] This standard also differs from the standard for awarding costs and fees in actions brought “to enforce” an alreadyestablished order in a domestic case. See Utah Code Ann. § 30-3-3(2) (LexisNexis 2013). In enforcement cases, the standard is similar to the one ordinarily used in civil cases: courts are authorized to award fees to “the party [that] substantially prevailed upon the claim or defense.” Id. In such cases, a trial court “may disregard the financial need of the moving party” because awards under this subsection “serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Connell v. Connell, 2010 UT App 139, ¶¶ 28, 30, 233 P.3d 836 (quotation simplified). Thus, the “guiding factor” when awarding costs under subsection (2) is “whether the party seeking an award of fees substantially prevailed on the claim [or defense].” Id. ¶ 28.
[7] We do not mean to suggest that a court, when deciding how to allocate the costs of a custody evaluation, is forbidden from taking into account the identity of the party who asked for the evaluator to be appointed. In many cases, potentially including this one, that fact might be relevant to any determination about whether the costs are “reasonable.” SeeWilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998). In appropriate cases, a court may even condition the grant of a motion to appoint a custody evaluator upon the movant paying the entire cost of the evaluation. In this case, however, that does not appear to be what the trial court did.