Blocker v. Blocker , 830 Utah Adv. Rep. 4 ( 2017 )

2017 UT App 10THE UTAH COURT OF APPEALS
KIRSTEEN D. BLOCKER,
Appellee,
v.
MICHAEL P. BLOCKER,
Appellant.
Memorandum Decision
No. 20150720-CA
Filed January 12, 2017
Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 024402553
Michael P. Blocker, Appellant Pro Se
Grant W.P. Morrison, Attorney for Appellee
JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES MICHELE M. CHRISTIANSEN and DAVID N.
MORTENSEN concurred.
TOOMEY, Judge:
¶1 Michael P. Blocker (Father) appeals the district court’s
order granting Kirsteen D. Blocker (Mother) unsupervised
parent time with their minor son. We remand to the district
court to enter findings of fact.
BACKGROUND
¶2 Father and Mother have one son (Child), who was not yet
four months old when these proceedings began. Pursuant to
their stipulation at the time the divorce decree was entered in
2004, the district court awarded the parties joint legal custody
Blocker v. Blocker
and shared parent time, with Child’s primary care and residence
being with Mother.
¶3 Eventually, Father petitioned the district court for a
custody modification. The matter went to trial in August 2009,
and the court granted Father sole legal and physical custody of
Child (the Custody Award).1 The court noted that numerous
professionals had been involved in the case, and that,
notwithstanding their efforts, Mother “ha*d+ a history of not
working with, not paying, or not establishing appropriate
professional relationships” with them. It expressed its “concern*+
about this history and the impact on the parties’ minor child.”
Mother had “declined” to coparent and “interfered” with Child’s
relationship with Father. The court found that “no joint physical
or legal custody of [Child] [was] possible” and that it was in
Child’s best interest to award sole custody to Father.
¶4 Child’s therapist and the court-appointed custody
evaluator recommended that Mother’s parent time be
supervised until Mother “has changed her mind set with regard
to her own parenting abilities and *Father’s+ relationship with
the child,” but the court was concerned that this would not be
practical for financial reasons. It therefore decided to permit
Mother unsupervised parent time, provided that she retain a
Special Master and verify her participation in individual therapy
and joint therapy with Child. The court “recognize*d+ that
awarding [Mother] statutory parent-time is an experiment as she
ha[d] been unable to cooperate with at least twelve (12) past
professionals,” but found that it was in Child’s “best interest to
give her one more chance.” Thus, until she verified her
1. Although the court announced its decision at the end of trial,
the decision was not reduced to writing until February 2010.
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compliance with the court’s terms, Mother’s parent time was to
be supervised.2
¶5 The next relevant development in litigation came in late
2013 when Mother filed a Motion to Clarify or Modify the
Custody Order. At a scheduling conference, the district court
instructed Mother to “submit an order to show cause.” Mother
then filed an order to show cause requesting that the court order
Father to “afford *Mother+ minimum statutory visitation.”
Curiously, however, at the order to show cause hearing in March
2014, the court noted that “there is no petition to modify. This is
an action to enforce the existing order. A motion to clarify [the]
existing order is not appropriate.” In any event, at an evidentiary
hearing in April 2014, the court sua sponte deemed Mother’s
order to show cause a petition to modify. At the conclusion of
that hearing, the court ordered “an evaluation of [Mother] and
her circumstances in relation to visitation.” The court set what it
referred to as a “status conference” for August 2014, but also
made clear that it would be “a hearing at which time the results
of the home study shall be reviewed, the need for supervised
exchanges or supervised visitation examined, and, a final
custody order entered.” In the meantime, all visits were to be
supervised.
¶6 Mother, represented by counsel, appeared for the status
conference in August 2014 and brought with her the home study
report and the person who prepared it. Father, representing
himself, objected that because he believed the proceeding was a
status conference and not an evidentiary hearing, he did not
2. In December 2010, Mother filed a complaint in federal court
against the judge and others involved in the divorce and custody
proceedings. Based on the existence of the federal action, Mother
filed a motion to disqualify the judge from the ongoing custody
proceedings, and he voluntarily recused himself. The case was
then reassigned. This case has been ongoing for fourteen years.
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have the opportunity to call witnesses on his own behalf and
was not prepared to cross-examine Mother’s witness. The court
continued the hearing to provide Father an opportunity to
prepare for cross-examination and to arrange for his own
witnesses. In the interim, based on the home study report and
“the status of the case,” the court granted Mother unsupervised
parent time.
¶7 The next hearing was not conducted until nearly one year
later in June 2015.3 Aside from the written home study report,
the court received no other evidence or testimony.4 The court
expressed disappointment in the report, calling it “[not]
particularly helpful” and its conclusions “very limited.” It also
called the case a “procedural mess” and proceeded in an
“informal way” to “get to the heart of this matter.” It decided to
make the August 2014 temporary order, which granted Mother
unsupervised parent time, permanent. Father objected, citing
Hogge v. Hogge, 649 P.2d 51 (Utah 1982), and asked the court how
3. The reason for this delay is difficult to determine. Father and
Mother each submitted witness lists and exhibits in September
and October 2014 in preparation for the upcoming hearing.
Father moved to deny Mother’s petition to modify the custody
order and to strike the home study report in November 2014.
These motions were not ruled on, and the date for oral argument
on the pending motions was not set until April 2015, when the
hearing was scheduled for the following June.
4. In September 2014, Mother identified the home study report as
an exhibit and indicated her intention to call one witness, the
person who prepared the report. In September and October 2014,
Father submitted over two hundred pages of exhibits and
identified seven potential witnesses. But no witnesses testified at
the June 2015 hearing, and the court considered no evidence
other than the report.
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it could modify a custody award without first finding there had
been a material change in circumstances. The court told Father it
had “wide discretion in these matters” and that there was
“satisfactory evidence in [the] file to demonstrate that [this
decision] is in the best interest of the child.” It ordered that
Mother’s unsupervised parent time be made permanent without
entering any findings of fact. Father appeals.
ISSUE AND STANDARD OF REVIEW
¶8 Father contends the district court erred in granting
unsupervised parent time to Mother without finding that there
had been a material change in circumstances since the court’s
custody determination in 2009.5 A district court’s decision to
modify parent time is reviewed for abuse of discretion. Tobler v.
Tobler, 2014 UT App 239, ¶ 12, 337 P.3d 296; see also Childs v.
Childs, 967 P.2d 942, 946 n.2 (Utah Ct. App. 1998) (“*W+e will not
disturb the trial court’s visitation determination absent a
showing that the trial court abused its discretion.”). “We review
a district court’s alleged failure to require evidence establishing a
material change of circumstances for correctness . . . .” Jones v.
Jones, 2016 UT App 94, ¶ 8, 374 P.3d 45.
5. Father raises five issues on appeal, but because four of them
are inadequately briefed, we address only the first issue on its
merits. See Utah R. App. P. 24; State v. Thomas, 961 P.2d 299, 304–
05 (Utah 1998) (outlining the requirements for an adequately
briefed argument and observing that “*i+t is well established that
a reviewing court will not address arguments that are not
adequately briefed”); infra ¶¶ 18–19.
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ANALYSIS
I. Inadequate Findings
¶9 As a threshold matter, Mother contends that Father’s
argument is inadequately briefed. We disagree. An adequately
briefed argument “contain*s+ the contentions and reasons of the
appellant with respect to the issues presented, including the
grounds for reviewing any issue not preserved in the trial court,
with citations to the authorities, statutes, and parts of the record
relied on.” Utah R. App. P. 24(a)(9). Father represents himself on
appeal and is “held to the same standard of knowledge and
practice as any qualified member of the bar.” See Nelson v.
Jacobsen, 669 P.2d 1207, 1213 (Utah 1983). But as a pro se party,
Father is entitled to “every consideration that may reasonably be
indulged.” See id. (citation and internal quotation marks
omitted).
¶10 In his first issue, Father presents a clear argument, with
citations to authority and the record. He also demonstrates, with
citations to the record, that the issue was preserved in the district
court. See Utah R. App. P. 24(a)(5)(A). Although Father does not
provide an in-depth legal analysis, his argument is sufficient to
show an error and why, under applicable authorities, that error
must be redressed. See State v. Lucero, 2002 UT App 135, ¶ 13, 47
P.3d 107 (“*T+o 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.” (alteration and omission in
original) (citation and internal quotation marks omitted)).
¶11 Father contends the district court erred “when it failed to
state any finding that there had been a material change in the
circumstances upon which the previous visitation award was
based.” He cites Hogge v. Hogge, 649 P.2d 51 (Utah 1982), which
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requires a two-step process when modifying a custody award.
First, the court must make a finding that “there have been
changes in the circumstances upon which the previous award
was based” that are “sufficiently substantial and material to
justify reopening the question of custody.” Id. at 54. And second,
the court must determine what custody arrangement would
serve the child’s best interest. Id. A modification of parent-time
rights generally requires this same two-step process. Becker v.
Becker, 694 P.2d 608, 611 (Utah 1984).
¶12 The Utah Supreme Court has acknowledged that the
“change in circumstances required to justify a modification of a
divorce decree varies with the type of modification sought.”
Haslam v. Haslam, 657 P.2d 757, 758 (Utah 1982). Whether there
has been a “material change with respect to visitation” is a
different inquiry from whether there has been a “material
change with respect to custody.” Jones v. Jones, 2016 UT App 94,
¶ 10 374 P.3d 45 (internal quotation marks omitted) (citing
Becker, 694 P.2d at 609, 611). While the inquiry with regard to
parent time “does not rise to the same level as the substantial
and material showing required when a district court alters
custody,” it still requires a showing of a change in
circumstances. Id. ¶ 10; see Becker, 694 P.2d at 611; Hogge, 649
P.2d at 54.
¶13 For example in Jones, the district court altered parent time
without making a separate finding of a substantial change in
circumstances. 2016 UT App 94, ¶¶ 7–10. But the court made
several findings that changes in the parties’ circumstances had
occurred—the parent with primary physical custody of the
children moved much closer to the other parent, who then
relocated closer still. Id. ¶ 11. Also, the original divorce decree in
Jones anticipated modifying parent time if the noncustodial
parent relocated to be closer to the children. Id.
¶14 Although a district court need not find a substantial and
material change in circumstances to alter parent time, it is still
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required to find some change in circumstances. Unlike the Jones
court, the court in this case made no findings that a change had
occurred, even when Father pressed the court to address this
issue. The court likewise made no specific findings regarding the
best interest of Child.
¶15 In making custody determinations, a court must provide
adequate and detailed findings of fact. Sukin v. Sukin, 842 P.2d
922, 924 (Utah Ct. App. 1992). “The importance of complete,
accurate and consistent findings of fact in a case tried by a judge
is essential to the resolution of dispute under the proper rule of
law.” Id. (citation and internal quotation marks omitted).
“Proper findings of fact ensure that the ultimate custody award
follows logically from, and is supported by, the evidence and the
controlling legal principles.” Id. (citation and internal quotation
marks omitted).
¶16 Here, because there are no findings to review, we cannot
determine whether the district court’s decision was based on
correct legal principles or whether it was supported by the
evidence. The only new evidence before the district court was
the home study report, which the court itself described as
limited and not particularly helpful. In making the Custody
Award, the court awarded Mother unsupervised parent time
provided that she verify that she met certain conditions;
supervision would continue if she did not. Years later, the court
temporarily suspended the supervision requirement, then made
the order permanent without explaining the basis for its
decision.
¶17 Because we are unable to conduct a meaningful review,
we remand to the district court for more detailed findings of fact.
II. Inadequate Briefing
¶18 Father raises four other issues on appeal. First, he
contends the district court erred when it decided that Mother’s
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“inability to comply with the conditions for her unsupervised
parent time constituted a material change in circumstances.”
Second, he contends the court erred when it signed the order
three days after it was submitted, without giving Father the
opportunity to object. Third, Father contends the court denied
him due process when it would not allow him to argue his
motion to dismiss, signed the order without notifying him, failed
to send him a copy of the order, failed to act on two other
motions, and changed the status conference to an evidentiary
hearing without notice. Fourth, Father contends the court erred
when it converted Mother’s order to show cause into a petition
to modify. These issues are inadequately briefed and we decline
to address them on their merits. See supra ¶¶ 8 n.5, 9; Utah R.
App. P. 24(a)(9) (requiring an adequately briefed argument to
“contain the contentions and reasons of the appellant with
respect to the issues presented . . . with citations to the
authorities, statutes, and parts of the record relied on”).
¶19 For example, with respect to Father’s contention that the
court erred when it decided that Mother’s inability to comply
with the conditions in the Custody Award constituted a material
change in circumstance, Father fails to identify where in the
record the district court made this decision.6 In addition,
although Father cites some authority, he does not provide
“development of that authority and reasoned analysis based on
that authority.” State v. Thomas, 961 P.2d 299, 305 (Utah 1998). In
any event, we need not address this issue because additional
findings on remand will either clarify this matter or dispose of it
entirely.
¶20 Father’s other arguments are also inadequately briefed.
They provide scant citations to the record, and where there is
6. This argument is curious given Father’s first argument, in
which he contends the court did not make “any finding that
there had been a material change in the circumstances.”
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citation to authority, he offers no development or reasoned
analysis based on that authority. We therefore decline to address
them.
CONCLUSION
¶21 Because the district court modified the parent time
requirements of the Custody Award without providing any
findings, we are unable to review its decision and remand for
more detailed findings. The other issues raised are inadequately
briefed and we therefore do not reach them on the merits.
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