Stephens v. Stephens , 437 P.3d 445 ( 2018 )

2018 UT App 196THE UTAH COURT OF APPEALS
DONOVAN TODD STEPHENS,
Appellee and Cross-appellant,
v.
BRIDGET NICOLE STEPHENS,
Appellant and Cross-appellee.
Opinion
No. 20170440-CA
Filed October 12, 2018
Third District Court, West Jordan Department
The Honorable James D. Gardner
No. 104400395
Jennifer R. Jackson, Attorney for Appellant
and Cross-appellee
Angilee K. Dakic and Amy F. Hugie, Attorneys for
Appellee and Cross-appellant
JUDGE KATE A. TOOMEY authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
TOOMEY, Judge:
¶1 Bridget Nicole Stephens (Mother) appeals the district
court’s judgment on a petition to modify a decree of divorce, and
Donovan Todd Stephens (Father) cross-appeals the same
judgment. Mother argues that the district court erred when it
awarded Father sole physical custody of the parties’ minor child
(Child), asserting the modified decree met the statutory
requirements for joint physical custody. Mother further argues
the court erred when it calculated Mother’s child support
obligation on the award of sole physical custody to Father,
asserting it should have used a joint physical custody worksheet.
Father cross-appeals, asserting the district court erred when it
Stephens v. Stephens
denied his requested relief for parent-time modification. We
affirm with respect to the sole physical custody designation and
the child support award. But we reverse and remand for the
district court to make additional findings with respect to the
parent-time award and, after doing so, to adjust its order as
necessary.
BACKGROUND
¶2 Father and Mother divorced in 2011. The parties were
awarded joint legal custody of Child, but Father was awarded
sole physical custody subject to Mother’s liberal parent-time.
Under the parent-time arrangement, Child stayed overnight
with Mother for more than thirty percent of the year. Because
Mother was unemployed, her child support obligation was
calculated based on an imputed minimum wage.
¶3 Four years later, Father filed a petition to modify the
divorce decree, asserting that a substantial and material change
of circumstances supported a reduction in Mother’s parent-time
and an increase of Mother’s child support obligation. As to
parent-time, Father claimed Mother had abused Child. The
abuse allegation was based primarily on a supported finding of
child abuse by the Utah Division of Child and Family Services
(the DCFS Finding). With regard to the child support issue,
Father claimed Mother had returned to work and asked for a
modification based on her new income.
¶4 Mother answered the petition, denying the abuse
allegation. Mother also filed a counter-petition to modify, asking
for an award of joint physical custody that designated her as
primary custodian. Mother’s counter-petition alleged Father did
not communicate with her about Child, Father “failed to work
with [Child]” regarding Child’s learning difficulties, and that she
was “concerned about [Child’s] nutrition and hygiene while in
[Father’s] custody.” Mother acknowledged her new employment
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and asked that child support be modified “based on the parties’
current income and the parent-time ordered, in compliance with
[Utah’s] child support guidelines.”
¶5 Based on the DCFS Finding, the district court entered a
temporary order, greatly reducing Mother’s parent-time,
terminating her overnight parent-time, and requiring
supervision during all visits. The district court also appointed a
private guardian ad litem (the GAL) to represent Child’s best
interest. The GAL was to make recommendations regarding the
alleged abuse and whether Mother’s parent-time should be
supervised.
¶6 The GAL interviewed Child, who reported “substantial
communication issues” with Mother, as well as physical and
emotional abuse. For example, Mother called Child “fat” and
“stupid,” causing Child “distress and problems with her
self-image.” Mother also “required” Child to call her every day,
and if Child missed a call, Mother became angry with her. In
addition, Child described witnessing episodes of violence by
Mother directed toward one of Mother’s other children and
Child’s step-father.
¶7 Child also detailed the incident that gave rise to the DCFS
Finding. According to Child, Mother was upset because Child
had not called her the previous night. Mother asked Child “what
goes on in her head,” while forcefully and repeatedly jabbing
and poking Child’s face, then hit Child’s leg with a fist. Child
ultimately told the GAL she was “terrified of [Mother]” and
would fear for her safety sleeping at Mother’s house if the
overnights resumed. Child feared Mother would “speak to her
inappropriately, hit her, or lash out at her in other ways.”
¶8 The GAL next interviewed Mother and was “openly
shocked” at the way Mother communicated about Child. The
GAL noted it was easy to understand why Child thought Mother
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called her “fat” or “dumb,” “despite different verbiage or use of
words.”
¶9 The GAL also interviewed Child’s personal therapist. The
personal therapist began treating Child for anxiety at school, but
the treatment evolved to include Child’s relationship with
Mother and a potential diagnosis of post-traumatic stress
disorder resulting from the incident that gave rise to the DCFS
Finding. The personal therapist concluded that Mother’s
damaging comments and the domestic violence toward Child
had created Child’s anxiety and caused her relationship with
Mother to become “toxic.” Child constantly worried about their
interactions because at “any moment [Mother] could go off.”
¶10 Based on the investigation, the GAL recommended the
court adopt a provisional “step-up” parenting plan. That plan
eventually eliminated supervision during Mother’s visits, and
allowed Mother a path to regain the parent-time awarded in the
original divorce decree. The plan gradually increased Mother’s
visits each week, with a return to parent-time as established in
the original decree after a successful six-week period. The GAL
recommended continued therapy for Mother and Child as well
as feedback from the therapists as the process moved forward.
Also, the plan made returning to the original parent-time
schedule contingent on Mother refraining from further abusive
behavior. If Mother engaged in additional incidents of violence
or abuse directed at Child, the step-up plan would cease
immediately and Mother’s parent-time would return to what it
was under the temporary order.
¶11 The district court also received evidence at trial. Father
detailed his understanding of the incident giving rise to the
DCFS Finding and testified to Mother’s other violent outbursts.
Father also testified that Child smoked marijuana during a
supervised visit at Mother’s house. Ultimately, Father asked the
court to adopt an extended step-up plan that would allow
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Mother overnight parent-time only after six months and cap
Mother’s potential parent-time at the statutory minimum under
Utah Code section 30-3-35.
¶12 Mother also testified, denying Child’s version of the
incident giving rise to the DCFS Finding. Mother admitted
“tapping” Child on the head, but she disputed the number of
taps, and denied hitting Child’s leg. In addition, Mother denied
that Child smoked marijuana at Mother’s house. Mother
ultimately asked the court to award joint physical custody,
identifying her as primary custodian.
¶13 The court also considered “affidavit-style answers” to the
parties’ questions submitted by the Child’s personal therapist
and Mother and Child’s reunification therapist. The personal
therapist reported Child’s symptoms of post-traumatic stress
disorder and recommended continued personal and
reunification therapy to increase Child’s “feelings of safety in the
presence of [M]other.” The personal therapist said she felt a
step-up plan was appropriate, but she believed Child and
Mother needed more than six weeks for reunification therapy
before the plan was set in place. The personal therapist also
recommended a “safety plan” to assist Child in the eventual
transition back to increased, overnight parent-time with Mother,
and to reduce the risk of physical violence that Child felt was
“high as changes in [parent-time] [were] being addressed.” That
safety plan included (1) allowing Child to have her phone with
her at all times when she is with Mother, (2) allowing Child to
state “I feel unsafe right now” and go to a secluded area for at
least half an hour of alone time, and (3) requiring a lock on
Child’s bedroom door at Mother’s house that Child could lock
before going to sleep.
¶14 The reunification therapist explained, “[Child] and
[Mother] have been able to do some repair in their relationship,
but it is both mine and [Child’s] opinion that the work isn’t
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completed and family therapy should continue.” The
reunification therapist said Child was still working to develop
“some power in the relationship between her and [Mother]” and
that “it is going to likely require a combination of more
counseling (both individual and family) and getting older and
more mature.” The reunification therapist said she believed the
six-week step-up plan was “appropriate because it gives [Child]
a chance to . . . get used [to] the changes gradually.”
¶15 After considering the evidence, the district court entered
an order supported by findings of fact and conclusions of law.
First, the district court found Mother’s abuse of Child
constituted a significant and material change in circumstances
warranting modification of parent-time. The findings stated that
the abuse was “well documented,” citing the DCFS Finding,
Child’s confirmation of that finding, and Father’s testimony
regarding the incident. The district court also found Mother had
made other “violent outbursts in the presence of or directed at”
Child, and that Child used marijuana at Mother’s house during a
supervised visit. The court concluded Child was suffering from
post-traumatic stress disorder, and her relationship with Mother
had become strained.
¶16 Despite the findings of abuse, the district court found the
relationship between Mother and Child had improved through
temporary parent-time restrictions and counseling. As such, the
district court concluded it remained in Child’s best interest that
the original custody order remain in place—that Father retain
sole physical custody and Mother have parent-time as set forth
in the original decree—subject to a “step-up” plan.
¶17 The district court granted, in part, Father’s petition to
modify. First, it ordered the immediate adoption of the six-week
step-up plan (without supervision), and the “safety plan,” as
recommended by Child’s personal therapist. To support that
modification, the court relied on the declarations of both the
20170440-CA 6 2018 UT App 196Stephens v. Stephens
personal therapist and the reunification therapist “that a step-up
and reunification plan [were] in the best interest of [Child].”
Additionally, the district court ordered that Child continue
personal therapy, and that Mother and Child continue
reunification therapy until the reunification therapist
determined, “with input from [Child],” it was no longer
necessary. The court also conditioned the return to the original
parent-time arrangement, noting that if Mother engaged in
additional episodes or incidents of violence or physical abuse
against Child, the step-up plan would cease immediately and
supervised visits would be restored in accordance with the terms
of the temporary orders.
¶18 The court also modified the parties’ child support
obligations to an amount consistent with Mother’s new income,
noting that “[b]oth parties acknowledged that there was a
material change in circumstances related to [Mother’s]
employment status and this was not a contested issue in this
case.” It made the calculation based on the sole physical custody
calculation in Utah Code section 78B-12-205.
¶19 Mother appeals and Father cross-appeals.
ISSUES AND STANDARDS OF REVIEW
¶20 Mother contends the district court erred in two respects.
She argues it should not have granted sole physical custody to
Father, asserting the modified order satisfies Utah’s statutory
definition of joint physical custody. Next, Mother contends the
court erred by not using a joint physical custody child support
worksheet to calculate her obligation. “A [district] court’s
interpretation of a statute is a question of law that we review for
correctness.” Spall-Goldsmith v. Goldsmith IV, 2012 UT App 302,
¶ 6, 288 P.3d 1105 (quotation simplified). Otherwise, this court
reviews the district court’s decision whether to modify a custody
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award and an award of child support for an abuse of discretion.
Woodward v. Woodward, 709 P.2d 393, 394 (Utah 1985).
¶21 Father cross-appeals, contending the district court erred
in failing to modify the parent-time order and award Mother
only the statutory minimum amount of parent-time, as
requested in his petition to modify. He argues “the [district]
court’s findings supporting denial of [Father’s requested]
parent-time modification are not clear and are contrary to the
evidence.” This court reviews a district court’s parent-time
determination for abuse of discretion. See Trubetzkoy v.
Trubetzkoy, 2009 UT App 77, ¶ 7, 205 P.3d 891.
ANALYSIS
I. Custody Designation
¶22 Mother argues the district court erred by awarding Father
sole physical custody. We disagree. Mother failed to show a
substantial and material change in circumstances justifying a
change to the custody designation. Thus, the original custody
order appropriately remained unchanged in that regard.
¶23 Under Utah law, there is “neither a preference nor a
presumption for or against joint physical custody or sole
physical custody.” Utah Code Ann. § 30-3-10(5) (LexisNexis
Supp. 2017). Instead, “the court and the family [have] the widest
discretion to choose a parenting plan that is in the best interest of
the child.” Id. Joint physical custody “means the child stays with
each parent overnight for more than 30% of the year, and both
parents contribute to the expenses of the child in addition to
paying child support,” id. § 30-3-10.1(3)(a), in appropriate cases.
¶24 Once the district court makes an initial custody
determination, it “has continuing jurisdiction . . . and may later
make such changes in custody provisions as it determines are
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reasonable and necessary for the welfare and best interests of
the child.” Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982)
(quotation simplified). But before the district court may
modify custody, the moving party must first show changed
circumstances that warrant reconsideration of the issue. See
id. Once the district court finds such changed circumstances,
it considers the best interest of the child to decide “the manner
in which custody should be modified, if at all.” See id. A
district court “is given broad discretion” in deciding whether
to modify custody, and “its decision will not be disturbed
absent a showing of an abuse of discretion or manifest
injustice.” Maughan v. Maughan, 770 P.2d 156, 159 (Utah Ct. App.
1989).
¶25 Here, the district court awarded Father sole physical
custody in the original divorce decree. In Mother’s counter-
petition, she asked the district court to change that designation
to joint physical custody and award her primary custody. But
the court denied Mother’s request, finding that Mother had not
met her burden. Although the court noted “that [Father] has not
shared all important information with [Mother] in a timely
manner,” and that “both parties testified that [Child] struggles
with schooling,” the court found there was insufficient “credible
evidence that changing parent-time or custody as requested by
[Mother] would resolve these struggles—particularly given the
abuse findings.”
¶26 The district court did not abuse its discretion
when it denied Mother’s request to modify the custody
designation. Father’s actions, and the lack of communication
between Mother and Father, do not “indicate that the
custodial circumstances of [Child] or the parenting
capabilities of [Father]” have been affected. See Becker v. Becker,
694 P.2d 608, 611 (Utah 1984). Thus, the court acted within
its discretion in denying Mother’s counter-petition to
modify custody.
20170440-CA 9 2018 UT App 196Stephens v. Stephens
¶27 Further, the parent-time modifications the court made did
not require an alteration of the physical custody designation.
The district court granted, in part, Father’s petition to modify
parent-time. First, it implemented the temporary order, greatly
limiting Mother’s parent-time. Next, the court ordered the step-
up plan, allowing Mother to regain the parent-time she was
awarded in the original divorce decree so long as she satisfied
the plan’s conditions. Those modifications, however, did not
necessarily affect the award of custody as designated in the
original divorce decree. The court specifically found the custody
arrangement as entered in the original decree remained in
Child’s best interest and would remain in place. Because Mother
did not establish a change in circumstances warranting
reconsideration of the issue, the original order remained
unchanged regarding Father’s sole physical custody designation
and the court was not required to modify the physical custody
designation. 1
II. Child Support
¶28 Mother next argues the district court failed to comply
with Utah’s statutory child support guidelines when it used a
sole physical custody worksheet to calculate her child support
obligation. We disagree. Because the step-up parenting plan
1. Much of Mother’s argument centers on her assertion that
Child currently stays overnight with Mother for more than thirty
percent of the year as required for joint physical custody under
Utah law. See Utah Code Ann. § 30-3-10.1(3)(a) (LexisNexis
Supp. 2017). But, as we discuss infra ¶ 30, Mother’s parent-time
under the district court’s order was contingent on successful
completion of the step-up plan. Any remedy Mother may have
with respect to the physical custody designation following her
successful completion of the step-up plan lies with the district
court.
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allowed Mother the time required for joint physical custody only
after six weeks, contingent on Mother’s actions, the modified
parent-time order did not meet the requirements for a joint
physical custody child support calculation.
¶29 Under the Utah Child Support Act, child support
obligations are generally calculated using a worksheet in cases of
joint physical custody. See Spall-Goldsmith v. Goldsmith IV, 2012
UT App 302, ¶ 8, 288 P.3d 1105; see also Utah Code Ann. § 78B-
12-208 (LexisNexis 2012). Moreover, for purposes of calculating
child support, the designation of “joint physical custody” or
“sole physical custody” is not as important as whether the
custody arrangement “exceed[s] the [statutory] threshold for
joint physical custody.” See Udy v. Udy, 893 P.2d 1097, 1100
(Utah Ct. App. 1995) (concluding that the district court erred
when it used a sole custody child support worksheet when
“[a]lthough labeled ‘sole custody,’ the [district] court awarded
[the father] [parent-time] that exceeded the [statutory] threshold
for joint physical custody”). In Utah, a custody plan meets the
requirements for joint physical custody when “the child stays
with each parent overnight for more than 30% of the year, and
both parents contribute to the expenses of the child in addition
to paying child support.” Utah Code Ann. § 78B-12-102(15)
(LexisNexis Supp. 2018). When those requirements are met, a
court must “use a joint [physical] custody child support
worksheet . . . [or] make findings supporting its deviation.”
Spall-Goldsmith, 2012 UT App 302, ¶ 8 (quotation simplified).
¶30 Here, the district court modified child support and was
thus required to make the modification consistent with the Utah
Child Support Act. The parties agree that the modified divorce
decree awarded Mother a path to obtain overnight parent-time
with Child for more than thirty percent of the year. But under
the modified decree, Mother could not achieve such parent-time
until after successfully completing the six-week step-up plan.
Further, Mother’s increased parent-time was conditioned on her
20170440-CA 11 2018 UT App 196Stephens v. Stephens
refraining from engaging in further abusive behavior toward
Child. Thus, at the time the court entered the order, Mother was
not entitled to overnight parent-time with Child for more than
thirty percent of the year. Accordingly, the modified decree did
not meet the requirements for joint physical custody under Utah
Code section 78B-12-102(15), and the district court was not
required to use a joint physical custody worksheet to calculate
Mother’s child support obligation.
III. Parent-Time
¶31 Father argues the district court erred in denying his
requested relief for parent-time modification. He contends “the
district court’s findings supporting denial of [his requested]
parent-time modification are not clear and are contrary to the
evidence.” We agree that the court’s findings in support of the
parent-time modification were not sufficiently detailed to inform
the parties of the court’s reasoning or facilitate meaningful
appellate review. See Lay v. Lay, 2018 UT App 137, ¶ 28
(concluding that “the district court’s findings were inadequate to
disclose the steps by which the court reached its ultimate
conclusion” regarding modification of a parent-time agreement).
¶32 “[District] courts have continuing jurisdiction to consider
motions to modify dealing with child custody and
[parent-time],” Kallas v. Kallas, 614 P.2d 641, 645 (Utah 1980), and
to make such modifications “as [they] determine[] are reasonable
and necessary for the welfare or best interests of the child,”
Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982) (quotation
simplified); see also Utah Code Ann. § 30-3-5(3) (LexisNexis
Supp. 2017) (recognizing the district court’s continuing
jurisdiction over child custody and child maintenance
determinations).
¶33 The district court’s decision to modify a decree of parent-
time “must involve two separate steps.” Hogge, 649 P.2d at 54.
First, the court must find that the petitioner has made “some
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showing of change in circumstances” that would support a
modification of parent-time. Jones v. Jones, 2016 UT App 94, ¶ 10,
374 P.3d 45; see id. (explaining that the showing of a change in
circumstance when a district court alters parent-time
arrangements “does not rise to the same level as the substantial
and material showing required when a district court alters
custody”). 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.” Hogge, 649 P.2d at 54.
¶34 “[T]he [district] court’s proximity to the evidence places it
in a better position than an appellate court to choose the best
custody arrangement.” Trubetzkoy v. Trubetzkoy, 2009 UT App 77,
¶ 6, 205 P.3d 891. Thus, we generally “will not disturb the
[district] court’s [parent-time] determination absent a showing
that the [district] court has abused its discretion.” Id. ¶ 7
(quotation simplified).
¶35 Although the district court’s discretion is broad, that
discretion “must be exercised within the confines of the legal
standards set by the appellate courts.” Schindler v. Schindler, 776
P.2d 84, 87 (Utah Ct. App. 1989). In addition, the “facts and
reasons for the court’s decision must be set forth in appropriate
findings of fact and conclusions of law.” Id. “The district court’s
factual findings are adequate only if they are sufficiently
detailed and include enough subsidiary facts to disclose the
steps by which the ultimate conclusion on each factual issue was
reached.” Lay, 2018 UT App 137, ¶ 19 (quotation simplified).
Without sufficient detail and clarity, appellate courts cannot
“ensure that the district court’s discretionary determination was
rationally based,” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d
882, and ensure that “the parties are informed of the district
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court’s reasoning,” Lay, 2018 UT App 137, ¶ 19 (quotation
simplified).
¶36 Here, the district court found Father had shown “a
significant change in circumstances that warrant[ed] a
modification of parent-time . . . based on the . . . finding of child
abuse of [Child] by [Mother].” The court’s finding was
supported with detailed, subsidiary findings of fact, including
that the DCFS Finding was credible, well-documented, and
confirmed by Child. 2 In addition, the district court found Mother
made “multiple violent outbursts in the presence of or directed
at Child,” and Child used marijuana at Mother’s house during a
supervised visit. “[B]ased on [Mother’s] abusive behavior,” the
district court found “that [Child] is suffering from post-
traumatic stress disorder . . . and that [Child’s] relationship with
[Mother] is strained.”
¶37 The district court then began the second step to determine
which parent-time arrangement would serve Child’s best
interest. To that end, the court modified parent-time by ordering
2. We note that Mother appealed the DCFS Finding during this
appeal, and we were informed by Mother’s counsel that it was
changed from “supported” to “unsupported.” An unsupported
finding means “there is insufficient evidence to conclude that
abuse . . . occurred.” Utah Code Ann. § 62A-4a-101(45)
(LexisNexis Supp. 2018). But an unsupported finding does not
mean “that [DCFS] . . . conclude[d] that the allegation was
without merit.” Id. “Without merit” is a separate designation
that means DCFS determined “the alleged abuse . . . did not
occur.” Id. § 62A-4a-101(46). On remand, “the decision whether
to take additional evidence” regarding the parent-time order “is
within the sound discretion of the [district] court.” Interiors
Contracting, Inc. v. Smith, Halander & Smith Assocs., 881 P.2d 929,
931 (Utah Ct. App. 1994) (quotation simplified).
20170440-CA 14 2018 UT App 196Stephens v. Stephens
the immediate adoption of the six-week step-up plan. But the
court found that it remained in Child’s best interest that Mother
retain parent-time as set forth in the original decree, following
successful completion of the step-up plan.
¶38 We are unable to properly review the district court’s
parent-time modification because its findings regarding
parent-time did not contain sufficient detail to explain the “steps
by which the ultimate conclusion” was reached. See Lay, 2018 UT
App 137, ¶ 19 (quotation simplified). The only findings to
support a return to Mother’s original parent-time after
completion of the six-week step-up plan were that the
relationship between Mother and Child had “improved through
counseling and due to the restrictions that [had] been in place
since the temporary orders were entered,” and that the court
“found credible” the therapists’ opinions “that a step-up and
reunification plan are in the best interest of [Child].”
¶39 As to the therapists’ opinions, the district court’s finding
was that the therapists supported “a” step-up plan, not “the”
step-up plan. As Father notes, Child’s personal therapist
recommended a longer period for reunification and a
“step-down” schedule, basing that recommendation on the lack
of progress Child felt had taken place in therapy. The court did
not explain why it deemed the reunification therapist’s
recommendation of a six-week step-up plan was more
appropriate than the the personal therapist’s recommendation
regarding a longer period of time for further reunification
therapy before Mother regained her parent-time. The court may
have reached that conclusion because it found the reunification
therapist’s testimony more credible than Child’s personal
therapist’s testimony. But the court “did not provide any such
explanation.” See id. ¶ 28.
¶40 Further, compelling evidence in the record supports a
contrary conclusion regarding Mother and Child’s relationship.
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Child stated she was “‘afraid’ of [Mother], and [did] not feel
[Mother] [had] the capacity to change or learn anything from
therapy.” Through the GAL, Child told the district court she
would be “in fear for her safety” if she slept at Mother’s house.
¶41 Child’s personal therapist reported that the relationship
between Mother and Child had not improved. At the time of the
personal therapist’s recommendation, Mother and Child had
completed only two months of reunification therapy and
attended only eight sessions. Indeed, the record indicates that
both therapists and the GAL expressed concerns about the
uncertain results of the reunification therapy. Those concerns are
highlighted by several statements, including “there hasn’t been
progress,” “the work isn’t complete,” and “[I] am concerned by
the actions of [Mother] and the effect of her actions on [Child].”
¶42 “A [district] court’s failure to provide adequate findings is
reversible error when the facts are not clear from the record.”
Bartlett v. Bartlett, 2015 UT App 2, ¶ 2, 342 P.3d 296 (quotation
simplified). That is the case here. The district court’s findings of
fact do not “show that the court’s judgment . . . follows logically
from, and is supported by, the evidence.” Id. (quotation
simplified). Given the court’s finding of “significant change
warranting modification of parent-time,” it was required to state
adequate findings to ensure there was a rational basis to support
its decision to allow Mother to return to her extended, overnight
parent-time after just six weeks. See Lay, 2018 UT App 137, ¶ 19.
The district court’s findings are therefore insufficient.
¶43 We agree with Father’s argument that “jump[ing] from
establishing that there has been a significant change of
circumstances that warrants modification, to then stating that . . .
the relationship between [Mother] and [Child] [had] improved
through counseling” renders the conclusion regarding
parent-time “not entirely clear.” Considering the court’s findings
of abuse, and the conflicting evidence regarding the appropriate
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restrictions and conditions to Mother’s parent-time, it is not
“reasonable to assume that the [district] court actually
considered the controverted evidence and necessarily made a
finding to resolve the controversy, but simply failed to record
the factual determination it made.” Fish v. Fish, 2016 UT App
125, ¶ 22, 379 P.3d 882 (quotation simplified); see also Hall v. Hall,
858 P.2d 1018, 1025 (Utah Ct. App. 1993) (determining that
“missing findings can be viewed as harmless error” where “the
undisputed evidence clearly establishes the factor or factors on
which findings are missing,” or where “the absent findings can
reasonably be implied” (quotation simplified)).
¶44 In sum, the district court’s findings were “inadequate to
disclose the steps by which the court reached its ultimate
conclusion” that Mother’s relationship with Child had
improved, making the six-week step-up plan in Child’s best
interest. See Lay, 2018 UT App 137, ¶ 28. We thus remand to the
district court to make additional findings with respect to
whether the modified parent-time plan is in Child’s best interest
and to adjust its order as may be appropriate, given those
findings.
CONCLUSION
¶45 We conclude the district court did not err in awarding
sole physical custody to Father. We also conclude it did not err
in using a sole physical custody worksheet to calculate Mother’s
child support obligation. But we conclude the district court did
not provide adequate findings to support its ultimate
parent-time award and therefore remand to the district court to
make additional findings with respect to whether the modified
parent-time plan is in Child’s best interest. The court may, in its
discretion, allow additional evidence with regard to parent-time.
And with the additional findings made, the court shall adjust its
order as may be appropriate.
20170440-CA 17 2018 UT App 196