Vaughan v. Romander , 360 P.3d 761 ( 2015 )

2015 UT App 244THE UTAH COURT OF APPEALS
DAVID VAUGHAN,
Appellee,
v.
EMILY ROMANDER,
Appellant.
Opinion
No. 20131091-CA
Filed September 17, 2015
Second District Court, Farmington Department
The Honorable Michael G. Allphin
No. 114701785
John M. Webster and Kenji J. Kawa, Attorneys
for Appellant
Cassie J. Medura and Jarrod H. Jennings, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and JAMES Z. DAVIS concurred.
JUDGE GREGORY K. ORME authored a separate opinion in which
JUDGE JAMES Z. DAVIS concurred and from which JUDGE MICHELE
M. CHRISTIANSEN dissented, with opinion. 1
CHRISTIANSEN, Judge:
¶1 This case involves a child-custody dispute between David
Vaughan (Father) and Emily Romander (Mother). Father filed a
1. Parts I, II, IV, and V of the lead opinion represent the majority
opinion. Part III of the lead opinion, addressing the parent-time
schedule, reflects the dissenting opinion of Judge Christiansen.
See infra ¶¶ 19–23. Judge Orme’s separate opinion represents the
majority decision on that issue. See infra ¶¶ 29–31.
Vaughan v. Romander
petition seeking custody of the child, child support, and other
related relief. The case proceeded to trial, and the trial court
awarded primary physical custody to Father and entered other
orders relating to child support and Mother’s parent-time.
Mother challenges both the trial court’s refusal to grant her
request for a continuance on the first day of trial and various
components of the trial court’s ruling. We affirm.
BACKGROUND
¶2 Father and Mother are the biological parents of a minor
child. Father filed a petition seeking an adjudication of child
custody, parent-time, and child support for the child. The trial
court entered temporary orders awarding Mother primary
physical custody of the child. As part of the proceedings, a child-
custody evaluator (the Evaluator) conducted a custody
evaluation from July 2012 to January 2013. At a settlement
conference in February 2013, the Evaluator indicated that her
recommendation would be for Mother to retain primary physical
custody of the child. The parties were unable to reach a
settlement, and the matter was set for trial.
¶3 In July 2013, the parties agreed that the Evaluator should
update the custody evaluation. The parties stipulated that the
Evaluator would complete and submit her final custody
evaluation at least fourteen days before trial. The Evaluator
submitted her final custody evaluation on September 5, 2013—
exactly fourteen days before trial. This time, the Evaluator
recommended that Father be awarded primary physical custody
of the child. She recommended that Mother’s parent-time consist
of alternating weekends from Friday to Monday and a weekday
overnight stay alternating between Monday and Thursday to
minimize gaps in Mother’s parent-time given the young age of
the child.
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¶4 Before trial, Mother moved to continue the trial, arguing
that the timing of the Evaluator’s final custody evaluation left
her little or no time to respond. The trial court denied Mother’s
motion on the morning of trial.
¶5 After the trial, the court entered an order awarding
primary physical custody to Father and establishing a parent-
time schedule. The court awarded Mother parent-time on
alternating weekends from Friday to Sunday and a weekday
overnight stay every Tuesday. The trial court also ordered that
the parties could each exercise a right of first refusal to provide
parental child care rather than surrogate care for overnight
periods and periods exceeding twenty-four hours. Mother
appeals.
ISSUES AND STANDARDS OF REVIEW
¶6 Mother first argues that the trial court abused its
discretion in denying her motion to continue the trial. We review
a trial court’s decision on a motion to continue for an abuse of
discretion. Clarke v. Clarke, 2012 UT App 328, ¶ 19, 292 P.3d 76.
¶7 Mother next argues that the trial court erred in awarding
primary physical custody to Father. “We review an award of
physical custody for abuse of discretion.” Cagatay v. Erturk, 2013
UT App 82, ¶ 2, 302 P.3d 137. We review the trial court’s
underlying factual findings for clear error. Id.
¶8 Mother also challenges the parent-time schedule
established by the trial court. “The district court has the
discretion to establish parent-time in the best interests of the
children.” Tobler v. Tobler, 2014 UT App 239, ¶ 24, 337 P.3d 296.
Accordingly, we review the trial court’s parent-time order for an
abuse of that discretion. See id. ¶¶ 12, 24.
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¶9 Last, Mother challenges the trial court’s decision to limit
the right of first refusal to provide child care in situations when
the custodial parent requires surrogate care overnight. The trial
court is given broad discretion in making child-custody awards,
and we will not disturb the trial court’s decision unless it is “so
flagrantly unjust as to constitute an abuse of [that] discretion.”
Marchand v. Marchand, 2006 UT App 429, ¶ 4, 147 P.3d 538(alteration in original) (citation and internal quotation marks
omitted).
ANALYSIS
I. Motion to Continue
¶10 Mother first argues that the trial court abused its
discretion in denying her motion to continue the trial. A trial
court has substantial discretion in deciding whether to grant a
continuance. Clarke v. Clarke, 2012 UT App 328, ¶ 19, 292 P.3d 76.
We will conclude that a trial court has abused that discretion
only if the decision to grant or deny a continuance is “clearly
unreasonable and arbitrary.” Id. (citation and internal quotation
marks omitted).
¶11 At a telephone conference in June 2013, the parties agreed
to continue the trial to further pursue settlement and to obtain an
updated custody evaluation. The trial was then scheduled for
September 19, 2013. In July 2013, the parties stipulated to an
updated custody evaluation “to be completed and . . . submitted
to the Court and the parties at least fourteen (14) days before
trial.” The Evaluator submitted the evaluation to the parties on
September 5, 2013, exactly fourteen days before trial. Mother
moved to continue the trial, arguing that she needed more time
to respond to the Evaluator’s final recommendation. The trial
court denied Mother’s motion to continue, ruling that “[t]he
parties have had adequate opportunity to prepare for the trial,”
“the parties by way of stipulation agreed to allow the updated
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custody evaluation,” and the Evaluator “timely delivered the
updated evaluation according to the parties’ agreement.”
¶12 Under these circumstances, we cannot conclude that the
trial court abused its discretion in denying Mother’s motion to
continue. Mother stipulated to receipt of the final custody
evaluation only fourteen days before trial. Nothing in the
stipulation conditioned Mother’s agreement on the Evaluator’s
recommendation remaining unchanged in her final custody
evaluation. Moreover, the parties’ stipulation was filed just over
a week after Father had requested an updated custody
evaluation on the basis of Father’s concerns over Mother’s
“housing and employment stability,” physical care of the child,
and issues relating to Mother’s suspended driver license. The
trial court therefore could have reasonably concluded that
Mother was on notice that the Evaluator’s final custody
recommendation might well change. The final custody
evaluation was timely delivered within the terms of the parties’
stipulation. Mother therefore received the exact amount of time
to respond to the evaluation as she had previously agreed was
appropriate. We see no abuse of discretion in the trial court’s
decision to hold Mother to the terms of the stipulation and in
denying her motion to continue.
II. Award of Primary Physical Custody
¶13 Next, Mother challenges the trial court’s decision to
award primary physical custody to Father. She contends that
certain of the trial court’s factual findings underpinning that
determination are unsupported by the evidence. A trial court’s
factual findings are clearly erroneous “only if they are in conflict
with the clear weight of the evidence, or if this court has a
definite and firm conviction that a mistake has been made.”
Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (citation
and internal quotation marks omitted).
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¶14 First, Mother contends that the trial court clearly erred in
finding that “in the past [Mother] has spent very little time
engaging in one-on-one time with the minor child in play and
learning.” However, Mother has directed us to no evidence in
the record to establish that the trial court’s finding is against the
clear weight of the evidence. The only evidence she has
identified that is arguably relevant to this finding is her own
testimony that, in the future, she would be able to work from
home on a schedule that would allow her to spend more time
with the child. But evidence that she will spend more time with
the child in the future has no bearing on whether there is
evidence, or a lack of evidence, demonstrating that she engaged
in one-on-one time with the child in the past. And Mother has
not addressed the evidence supporting the trial court’s finding.
“Logically, to show that a factual finding is against the clear
weight of the evidence, an appellant must candidly recount all of
the evidence supporting the finding and explain why it is
outweighed by the competing evidence.” Reeve & Assocs., Inc. v.
Tanner, 2015 UT App 166, ¶ 34. Mother has therefore failed to
meet her burden to demonstrate that the trial court’s finding is
clearly erroneous.
¶15 Second, Mother asserts that “[t]he trial court’s concern
with [Mother’s] ability to support a relationship between [the
child] and [Father] is not supported in fact.” Mother appears to
be challenging the trial court’s observation that between the
expiration of the temporary custody orders and trial, Mother had
restricted Father’s parent-time to the statutory minimum rather
than the more generous parent-time allowed by the temporary
orders and had otherwise shown an inability to be supportive of
Father’s relationship with the child. However, Mother identifies
no evidence either in support of or in opposition to the trial
court’s findings that would aid our analysis. Instead, she directs
us only to her testimony that while she did limit Father’s
visitation with the child once the temporary custody order had
expired, she did so only upon the advice of her attorney. That
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testimony, however, fails to demonstrate that the trial court’s
findings are clearly erroneous.
¶16 Third, Mother challenges the trial court’s “concern over
[Mother’s] financial stability.” Mother argues that the trial court
“has overlooked [Mother’s] recent actions in pursuing financial
stability,” but she identifies no record evidence from which we
can evaluate her claim. Mother has therefore failed to
demonstrate that the trial court’s findings regarding her financial
stability are clearly erroneous.
¶17 Last, Mother challenges the trial court’s findings that the
child had “no designated bedroom where he sleeps” and “few
specific age appropriate toys and educational materials in
[Mother’s] home.” Again, Mother directs us only to her own
testimony that the child did have his own bed and “several
toys.” Mother does not address the Evaluator’s testimony that
“basic things like toys and [an] appropriate place to sleep
weren’t provided for [the child]” at Mother’s house. The
Evaluator testified that on two different visits to Mother’s house,
she did not see any age-appropriate toys for the child. She also
testified that it did not appear that the child had a designated
sleeping area and did not have his own bed or crib. When the
Evaluator inquired, she received conflicting accounts from
Mother and Mother’s other children as to where the child slept.
Mother has not explained how the trial court’s findings lack
evidentiary support in light of the Evaluator’s testimony. She
has therefore failed to demonstrate that the trial court’s findings
are clearly erroneous.
¶18 Mother has failed to meaningfully address the evidence
supporting the trial court’s findings or persuasively demonstrate
that those findings are against the clear weight of the evidence.
We are therefore not convinced that the trial court’s findings are
against the clear weight of the evidence, and we conclude that
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the trial court did not abuse its discretion in awarding primary
physical custody of the child to Father.
III. Parent-Time Schedule 2
¶19 Next, Mother argues that the parent-time schedule
ordered by the trial court is not in the best interests of the child.
“[T]he parent-time schedule as provided in [section 30-3-35.5]
shall be presumed to be in the best interests of the child.” Utah
Code Ann. § 30-3-34(2) (LexisNexis 2013). This presumption can
be rebutted only upon a showing by a parent that more or less
parent-time should be awarded to the noncustodial parent. Id.
Utah Code section 30-3-35.5(3)(e) governs parent-time for a child
between eighteen months and three years old and provides for
alternating weekends from Friday to Sunday and a weekday
evening for three hours. The trial court ordered Mother’s parent-
time as alternating weekends from Friday to Sunday and
Tuesdays from 4:00 p.m. until Wednesday morning at 10:00 a.m.
The trial court’s order therefore allowed Mother more parent-
time than the statutory minimum. 3 See id.
¶20 Mother argues that the trial court erred in departing from
the Evaluator’s recommendation by not alternating her weekday
parent-time between Monday and Thursday. Although a trial
court is not bound to accept a custody evaluator’s
2. As previously noted, this section of the lead opinion reflects
the dissenting view of Judge Christiansen. The majority opinion
on the issue presented in this section is contained in Judge
Orme’s separate opinion. See infra ¶¶ 29–31.
3. Per the trial court’s order, Mother’s weekend parent-time ends
thirty minutes earlier on Sunday than provided by statute but
begins two hours earlier on Friday. Additionally, Mother’s
weekday parent-time consists of an overnight, whereas the
statute only provides for one three-hour weekday evening.
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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. Mother argues that the parent-time
schedule adopted by the trial court will result in periods of
separation from the child of up to seven days, which the
Evaluator testified would be disruptive for the child. The trial
court did not address this issue in rejecting the Evaluator’s
recommendation to alternate Mother’s weekday parent-time.
Rather, the trial court stated that it “declines to fully adopt [the
Evaluator’s] proposed schedule,” and gave no explanation or
reasoning to support its decision.
¶21 Without specific findings, I believe that this court cannot
properly review the trial court’s rejection of the Evaluator’s
recommendation. Although the trial court was not bound to
accept the evaluation, the trial court indicated no reason for its
departure from the Evaluator’s proposed parent-time schedule.
See Tuckey v. Tuckey, 649 P.2d 88, 90-91 (Utah 1982) (setting aside
an order of custody and remanding the case for further findings
to explain “some reason for rejecting [a social worker’s]
recommendation” where the trial court had failed to provide any
explanation for dismissing the social worker’s custody report).
¶22 I disagree with my colleagues’ assertion that a remand for
specific findings on this issue would merely result in the trial
court declaring that “the predictability and scheduling ease
presented by having a set weeknight outweighs the perceived
benefits of alternating weeknights.” Infra ¶ 30. I believe such
reasoning fails to prioritize the welfare of the child over the
desires of the parents and their schedules. See Peterson v.
Peterson, 818 P.2d 1305, 1308 (Utah Ct. App. 1991). While the trial
court has the discretion to establish parent-time, see Utah Code
Ann. § 30-3-32(2)(a) (LexisNexis 2013), that award of parent-time
must be in the best interests of the child, Tobler v. Tobler, 2014 UT
App 239, ¶ 24, 337 P.3d 296. Indeed, as this court has noted, it is
an “‘overarching principle’” that we should never lose sight of
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the best interests of the child. R.B., 2014 UT App 270, ¶ 17
(quoting Elmer v. Elmer, 776 P.2d 599, 604 (Utah 1989)).
¶23 I conclude that, given the Evaluator’s reasoned
explanation for why alternating Mother’s weekday parent-time
is in this young child’s best interests, the trial court abused its
discretion by rejecting that recommendation without articulating
some basis for its decision. See Tuckey, 649 P.2d at 90–91. I would
therefore vacate the trial court’s parent-time order and direct the
trial court to enter a new parent-time order supported by
findings demonstrating that the parent-time schedule is in the
child’s best interests.
IV. Right of First Refusal
¶24 Finally, Mother challenges the trial court’s decision to
limit the parties’ right of first refusal to provide child care to
situations when the child would require surrogate care
overnight. 4 Mother argues that the limitation on the right of first
4. Mother contends that the trial court limited her right of first
refusal to periods longer than twenty-four hours. This does not
appear to be an accurate reading of the trial court’s order. The
trial court stated,
The Court adopts the recommendation of [the
Evaluator] on this issue in that this right should not
extend to either party unless the parent requiring
child care needs such care overnight. In the event a
parent needs childcare for longer than 24 hours,
then the other parent should be notified and have
the right of first refusal to provide such care before
surrogate third party care is required.
Thus, the trial court’s order unambiguously states that it adopts
the Evaluator’s recommendation of an “overnight” trigger for
the right of first refusal. We read the balance of the court’s ruling
(continued…)
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refusal “has effectively taken away the opportunity for [Mother]
to provide care for her children” and thereby “contradict[ed] a
clear presumption under Utah law.”
¶25 Our legislature has enacted a number of advisory
guidelines that are “suggested to govern all parent-time
arrangements between parents.” Utah Code Ann. § 30-3-33
(LexisNexis 2013). One such guideline states, “Parental care shall
be presumed to be better care for the child than surrogate care
and the court shall encourage the parties to cooperate in
allowing the noncustodial parent, if willing and able to transport
the children, to provide the child care. Child care arrangements
existing during the marriage are preferred as are child care
arrangements with nominal or no charge.” Id. § 30-3-33(15). Yet,
while this statute favors parental care, “[t]he statute’s plain
language does not entitle the willing and able noncustodial
parent to provide day care. It merely suggests that the trial court
encourage such an arrangement based on the presumption that
parental care is better.” Wight v. Wight, 2011 UT App 424, ¶ 22,
268 P.3d 861 (alteration in original) (citation and internal
quotation marks omitted). Because Mother is not entitled to a
right of first refusal, it would have been within the trial
court’s discretion to have declined to order any right of first
refusal at all. Additionally, the court adopted the Evaluator’s
recommendation regarding the right of first refusal based on her
testimony that Mother’s relocation increased the travel time
between the parties. The court found that given both parties’
work schedules and the distance between their residences, “it is
not practical for either party to be able to assist the other with
child care.” Based on this, we do not agree that the trial court
(…continued)
on this issue as an additional and separate ruling that the right
would also apply when a party is unable to provide care for
periods longer than twenty-four hours.
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exceeded its considerable discretion in limiting the right of first
refusal to those times when the child would require surrogate
care overnight.
¶26 Mother also appears to argue that the trial court’s
selection of an overnight absence to trigger the right of first
refusal is arbitrary or unreasonable. She contends that “[t]here
appears to be little or no reason that the trial court has effectively
eliminated [Mother’s] right of first refusal.” The Evaluator
recommended allowing a right of first refusal only for overnight
absences, and testified that a right of first refusal for “smaller
blocks of time ends up being a point of conflict and the parties
become overly monitoring of one another.” Thus, there appears
to be an evidentiary basis for the trial court’s decision to limit the
right of first refusal to times when the child would need
surrogate care overnight. We therefore conclude that the trial
court did not abuse its discretion in ordering the right of first
refusal to extend only to overnight absences.
V. Attorney Fees on Appeal
¶27 Father requests an award of his attorney fees incurred on
appeal, asserting that Mother’s appeal “has no basis in fact or
law” and is therefore frivolous. We may award “just damages,”
which can include an award of attorney fees, if we conclude that
an appeal is frivolous. Utah R. App. P. 33(a). A frivolous appeal
is “one that is not grounded in fact, not warranted by existing
law, or not based on a good faith argument to extend, modify, or
reverse existing law.” Id. R. 33(b). “[T]he imposition of such a
sanction is a serious matter and only to be used in egregious
cases, lest the threat of such sanctions should chill litigants’
rights to appeal lower court decisions.” Redd v. Hill, 2013 UT 35,
¶ 28, 304 P.3d 861. Egregious cases may include those appeals
which are “obviously without merit, with no reasonable
likelihood of success, and which result in the delay of a proper
judgment.” Id. (citation and internal quotation marks omitted).
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Father has not demonstrated that this is an egregious case,
particularly where our decision in this case includes a dissenting
opinion in Mother’s favor on the parent-time issue. We therefore
deny Father’s request for attorney fees.
CONCLUSION
¶28 The trial court did not abuse its discretion in denying
Mother’s motion to continue the trial. Mother has failed to
demonstrate that the factual findings underlying the trial court’s
award of primary physical custody to Father are clearly
erroneous. And the trial court did not abuse its discretion in
limiting the parties’ right of first refusal to provide child care to
periods of overnight absence. We therefore affirm.
ORME, Judge (concurring and writing for the majority in part):
¶29 Judge Davis and I concur in the lead opinion, except for
Part III. We disagree with Judge Christiansen that remand is in
order to more precisely learn the trial court’s rationale in
selecting the particular weekday when Mother would have
parent–time with the child. This is, in context, an exceedingly
minor point. And the trial court’s rationale for deviating from
the Evaluator’s recommendation is obvious. A remand for the
trial court to state the obvious is not, in our view, a good use of
judicial resources or, for that matter, the parties’ resources.
¶30 In our view, the trial court did not substantially deviate
from the Evaluator’s recommendation, which was for Mother to
have one weeknight as well as alternating weekends. She got her
one weeknight, although not the alternating one recommended
by the Evaluator. Clearly the trial court thought it was more
sensible to just have a fixed weeknight—Tuesday—rather than
to jump back and forth between Monday and Thursday. If we
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remand for a specific finding, the trial court will just say—and
reasonably so—that it finds that the predictability and
scheduling ease presented by having a set weeknight outweighs
the perceived benefits of alternating weeknights.
¶31 With all due respect to our colleague, this hypertechnical
fine tuning in the trial court’s analysis is not worth the burden of
remand, especially where its rationale is so intuitive. Thus, the
court’s judgment is to affirm the trial court’s order in its entirety.
20131091-CA 14 2015 UT App 244