Bartlett v. Bartlett , 342 P.3d 296 ( 2015 )

2015 UT App 2_________________________________________________________
THE UTAH COURT OF APPEALS
JEREMY T. BARTLETT,
Petitioner and Appellant,
v.
CLAUDIA L. BARTLETT,
Respondent and Appellee.
Memorandum Decision
No. 20130683-CA
Filed January 2, 2015
Fifth District Court, St. George Department
The Honorable James L. Shumate
No. 084500462
Jeremy T. Bartlett, Appellant Pro Se
Claudia L. Bartlett, Appellee Pro Se1
JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and
KATE A. TOOMEY concurred
VOROS, Judge:
¶1 Jeremy T. Bartlett (Father) and Claudia L. Bartlett
(Mother) divorced in May 2008. Shortly after their divorce, the
trial court awarded temporary custody of the couple’s two
children to Father. After a bench trial in 2012, the trial court
awarded primary physical custody to Mother and joint legal
custody to both parents. Eight months after the bench trial, the
1. Appellee did not file a brief on appeal.
Bartlett v. Bartlett
trial court entered its findings of fact and conclusions of law.
Father appeals the trial court’s order granting Mother primary
physical custody of the children. We conclude that the trial
court’s findings do not adequately support the custody award.
Consequently, we vacate the trial court’s order granting Mother
primary physical custody and remand for further proceedings.
In all other respects, we affirm the order of the trial court.
I. Inadequate Findings of Fact
¶2 Father contends that the trial court’s findings do not
adequately support its decision. He argues that they lack
sufficient detail and fail to disclose the rationale for awarding
Mother primary physical custody. “A trial court’s failure to
provide adequate findings is reversible error when the facts are
not clear from the record.” Andrus v. Andrus, 2007 UT App 291,
¶ 17, 169 P.3d 754. Generally, “findings of fact must show that
the court’s judgment or decree follows logically from, and is
supported by, the evidence. The findings should be sufficiently
detailed and include enough subsidiary facts to disclose the
steps by which the ultimate conclusion on each factual issue was
reached.” Id. (citation and internal quotation marks omitted).
¶3 Here, the trial court’s findings do not include enough
subsidiary facts to disclose the steps by which the trial court
decided to award Mother primary physical custody of the
children. See id. After a bench trial in April 2012, the trial court
described both Mother and Father as “fit and proper parents.”
The court awarded primary physical custody to Mother,
explaining that the “deciding point” for the custody award was
the “change in circumstances shown by [Mother] versus
[Father].” To support this conclusion, the trial court noted that
Mother now supported herself, in contrast to Father, who was
“still somewhat supported by his parents.”
¶4 Before the trial court entered its findings of fact, however,
it held a review hearing. At the review hearing, Father alleged
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that Mother “refuses to allow *Father+ to have his time” with the
children, in violation of the visitation schedule set at trial. Father
further alleged that the children’s performance in school had
suffered since the court awarded Mother primary physical
custody, that Mother “may have been involved in another
domestic violence event,” and that Mother was “expecting
another child” with a man to whom she was not married. Based
on these allegations the court admonished Mother and reminded
her that she needed to obey the court-ordered visitation
schedule:
Miss Bartlett, my decision announced from the
bench is the law of your case. You will follow it,
ma’am. . . . It is not reasonable . . . for you to show
up in my courtroom complaining about Mr.
Bartlett’s behavior when you are expecting a child
by a man to whom you are not married, and your
children are seeing your inappropriate conduct
and the evidence of that conduct on a daily basis.
You do as the court has directed. . . . Mr. Bartlett is
entitled to his weekends and two overnights per
week.
¶5 A month after this review hearing, the trial court entered
its findings of fact and conclusions of law awarding Mother
primary physical custody. These findings describe the status of
the parties in some detail. They state that “[b]oth parties have
become responsible enough to maintain their own households”;
conclude that “both parties, in the presence of the children, have
learned to focus on the children’s needs”; state that “the children
were happy and well-adjusted in their living circumstances with
*Father+” for the four years preceding trial; summarize the
conclusions of the custody evaluator and other experts; and
conclude that “[b]oth parents are fit and proper persons to have
custody of their minor children.” Indeed, the court indicates that
the parties “are evenly balanced” in all respects except one:
“[Mother] is better able and equipped to support and sustain a
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positive relationship between [the children] and their father.
[Father] has not shown a similar propensity.”
¶6 Reviewing these findings of fact in light of the record, we
conclude that, though admirably detailed, they do not disclose
the steps by which the court reached its decision to award
custody to Mother. See Andrus, 2007 UT App 291, ¶ 17. The
custody award hangs on the factual conclusion that Mother “is
better able and equipped to support and sustain a positive
relationship between the [children] and their father.” But the
trial court identified no subsidiary facts supporting this
finding—a striking omission in light of the fact that the court
had recently admonished Mother for denying Father court-
ordered access to the children. In addition, the court’s findings
do not elucidate why, in light of the parents’ respective track
records, the court found them “evenly balanced” in all other
respects.
¶7 Nor is the basis for the custody award “clear from the
record.” Andrus v. Andrus, 2007 UT App 291, ¶ 17, 169 P.3d 754.
Both the custody evaluator and the guardian ad litem
recommended that Father maintain primary physical custody.
“Although 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. Even the licensed clinical social worker
called by Mother at trial testified only that Mother’s care of the
children “exceeds that of a daycare setting.” She did not
recommend awarding primary physical custody to Mother, only
increasing Mother’s parent-time. Nor did she—or any other
witness—testify that Mother was better able than Father to foster
a relationship between the noncustodial parent and the children.
¶8 Because the trial court’s findings lack sufficient detail to
demonstrate a factual basis for the custody award, we vacate
that award and remand the case for further proceedings,
including supplementation of the court’s findings and
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reconsideration of the custody award in light of those
supplemented findings.2
II. Ex Parte Communication
¶9 Next, Father contends that the trial court erred by
receiving ex parte communications from Mother in the form of
letters to the court. “A judge shall not initiate, permit, or
consider ex parte communications, or consider other
communications made to the judge outside the presence of the
parties or their lawyers, concerning a pending or impending
matter . . . .” Utah Code Jud. Conduct R. 2.9(A). However, we
recognize no “categorical rule that whenever a judge engages in
an ex parte conversation, he or she is deemed to be partial,
biased, or prejudiced such that disqualification is mandated.” In
re Young, 1999 UT 81, ¶ 36, 984 P.2d 997. The complaining party
“must instead establish that the ex parte communication
stemmed from or otherwise involved the type of personal bias or
prejudice contemplated by [rule 2.11(A)(1) of the Utah Code of
Judicial Conduct+.” Id. That rule provides that “personal bias or
prejudice concerning a party or a party’s lawyer, or personal
knowledge of facts that are in dispute in the proceeding”
requires disqualification. Utah Code Jud. Conduct R. 2.11(A)(1).
¶10 Father has not made the requisite showing here. The only
record evidence he cites in support of his contention is an
exchange at the review hearing. The trial court told Mother, “It’s
not appropriate for you to send something to me without
2. Father also contends that the trial court abused its discretion
in disregarding testimony of several witnesses who
recommended that Father maintain primary physical custody.
But because we rule that the findings of fact inadequately
disclose the steps by which the trial court came to its conclusion,
we need not reach this contention.
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*Father’s counsel+ seeing it at the same time.” Mother responded,
“That’s what I have been doing, Your Honor.” The court then
replied, “Good. I want to just make sure that you still do that.”
The exchange does not clearly establish the existence of an ex
parte communication, much less one that stemmed from or
resulted in personal bias or prejudice.
¶11 In conclusion, we reject Father’s ex parte communication
claim but vacate the custody award and remand the case for
entry of supplemental findings and a new custody award in
light of those supplemental findings.
20130683-CA 6 2015 UT App 2