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Tag: Hogge v. Hogge

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

2023 UT App 137  – Lobendahn v. Lobendahn

 

THE UTAH COURT OF APPEALS

MARCUS JAMES LOBENDAHN,

Appellant and Cross-appellee,

v.

LEEYEN MOEVAI LOBENDAHN,

Appellee and Cross-appellant.

Opinion

No. 20210278-CA

Filed November 16, 2023

Fourth District Court, Provo Department

The Honorable Thomas Low

No. 164400262

Luke A. Shaw and Jill L. Coil,

Attorneys for Appellant

Julie J. Nelson, Daniel Ybarra, and Alexandra

Mareschal, Attorneys for Appellee

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

concurred.

CHRISTIANSEN FORSTER, Judge:

 

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B.        The circumstances surrounding Son’s baptism

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

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

C.        The circumstances surrounding having Son tested for autism

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

D.        The circumstances surrounding obtaining the children’s passports

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

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

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

F.         The district court’s custody factor findings

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

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

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

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

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

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

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

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

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

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

III. Mother’s Attorney Fees Request

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

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

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

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

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

CONCLUSION

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

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


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

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

P.3d 733:

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

Id. ¶ 20 n.5.

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

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2018 UT App 181 – Chaparro v. Torero – default judgment, findings of fact, child custody

2018 UT App 181 – Chaparro v. Torero
THE UTAH COURT OF APPEALS

ELDA CHAPARRO, Appellant,
v.
ENRIQUE TORERO, Appellee.

Opinion No. 20170494-CA
Filed September 20, 2018

Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 134901419

Randall W. Richards, Attorney for Appellant
Deborah L. Bulkeley, Attorney for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.

HAGEN, Judge:

¶1        Elda Chaparro (Mother) appeals the district court’s entry of judgment by default as a sanction for her failure to pay a custody evaluator. The judgment awarded Enrique Torero (Father) sole physical custody of their minor child, A.T., modifying the custody arrangement from their divorce decree. The district court did not take any evidence to support a finding that a substantial change of circumstances had occurred or that a transfer in custody was in the child’s best interest. Because the district court did not make the required findings before entering the judgment by default, it exceeded its discretion in modifying the existing custody order. We reverse and remand.

BACKGROUND

¶2        Upon their divorce in September 2014, Mother and Father were granted joint physical and legal custody of their child, A.T. Eight months later, Mother filed a petition to modify the divorce decree based on changed circumstances. Mother sought sole physical custody of A.T. because Father had moved out of the area, making joint physical custody impractical. Father filed an answer denying Mother’s allegations and seeking dismissal for failure to state a cause of action. Father also filed a motion seeking a court determination of where the child should go to school as well as a custody evaluation.

¶3        At a hearing on the motions, the parties stipulated that A.T. would attend the school Father selected and agreed to a custody evaluation regarding Mother’s petition to modify. The court then ordered a custody evaluation, splitting the cost equally between the parties.

¶4        Pursuant to rule 4-903 of the Utah Rules of Judicial Administration, the domestic relations commissioner held a settlement conference in which the custody evaluator participated. When the parties were unable to reach a resolution, the commissioner certified the case for trial. The commissioner’s pre-trial order provided that either party could request a written report from the evaluator and that “both parties shall share the costs of the written report equally, one-half (1/2) to each.”

¶5        Father requested a written custody evaluation, and the evaluator informed the parties that the cost of such a report was $3,500, which needed to be paid in full before the report could be prepared. Father promptly paid the evaluator for his half.

¶6        Roughly two months before trial, the evaluator notified the court that she had not received payment from Mother and, consequently, would be unable to submit the report before trial.

Father subsequently filed a motion to continue the trial as well as a motion for sanctions and attorney fees.

¶7        In the motion for sanctions, Father alleged that the custody evaluator had recommended, during the settlement conference, that Father “should have physical and legal custody to the parties’ minor child and that [Mother’s] parent time should be substantially reduced.” Father also alleged that Mother had “no intention of complying with the court’s order and paying” the evaluator because the evaluation was adverse to her. As a sanction for Mother’s failure to pay, Father sought an order awarding him “the sole physical and legal custody of the parties’ minor child,” attorney fees, and other appropriate relief.

¶8        The district court held a telephone conference with the parties’ attorneys. Father’s attorney asserted that Mother was “flat-out refusing to pay” for the custody evaluation because “it was readily apparent [from the rule 4-903 hearing] that the report was very negative towards [Mother].” Mother’s attorney conceded, “[Father’s counsel] is correct, [the evaluator’s] discussion at the 4-903 hearing was not favorable to [Mother].” Her attorney explained that Mother did not intend to call the evaluator as a witness at trial and believed that the evaluator’s testimony was unnecessary given that Father had not filed a counterpetition seeking sole custody of A.T.

¶9        The district court suggested that, if Father was now asking for sole custody, Father should amend his pleadings to include that relief. Father’s attorney agreed and indicated that he would immediately file an amended answer and counterpetition.

¶10 The district court granted the motion to continue but deferred its ruling on sanctions. The court again ordered that “both sides pay one-half the cost” of the written report. The court warned that it might impose sanctions if Mother persisted in her refusal to pay:

I think I can grant as a sanction custody to the father if she doesn’t pay, and that’s kind of why I want her to pay one half, is because if she continues to take this position, I’m not going to pay, then to me, a logical sanction is to say fine, the Court’s going to award custody to the father, but I don’t think I can do that until the pleadings are amended.

¶11 The district court issued an order requiring Mother to immediately pay the evaluator and allowing Father to amend his pleadings. Father filed an amended answer and counterpetition to modify the divorce decree by granting him sole physical and legal custody.

¶12 The following month, the district court held a telephone conference with Father’s attorney and Mother, appearing pro se.[1] Father’s attorney explained that Mother did not pay the evaluator as ordered and had instead offered to pay $50 per month until the debt was satisfied. Based on her failure to comply with the court’s order, Father asked the court to strike Mother’s pleadings and enter a default judgment granting sole custody to Father.

¶13 Mother objected, insisting she was willing but unable to pay. Mother confirmed that she was able to “pay $50, . . . until [she was] able to come up with the whole amount.” The court explained to Mother that “it just doesn’t work that way” because she had already been ordered to pay one-half of the fee immediately.

¶14      Mother again objected, saying, “Your Honor, I don’t have money. I don’t have money. I don’t have money right now. I will pay her immediately. I am trying to come up with the funds.” The court explained that taking a year or two to pay in installments was unacceptable because the case needed to move forward to trial. Mother objected again, saying, “I just got done telling you that I don’t have all the funds right now.” Mother insisted that she had told her former attorney that she would pay the evaluator “when she renders services,” and that her former attorney had misrepresented her position to the court. The court asked again, “So you don’t intend to pay your half of the fee to [the evaluator]?” At that point, Mother suggested that it might be easier for her to communicate in Spanish and offered to respond to the court in writing, but she reiterated, “I’m saying I will pay her as soon as I come up with the full amount. I’m not refusing to pay.” Mother stated that she was trying to “get money from [her] kids, or a loan for [her] house” and would try to come up with the full amount within four to six weeks.

¶15 The court asked Father’s attorney how long the case had been pending, but Mother continued speaking. Father’s counsel stated that “she always interrupts” and “we’ve had problems with her complying with the court orders,” which counsel asserted had resulted in delay. Mother continued to object, but the court stated, “All right, [Father’s attorney], I’ll grant your motion. We’ll just strike her answer and enter a default judgment.”

¶16 Following the telephone conference, the district court signed a written order, prepared by Father, stating that because Mother had “failed to comply with the Court’s prior Orders, her Petition for Modification is hereby stricken and judgment shall be entered pursuant to the [Father’s] Counter Petition to Modify Decree of Divorce.”[2] The court later entered an order modifying the divorce decree to award Father “sole legal and physical custody of the parties’ minor child.” The order also provided that “[Father] is to be awarded his costs and attorney fees against [Mother].”

¶17 Contemporaneously, the court entered “Findings of Fact and Conclusions of Law,” drafted by Father’s attorney, in which the court purported to make factual findings that (1) there was a “substantial and material change[] warranting the modification of the custody” and (2) the change was in the child’s “best interests.” These findings repeated Father’s alleged facts verbatim.

¶18 Mother appealed after the modified divorce decree was entered but before the court’s final order setting the amount of attorney fees.

ISSUES AND STANDARDS OF REVIEW

¶19 While Mother states several issues on appeal, the substance of her arguments relates to three discrete rulings by the district court. First, she challenges the district court’s decision to allow Father to amend his answer and file a counterpetition for sole physical and legal custody. “We review a district court’s decision to grant an amendment of the pleadings for abuse of discretion resulting in prejudice.” Swan Creek Vill. Homeowners v. Warne, 2006 UT 22, ¶ 18, 134 P.3d 1122.

¶20 Second, Mother challenges the district court’s award of sole physical and legal custody to Father as a sanction for her failure to pay her share of the custody evaluator’s fee. Generally, “we overturn a sanction only in cases evidencing a clear abuse of discretion.” Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d 957 (reviewing discovery sanctions). “An abuse of discretion may be demonstrated by showing that the district court relied on an erroneous conclusion of law or that there was no evidentiary basis for the trial court’s ruling.” Id. (quotation simplified).

¶21 Third, Mother challenges the award of attorney fees to Father. “The [district] court’s decision regarding whether to award attorney fees will be overturned only if the [district] court exceeded the bounds of its discretion.” Neff v. Neff, 2011 UT 6, ¶ 48, 247 P.3d 380. “But the related question of whether the [district] court’s findings of fact in support of an award of fees are sufficient is a question of law that we review for correctness.” Id. (quotation simplified).

ANALYSIS

I. Subject Matter Jurisdiction

¶22 Before turning to the issues raised by the parties, we address whether we have jurisdiction over this appeal. In his brief, Father argues that we lack jurisdiction over the attorney fees issue, but he does not challenge our jurisdiction over the appeal generally. Nonetheless, “because subject matter jurisdiction goes to the court’s authority to hear a case, courts have an independent obligation to raise and decide jurisdictional questions that the parties either overlook or elect not to press.”

In re adoption of Baby E.Z., 2011 UT 38, ¶ 36, 266 P.3d 702 (quotation simplified).

¶23 On May 22, 2017, the district court entered a modified divorce decree supported by separately entered findings of fact and conclusions of law. At that time, the court ruled that Father was entitled to an award of his costs and attorney fees. Mother filed her notice of appeal on June 19, 2017, seeking review of the court’s “final order” dated May 22, 2017. When the notice of appeal was filed, the court had not yet entered an order setting the amount of attorney fees. The district court docket reflects that the order awarding attorney fees was entered on September 15, 2017. An amended judgment reflecting the amount of the attorney fees award was not entered until November 24, 2017.[3] Mother never filed an amended notice of appeal.

¶24 Until recently, any “appeal filed before a claim for attorney fees had been resolved was premature and would be dismissed.” Utah R. Civ. P. 58A advisory committee notes on 2016 amendments. But in 2016, rule 4(b) of the Utah Rules of Appellate Procedure was amended “to change the effect of a motion for attorney fees on the appealability of a judgment.” Id. The rule now provides:

A notice of appeal filed after announcement or entry of judgment, but before entry of an order disposing of [a motion or claim for attorney fees under Rule 73 of the Utah Rules of Civil Procedure], shall be treated as filed after entry of the order and on the day thereof, except that such a notice of appeal is effective to appeal only from the underlying judgment.

Utah R. App. P. 4(b)(2). In other words, “[i]f a notice of appeal is filed before the order resolving the timely motion, the appeal is not dismissed; it is treated as filed on the day the order ultimately is entered.” Utah R. Civ. P. 58A advisory committee notes on 2016 amendments.

¶25      In applying the new rule 4(b), Father argues that once the court entered the order setting the amount of attorney fees, Mother’s notice of appeal became effective, but only as to the May 22, 2017 order modifying the divorce decree. But, in a recent opinion, this court held that the new rule applies only if the pending motion for attorney fees is filed post-judgment. See McQuarrie v. McQuarrie, 2017 UT App 209, ¶ 4, 407 P.3d 1096 (per curiam). “[B]ecause rule 4(b)(1)(F) applies only to post-judgment motions for attorney fees and no such motion was filed,” this court held that “traditional case law concerning the finality of judgment for purposes of appeal still applies.” Id. (emphasis added). Under that traditional case law, “a [district] court must determine the amount of attorney fees awardable to a party before the judgment becomes final for the purposes of an appeal” as of right. ProMax Dev. Corp. v. Raile, 2000 UT 4, ¶ 15, 998 P.2d 254. If the notice of appeal is prematurely filed before entry of a final, appealable order, the appellate court lacks jurisdiction to hear the appeal. Id. ¶ 16.

¶26 In concluding that the new rule applies only to post-judgment motions for attorney fees, our opinion in McQuarrie relies on 4(b)(1)(F)’s specific reference to “a motion or claim for attorney fees under rule 73 of the Utah Rules of Civil Procedure.” 2017 UT App 209, ¶ 4 (quotation simplified). Looking to the language of rule 73, we noted that a motion pursuant to the rule must “specify the judgment.” Id. (quotation simplified). Because the application of rule 4(b)(1)(F) is limited to motions under rule 73, which in turn seems to presume that a judgment will exist when such a motion is filed, we concluded that rule 4(b)(1)(F) applied only to post-judgment motions for attorney fees.[4]

¶27      Thus, under McQuarrie, we lack jurisdiction, not just over the attorney fees award as Father contends, but over the entire appeal. In McQuarrie, we held that we lacked jurisdiction where the husband filed his notice of appeal from an order dismissing his motion to modify a divorce decree and awarding attorney fees in an amount to be determined at a later date. Similarly, here, Mother filed her notice of appeal from entry of the modified divorce decree, which, among other things, awarded Father attorney fees in an amount to be determined. Because the modified divorce decree, like the order in McQuarrie, contemplated additional action by the court, it was not final for purposes of appeal. And because the unresolved attorney fees issue did not result from a post-judgment motion under rule 73, McQuarrie holds that rule 4(b)(1)(F) does not apply. Consequently, we lack appellate jurisdiction to hear this case as an appeal as of right.

¶28      Ordinarily, this conclusion would necessitate dismissal of the appeal. See Loffredo v. Holt, 2001 UT 97, ¶ 11, 37 P.3d 1070 (“Where the final judgment rule is not satisfied, the proper remedy for this court is dismissal.”). “‘In extraordinary cases,’” however, “‘we may choose to treat a purported [appellate rule 3 appeal of right as an interlocutory appeal under [appellate rule 5].’” A.J. Mackay Co. v. Oakland Constr. Co., 817 P.2d 323, 325 (Utah 1991) (quoting Williams v. State, 716 P.2d 806, 808 (Utah 1986)). We recognize that “the course suggested in Williams is to be taken very sparingly.” Id. Such exceptional treatment cannot be justified merely because the jurisdictional defect escaped earlier detection and the appeal has progressed to a stage where dismissal would constitute a significant waste of party and judicial resources. If those circumstances were sufficient, it might “encourage counsel to attempt to appeal from unappealable orders and to conceal the nature of the orders from the court.” Id. We are also mindful that “every case that we permit to improperly occupy a space” on our docket reduces the amount of resources we can devote to appeals properly taken as of right. Id. Finally, we understand that “we bear a heavy burden of justification when we single out one improperly taken appeal for preferential treatment that has been denied so many others.” Id. “[F]or such circumstances to exist, a minimum threshold requirement would be that the order appealed from be one we would have initially deemed worthy of appeal under rule 5.” Id. at 326. Additionally, “we should also consider how we have treated other unappealable orders that have evaded early detection by this court” and be able to “explain persuasively why any one case deserves treatment denied to others.” Id. at 325–26.

¶29 We believe that this is such an extraordinary case. The primary issue on appeal is whether the district court abused its discretion when it modified custody as a sanction against Mother without considering the best interests of the child. As explained in Part IV, this court has previously held that a district court cannot impose such a sanction. Any change in custody must be accompanied by adequately supported findings that the change is in the best interests of the child. See infra ¶ 38. Given that the sanctions imposed by the district court over Mother’s objection were in contravention of controlling authority, we would have initially deemed this issue worthy of an interlocutory appeal under rule 5. This is especially true where, at the time Mother filed her notice of appeal, Father had yet to submit an affidavit of attorney fees and costs and a final judgment on the matter was still some months off. Considering the time-sensitive nature of a child’s custody and the uncertainty regarding when the attorney fees issue would be resolved, this case would have been suitable for interlocutory review to correct the patent error below.

¶30 The nature of this case also justifies special treatment. Unlike the order dismissing petitions to modify a divorce decree in McQuarrie, this case involves a custody order affecting a minor child. As we explain in Part IV, the child’s best interests are of paramount importance in making custody determinations. See infra ¶ 39. A modification in custody to punish a recalcitrant parent-litigant without considering the best interests of the child would work a manifest injustice.

¶31 If the only interest at stake in this appeal was that of Mother, we would not be inclined to rescue her from her own oversight, even in light of her pro se status at the time this appeal was filed and the potential confusion caused by the 2016 amendments to the court rules. However, this appeal involves the best interests of a minor child, and those interests have not been properly considered despite well-established law requiring such findings as a prerequisite to a change in custody. Because we conclude that this is an extraordinary case, we choose to treat it as an interlocutory appeal under rule 5 for which we have jurisdiction.

II. Inadequate Briefing

¶32 Father argues that Mother has inadequately briefed each issue on appeal. Although Mother filed her opening brief pro se, parties who represent themselves are “held to the same standard of knowledge and practice as any qualified member of the bar.” Allen v. Friel, 2008 UT 56, ¶ 11, 194 P.3d 903 (quotation simplified). We require a party to “explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.” Utah R. App. P. 24(a)(8).

¶33 While Mother’s brief is not in strict compliance with rule 24, appellate courts are “generally lenient with pro se litigants,” extending “every consideration that may reasonably be indulged.” Bell v. Bell, 2013 UT App 248, ¶¶ 24, 27, 312 P.3d 951 (quotation simplified). This court may, in the interests of justice, overlook inadequacies in the briefing and reach the merits. See State v. Gamblin, 2000 UT 44, ¶ 8, 1 P.3d 1108 (holding that an appellate court may “choose to further address defendant’s arguments in the interests of justice”); Golden Meadows Props., LC v. Strand, 2011 UT App 76, ¶ 1 n.1, 249 P.3d 596 (“Despite these inadequacies, we exercise our discretion to decide this matter on the merits.”).

¶34 Moreover, the Utah Supreme Court has recently clarified that inadequate briefing is not “an absolute bar to review of an argument on appeal.” Bank of Am. v. Adamson, 2017 UT 2, ¶ 11, 391 P.3d 196. “An appellant who fails to adequately brief an issue will almost certainly fail to carry its burden of persuasion on appeal,” but the court’s analysis focuses on whether the appellant has established error, “not on whether there is a technical deficiency in briefing meriting a default.” Id. ¶ 12 (quotation simplified). With that standard in mind, we turn to the merits of each issue on appeal.

III. Allowing Amendment of Pleadings

¶35 Mother has failed to carry her burden of persuasion in arguing that the district court abused its discretion in permitting Father to amend his pleadings. Under rule 15 of the Utah Rules of Civil Procedure, district courts “should freely give permission [for a party to amend its pleadings] when justice requires.” Utah R. Civ. P. 15(a)(2). “[District] courts should liberally allow amendments unless the amendments include untimely, unjustified, and prejudicial factors.” Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 58, 221 P.3d 256.

¶36      In her issue statements, Mother faults the district court for granting Father leave to amend “at such a late stage of the case” and “in a way that prejudiced and undermined the reasonable assessments, strategies, and preparations for the case by the attorney for the Mother.” Aside from these conclusory assertions in the issue statements, however, Mother’s brief does not further address this argument. She does not explain how the amended answer and counterpetition were untimely, unjustified, or prejudicial in light of the continuance of trial, nor does she address any other factors that might weigh against allowing the amendment. With respect to this issue, Mother has failed to carry her burden of persuasion on appeal.

IV. Awarding Custody as a Sanction

¶37      Mother contends the district court abused its discretion by “changing custody of the [child] to the Father, apparently based entirely on the fact that the Mother had not complied with the order to pay some remaining portion of her share of the custody evaluation” and “without taking evidence on the best interests of the child.” Mother cites Hogge v. Hogge, 649 P.2d 51 (Utah 1982), which requires a two-step process to modify a custody award.

Id. at 53. Although Mother does not provide an in-depth legal analysis, her argument is “sufficient to show an error and why, under applicable authorities, that error must be redressed.” Blocker v. Blocker, 2017 UT App 10, ¶ 10, 391 P.3d 1051; see also State v. Lucero, 2002 UT App 135, ¶ 13, 47 P.3d 107 (“To permit meaningful appellate review, briefs must comply with the briefing requirements sufficiently to enable us to understand what particular errors were allegedly made, where in the record those errors can be found, and why, under applicable authorities, those errors are material ones necessitating reversal or other relief.” (quotation simplified)).

¶38 Utah law requires courts to make the following two findings of fact before modifying a child custody order: (1) there has been a material change in the circumstances upon which the earlier order was based, and (2) a change in custody is in the best interests of the child. See Utah Code Ann. § 30-3-10.4(2) (LexisNexis Supp. 2017). This two-step approach was first established by the Utah Supreme Court in Hogge and later codified. 629 P.2d at 54.

¶39 Strong public policy reasons support the adoption of the Hogge test. Stable custody arrangements are critical to a child’s proper development. The presumption is that “custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed.” Becker v. Becker, 694 P.2d 608, 610 (Utah 1984). The two-step procedure “allows courts to monitor the best interests of children and especially to provide stability to children by protecting them from ‘ping-pong’ custody awards.” Wright v. Wright, 941 P.2d 646, 651 (Utah Ct. App. 1997).

¶40      “The important public policy to have courts ensure that a child’s best interests will be met before transferring custody of the child applies in all cases involving a change in a child’s custody.” Taylor v. Elison, 2011 UT App 272, ¶ 22, 263 P.3d 448 (quotation simplified). A district court cannot avoid making these findings by modifying custody arrangements as a sanction. See Wright, 941 P.2d at 652; see also Blanco v. Blanco, 311 P.3d 1170, 1175 (Nev. 2013) (“[A] court may not use a change of custody as a sword to punish parental misconduct, such as refusal to obey lawful court orders, because the child’s best interest is paramount in such custody decisions.”); Fenton v. Webb, 705 N.W.2d 323, 327 (Iowa Ct. App. 2005) (holding that the district court abused its discretion in determining custody by entering a default judgment without “evidence to support the custody change”).

¶41      In Wright, this court reversed a judgment by default that transferred custody of the parties’ child without making the required findings. 941 P.2d at 652. The district court found that the mother was at fault for failing to respond to the father’s discovery requests and that sanctions were justified under rule 37 of the Utah Rules of Civil Procedure. Id. at 647. The court struck the mother’s answer and counterpetition for custody, entered the mother’s default on the father’s petition for custody, and entered a judgment transferring custody of the child from mother to father. Id. at 647.

¶42 On appeal, this court held that the court acted within its discretion in ordering rule 37 discovery sanctions against the mother and “striking the [m]other’s answers and counter-petition and entering default,” id. at 650, but “abused its discretion by modifying the child custody order because it failed to first take evidence and make the necessary findings,” id. at 652. This court held that the important public policy considerations underlying the Hogge test “apply just as much to cases involving judgments by default as to cases involving a litigated dispute decided upon the merits.” Id. at 651–52. Accordingly, “before a [district] court may enter a judgment by default that transfers custody of a child, the trial court must take evidence and then make findings that a substantial change of circumstances has occurred and that transferring custody of the child is in the child’s best interests.” Id.

¶43 In this case, the court entered judgment by default and modified custody based solely on Mother’s failure to pay her share of the custody evaluator’s fee. Although the written findings of fact and conclusions of law, drafted by Father’s attorney, purported to reflect factual findings regarding a substantial change of circumstances and the best interests of the child, the court did not hear any evidence on which those findings could be based. Father contends the district court considered the custody evaluator’s recommendation, but the evaluator had not submitted a report or testified before the district court. The parties’ agree that the evaluation was “not favorable” to Mother, but this fact did not provide a sufficient basis on which to assess the child’s best interests. By modifying the custody arrangement without taking evidence and making its own assessment regarding the circumstances and best interests of the child, the court exceeded its discretion.

¶44      The remaining question is whether the court acted within its discretion in striking Mother’s petition. Our review of this issue is impeded by the district court’s failure to specify the authority it was invoking to impose sanctions. Without knowing the applicable context, we cannot determine what findings, if any, the court was required to make to support the imposition of sanctions. For instance, “before a district court may impose discovery sanctions under rule 37, the court must find on the part of the noncomplying party willfulness, bad faith, or fault.” Clifford P.D. Redekop Family LLC v. Utah County Real Estate LLC, 2016 UT App 121, ¶ 14, 378 P.3d 109 (quotation simplified). Similarly, while a court has inherent authority to impose contempt sanctions, “a finding of contempt is proper only when the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” LD III LLC v. Davis, 2016 UT App 206, ¶ 13, 385 P.3d 689 (quotation simplified).

¶45      Here, a finding, based on evidence, that Mother was able to pay the evaluator but nonetheless refused to comply with the court’s order may well have supported the imposition of sanctions, but the district court made no such finding. Consequently, we vacate the imposition of sanctions in its entirety but without prejudice to the district court’s prerogative to impose appropriate sanctions on a sound, articulated basis, short of modifying custody without conducting the Hogge test.

V. Attorney Fees

¶46      Finally, Mother argues that the court failed to consider the required factors when awarding Father his attorney fees. Father argues that this court lacks jurisdiction to consider this issue because Mother filed her notice of appeal before entry of the order setting the amount of attorney fees. Mother does not contest the reasonableness of the amount of the award but only the initial ruling that Father was entitled to attorney fees. Because we have elected to treat this as an interlocutory appeal from the modified divorce decree, we have jurisdiction to review the rulings made in that order, including the conclusion that Father was “to be awarded his costs and attorney fees.”

¶47      Generally, “attorney fees are awardable only if authorized by statute or by contract.” Dahl v. Dahl, 2015 UT 79, ¶ 168 (quotation simplified). In divorce cases, Utah Code section 30-3-3(1) permits a court to award attorney fees and costs “to enable the [receiving] party to prosecute or defend the action.” Utah Code Ann. § 30-3-3(1) (LexisNexis 2013). To justify such an award, the court must make specific findings regarding “the receiving spouse’s financial need, the payor spouse’s ability to pay, and the reasonableness of the requested fees.” Dahl, 2015 UT 79, ¶ 168 (quotation simplified); see also Utah R. Civ. P. 102(b) (listing findings required to grant costs and fees under Utah Code section 30-3-3(1)). “Failure to consider these factors is grounds for reversal on the fee issue.” Taft v. Taft, 2016 UT App 135, ¶ 87, 379 P.3d 890 (quotation simplified).

¶48      On the other hand, where attorney fees are awarded as a sanction, “section 30-3-3 and its requirements are not implicated.” Liston v. Liston, 2011 UT App 433, ¶ 26, 269 P.3d 169. A district court may “award attorney fees or other costs in a situation where one party has been uncooperative and failed to comply with discovery requests and court orders.” Goggin v. Goggin, 2013 UT 16, ¶ 32, 299 P.3d 1079. Such awards are designed to compensate the receiving party for the expense incurred as a result of the sanctioned party’s misconduct. Id. ¶ 36. A district court’s “authority to impose an award of fees as a sanction against a party who has been obstructive or contemptuous is derived from several statutes and common law doctrines,” including the contempt statute, court rules, and the court’s equitable and inherent powers. Id. The source of authority determines what factual findings, if any, the court is required to make before imposing sanctions.

¶49 Here, the court did not identify the legal basis for the award of attorney fees. If the court intended to award fees under section 30-3-3(1), it did not make the required findings regarding Father’s financial need or Mother’s ability to pay. If the court intended to award attorney fees as a sanction, it did not identify the authority on which the sanctions were based or the conduct that would merit such sanctions. Given the lack of findings to support an attorney fee award on either ground, we vacate the award without prejudice to the district court entertaining renewed motions for attorney fees on remand.

CONCLUSION

¶50 We reverse the imposition of sanctions and vacate the order modifying the decree of divorce. We remand for further proceedings consistent with this opinion.

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

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[1] Mother claimed that she had fired her former attorney because he misrepresented to the court that she was willfully refusing to pay. Mother explained:

It’s the other attorney communicating [to] you otherwise, that I was not going to pay, and it’s not my fault that I got incompetent counsel communicating [to] you other than what I communicated [to] him. That’s why I’m here, Your Honor, communicating to you what my intent is. I’m not refusing to pay [the evaluator]. I will pay [the evaluator]. I am trying to get the money . . . [s]o I can pay [the evaluator] all the amount.

[2] The sanction sought by Father was to strike Mother’s pleadings. Although the court had verbally ordered Mother’s answer stricken, Mother had not answered Father’s counterpetition, and thus there was no answer to strike. Instead, the court struck Mother’s petition to modify.

[3] Neither the order setting the award of attorney fees or the amended judgment is part of the record on appeal.

[4] McQuarrie’s holding that ProMax still applies to pre-judgment motions for attorney fees appears to be in tension with the advisory committee’s notes on the 2016 amendments. The committee notes state that the amendments were part of a coordinated effort to “effectively overturn ProMax” to “protect the appellate rights of parties and avoid the cost of premature appeals.” Utah R. Civ. P. 58A advisory committee notes on 2016 amendments. However, advisory committee notes “are not law” and “cannot override the terms of the rules themselves.” In re Larsen, 2016 UT 26, ¶ 31, 379 P.3d 1209 (addressing advisory committee notes to the Utah Rules of Professional Conduct); see also RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 22, 392 P.3d 956 (noting that the advisory committee notes to the Utah Rules of Civil Procedure “offer persuasive, but not binding, interpretative guidance for the rule”). If rule 4(b)(1)(F) was intended to apply whenever the only issue left to be decided is the calculation of attorney fees, limiting the rule’s application to a “motion or claim for attorney fees under rule 73 of the Utah Rules of Civil Procedure” was overly restrictive. See McQuarrie v. McQuarrie, 2017 UT App 209, ¶ 4, 407 P.3d 1096 (per curiam).

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2019 UT App 82 – Blocker v. Blocker – terminating supervised parent-time

2019 UT App 82 – Blocker v. Blocker

THE UTAH COURT OF APPEALS
KIRSTEEN DIDI BLOCKER, Appellee,

MICHAEL PHILLIP BLOCKER, Appellant.

Opinion
No. 20170167-CA
Filed May 16, 2019

Fourth District Court, Provo Department
The Honorable James R. Taylor

No. 024402553

Michael Phillip Blocker, Appellant Pro Se
Grant W. P. Morrison, Matthew G. Morrison, and
Justin T. Morrison, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY
concurred.

MORTENSEN, Judge:

¶1        We previously considered this case in Blocker v. Blocker (Blocker I), 2017 UT App 10, 391 P.3d 1051, and remanded it to the district court to enter findings of fact to support its ruling granting Kirsteen Didi Blocker (Mother) unsupervised parent-time with her now sixteen-and-a-half year old son (Child). Michael Phillip Blocker (Father) appeals the district court’s post-remand judgment. We affirm.

BACKGROUND[1]

¶2        Mother and Father were married in 1997, separated just weeks after Child’s birth in 2002, and divorced in 2004. Mother and Father were awarded joint custody, with Child’s primary physical care and residence being with Mother. In response to Father’s petition to modify custody and concerned about the detrimental impact of Mother’s behavior on Child, the district court granted sole legal and physical custody to Father in 2010 (2010 Order). The district court ordered that Mother’s parent-time be supervised until she “changed her mind set with regard to her own parenting abilities and Father’s relationship with the child.” Blocker I, 2017 UT App 10, ¶ 4, 391 P.3d 1051 (cleaned up). But concerned that supervised parent-time would be impractical for financial reasons, the court permitted Mother to have unsupervised parent-time provided that she retain a special master and participate in individual therapy by herself and joint therapy with Child. Id. Until she verified compliance with these conditions, Mother’s parent-time remained supervised. Id.

¶3        In 2014, in response to Mother’s motion to modify the 2010 Order and based on a home study report, the district court temporarily granted Mother unsupervised parent-time. Id. ¶¶ 5–6. Nearly one year later, having received no other evidence or testimony, the court decided to make Mother’s unsupervised parent-time permanent without entering any findings of fact. Id. ¶ 7.

¶4        Father appealed, and we determined that the court had made its order granting unsupervised parent-time to Mother “permanent without explaining the basis for its decision.” Id. ¶ 16. Because the court modified the parent-time requirements without providing any findings, we concluded that we were unable to review its decision and remanded for more detailed findings. Id. ¶ 21.

¶5        Regarding the changed circumstances, on remand the district court made the following findings of fact: (1) Mother had continued professional therapy; (2) Mother and Mother’s father were maintaining a relationship with Child by going to Father’s house and being allowed to spend time with Child in their car, at the curbside, for about one hour, two to three times a week; (3) Father’s brother (Uncle) supervised visits between Mother and Child during the Thanksgiving and Christmas holidays without problems being noted; (4) Child was allowed to sit and visit with Mother and her family during a church Christmas program without incident; (5) Mother was allowed to speak by phone with Child two to three times per week; (6) Child was older when the district court modified parent-time; and (7) Child had received substantial therapy at the time the district court modified parent-time. The court also identified three circumstances that rendered the 2010 Order unenforceable: (1) the parties were unable to afford the cost of supervised exchanges, supervised visitation, or the services of a special master; (2) the therapist identified in the 2010 Order to oversee therapy of Mother and Child was no longer available; and (3) the agency assigned to supervise Mother’s parent-time in the 2010 Order was no longer in business in Mother’s geographical area.

¶6        Regarding Child’s best interest, the district court on remand noted that both parties “wished to reasonably accommodate a relationship between [Child] and [Mother].” The court explained that “curbside parent time . . . was not in the best interest of [Child]. He needed a more reasonable and less artificial opportunity to know his [Mother] and her family.”

¶7        The district court further described the process by which it granted Mother unsupervised parent-time. Because parent-time supervised by Uncle had been “successful and without incident,” the court concluded that Mother should be allowed to exercise unsupervised parent-time on a temporary basis. At the time the district court modified parent-time, Mother had been exercising unsupervised parent-time for nearly one year without any reported incidents. Although Father speculated that Mother was engaging in “parental alienation” during her parent-time, the court noted that Father offered no evidence to support this contention. The court concluded by pointing out, “[Child] was 6 years older and in spite of the curbside restrictions and other difficulties over the years, he and [Mother] had developed and continued to maintain a positive parent/child relationship.” And with regard to Mother, the court noted that she had “demonstrated an ability through the evaluation and her practice over several months to maintain a reasonable relationship with [Child].”[2] Thus, the court concluded that it was appropriate to “reconcile the now unenforceable 2010 Order and the current state of affairs” by allowing unsupervised parent-time as the means to “most effectively foster a continuing relationship” between Child and Mother. Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 The first issue on appeal is whether the district court erred when it determined that the unenforceability of the conditions for Mother to have unsupervised parent-time with Child constituted a material change in circumstances to support a modification of the parent-time arrangements in the 2010 Order. The second issue is whether the district court erred by not conducting a best interest analysis when it modified the parent-time conditions of the 2010 Order. Both issues share the same standard of review. “We review a district court’s decisions regarding parent-time for an abuse of discretion.” Jones v. Jones, 2016 UT App 94, ¶ 8, 374 P.3d 45. “The district court’s proximity to the evidence places it in a better position than an appellate court to choose the best custody arrangement. Thus, we generally will not disturb the district court’s parent-time determination absent a showing that the district court has abused its discretion.” Stephens v. Stephens, 2018 UT App 196, ¶ 34, 437 P.3d 445 (cleaned up).

ANALYSIS

I. The Preclusion of Previously Disposed Arguments

¶9        With regard to the first issue, we note that the scope of our review of the district court’s post-remand ruling is limited by the mandate rule. “The mandate rule, a subset of the law of the case doctrine, binds both the district court and the parties to honor the mandate of the appellate court. Under this rule, the decisions of an appellate court become the law of the case and cannot be reconsidered on remand.” State v. Oliver, 2018 UT App 101, ¶ 29 n.8, 427 P.3d 495 (cleaned up); see also Thurston v. Box Elder County, 892 P.2d 1034, 1037 (Utah 1995) (“[T]he mandate rule[] dictates that pronouncements of an appellate court on legal issues in a case become the law of the case and must be followed in subsequent proceedings of that case.”). Furthermore, when this court disposes of an argument as inadequately briefed, “the law of the case doctrine precludes us from addressing this argument anew.” See NPEC LLC v. Miller, 2018 UT App 85, ¶ 9, 427 P.3d 357 (per curiam) (cleaned up).

¶10 Under the mandate rule, Father cannot re-litigate on remand issues we previously determined were inadequately briefed. But this is exactly what he does now. In this post-remand appeal, Father reintroduces a previously disposed issue by presenting two arguments in support of it.

¶11 First, he argues, “The district court abused its discretion when it used Mother’s inability to comply with the conditions [for unsupervised parent-time] in the initial Parent Time Order as a change in circumstances to justify modification of [Mother’s] parent time because those circumstances were not those upon which the earlier decision was based.” Next, Father argues, “[T]he district court abused its discretion in finding that [Mother’s] unwillingness to comply with a standing court order provided the basis for a change in circumstances sufficient to modify parent time as such rewards a noncompliant parent and incentivizes her to continue her noncompliant behavior.”

¶12 Similarly, in his previous appeal, Father argued, “The [district] court erred when it decided that [Mother’s] inability to comply with conditions for her unsupervised parent time constituted a material change in circumstances upon which to base a modification of a custody award.”[3] A panel of this court declined to address this issue because it was inadequately briefed. Blocker I, 2017 UT App 10, ¶ 18, 391 P.3d 1051.

¶13 Thus, in this post-remand appeal, Father raises essentially the same issue—namely, that the district court erred in concluding the unenforceability of the original parent-time conditions constituted a material change in circumstances—that he raised in his original appeal. But we have already declined to address this very issue in Father’s original appeal due to inadequate briefing. “In effect, [Father] now attempts to supplement the briefing submitted in his earlier appeal. The mandate rule bars such attempts.” See State v. MacNeill, 2016 UT App 177, ¶ 39, 380 P.3d 60. Therefore, we decline to reconsider this issue in Father’s post-remand appeal.

II. The Post-remand Judgment

¶14 The scope of the remand directed the district court to enter findings of fact showing that there had been a material change in circumstances necessary to support a change in the parent-time provisions. See Blocker I, 2017 UT App 10, ¶ 21, 391 P.3d 1051.

¶15 Modification of parent-time involves two separate steps. “First, the court must find that the petitioner has made some showing of change in circumstances that would support a modification of parent-time.” Stephens v. Stephens, 2018 UT App 196, ¶ 33, 437 P.3d 445 (cleaned up). “Second, the court must consider the changes in circumstance along with all other evidence relevant to the welfare or best interests of the child to determine de novo which custody arrangement will serve the welfare or best interest of the child, and modify, or refuse to modify, the decree accordingly.” Id. (cleaned up); see also Becker v. Becker, 694 P.2d 608, 611 (Utah 1984) (“[A] modification of visitation rights also requires a bifurcated procedure.”); Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982) (“A . . . two-step procedure should be followed where the petition to modify a custody decree requests a material change in visitation rights.”).

¶16 In the context of modifying parent-time, a material change of circumstances is a “different inquiry” from a material change regarding custody. Erickson v. Erickson, 2018 UT App 184, ¶ 16, 437 P.3d 370 (cleaned up). “When modifying parent-time, the petitioner is required to make only some showing of a change in circumstances, which does not rise to the same level as the substantial and material showing required when a district court alters custody.” Id. (cleaned up). Furthermore, in determining parent-time, “the [district] court gives highest priority to the welfare of the children over the desires of either parent. Such determinations are within the [district] court’s sound discretion.” Childs v. Childs, 967 P.2d 942, 946 n.2 (Utah Ct. App. 1998) (cleaned up).

¶17 Finally, “[t]he [district] court’s findings on remand must be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on [each] factual issue was reached.” Jensen v. Jensen, 2000 UT App 213U, para. 8 (cleaned up); accord Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221; Shuman v. Shuman, 2017 UT App 192, ¶ 5, 406 P.3d 258. “Put another way, findings are adequate when they contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.” Lay, 2018 UT App 137, ¶ 19 (cleaned up). “This obligation facilitates meaningful appellate review and ensures the parties are informed of the [district] court’s reasoning.” Shuman, 2017 UT App 192, ¶ 5. Furthermore, the Utah Code requires the court to “enter the reasons underlying its order for parent-time.” Utah Code Ann. § 30-3-34(3) (LexisNexis Supp. 2018).[4]

¶18 Thus, on remand, the district court in this case had two tasks. First, it was to enter findings of fact to support its ruling modifying parent-time. Second, based on those findings, the district court needed to explain the process by which it concluded that eliminating supervised parent-time was in the best interest of Child. The district court completed both tasks in its post-remand decision.

¶19 First, the district court identified changed circumstances that supported its decision to modify parent-time. See supra ¶ 5. Most notable among these is that Mother and Child had received substantial therapy at the time of the modification, there had been no problems reported during Mother’s supervised parent-time, and Child was older and had grown in maturity. The 2010 Order stated that supervised parent-time was to continue “until such time that [Mother] demonstrates that she has changed her mind set with regard to her own parenting abilities and [Father’s] relationship with [Child].” Mother’s reception of therapy and the absence of reported problems are changed circumstances relative to the condition (that is, Mother’s uncooperative mind-set) that originally gave rise to the imposition of supervised parent-time. The court also noted that modification was necessary because the conditions (namely, the prohibitive costs associated with supervised parent-time, the unavailability of a joint therapist, and the demise of the original supervising agency) originally imposed for Mother’s unsupervised exercise of parent-time had so substantially changed as to make the 2010 Order unenforceable. By highlighting these changed circumstances, the district court made “some showing of a change in circumstances” necessary to modify parent-time. See Erickson, 2018 UT App 184, ¶ 16 (cleaned up).

¶20      Second, the district court explained the process by which it concluded a modification in parent-time was needed to serve Child’s best interest. Given the unenforceability of the 2010 Order, the court noted that Uncle had been supervising Mother’s parent-time for a few months as of April 2014. Mother had exercised this parent-time without incident. The court also noted that, given the parties’ desire “to reasonably accommodate a relationship” between Child and Mother, “curbside parent time . . . was not in the best interest of [Child]” because “[Child] needed a more reasonable and less artificial opportunity to know his [Mother] and her family.” Thus, the court allowed Uncle to continue to supervise Mother’s parent-time on a temporary basis. And at the same time, the court ordered a home study. The case was set for further review after completion of the home study and continuation of parent-time supervised by Uncle. Four months later, after receiving the home study and hearing that supervised parent-time had been “successful and without incident,” the district court granted Mother unsupervised parent-time on a temporary basis. About a year later, the court determined that Mother had exercised unsupervised, statutory parent-time without incident, and it permanently granted her unsupervised parent-time. The court explained that granting Mother unsupervised parent-time was in Child’s best interest because “it would most effectively foster a continuing relationship” between Child and Mother.

¶21 “[District] courts have particularly broad discretion in ordering parent-time, and we will only intervene when the [district] court’s action is so flagrantly unjust as to constitute an abuse of discretion.” Jones v. Jones, 2016 UT App 94, ¶ 13, 374 P.3d 45 (cleaned up). “The best interests of a minor child are promoted by having the child respect and love both parents, which includes fostering a child’s relationship with the noncustodial parent.” Hanson v. Hanson, 2009 UT App 365, ¶ 3, 223 P.3d 456 (cleaned up); see also Jones, 2016 UT App 94, ¶ 14 (“The paramount concern in [parent-time] matters is the child’s welfare or best interest. Fostering a child’s relationship with the noncustodial parent has an important bearing on the child’s best interest.” (cleaned up)). Thus, the district court acted well within its broad discretion when it found that modifying Mother’s parent-time from supervised to unsupervised status was in Child’s best interest as the most effective means to “foster a continuing relationship” between Mother and Child.

CONCLUSION

¶22 We conclude that, upon remand, the district court properly entered findings of fact that were sufficiently detailed to identify the steps it took to modify Mother’s parent-time. We further conclude that the district court did not abuse its discretion in reaching the conclusion that unsupervised parent-time was in Child’s best interest.

¶23 Affirmed.

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

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[1] The facts of this case are set out in further detail in the original appeal. See Blocker I, 2017 UT App 10, ¶¶ 2–7, 391 P.3d 1051.

[2] The district court had ordered and received a home study to determine if Mother was competent to have unsupervised parent-time with Child.

[3] The order of the district court giving rise to the original appeal was entitled “Order Modifying Custody.” In fact, that order modified only parent-time and did not disturb the underlying custody arrangement. Father repeated this error when, in the original appeal, he imprecisely referred to a “modification of custody” when he was actually arguing that the court erred in modifying parent-time.

[4] Because the statutory provision in effect at the relevant time does not differ in any material way from that now in effect, we cite the current version of the Utah Code.

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