Woodward v. LaFranca , 736 Utah Adv. Rep. 24 ( 2013 )

2013 UT App 147_________________________________________________________
THE UTAH COURT OF APPEALS
JAMES WOODWARD,
Petitioner and Appellant,
v.
JULIE LAFRANCA,
Respondent and Appellee.
Opinion
No. 20120545‐CA
Filed June 13, 2013
Fourth District, Provo Department
The Honorable Steven L. Hansen
No. 064401496
Sara Pfrommer and John Murray, Attorneys for
Appellant
Brent D. Young and Dallas B. Young, Attorneys for
Appellee
JUDGE JAMES Z. DAVIS authored this Opinion, in which
JUDGES WILLIAM A. THORNE JR. and MICHELE M. CHRISTIANSEN
concurred.
DAVIS, Judge:
¶1 James Woodward (Father) challenges the trial court’s denial
of his petition to modify the custody provisions of his and Julie
LaFranca’s (Mother) divorce decree. We reverse and remand for
further proceedings.
BACKGROUND
¶2 Father filed for divorce from Mother in July 2006,
immediately before their son (Child) was born. Although Father
Woodward v. LaFranca
initially petitioned for custody, he was soon after deployed to Iraq
and the divorce was put on hold. In November 2007, the parties
entered into a Stipulation and Agreement regarding custody and
visitation, wherein Mother was awarded sole physical custody of
Child subject to Father’s rights to parent time. The trial court
accepted the stipulation and entered a decree of divorce on
February 15, 2008.
¶3 Between 2008 and 2010, the parties had a number of
disputes concerning visitation, which resulted in additional court
proceedings. In August 2009, Mother began making reports to
police, the Department of Child and Family Services (DCFS), and
the United States Army (Father’s employer), alleging that Child
had been physically and sexually abused during Father’s parent
time. Such complaints continued through July 2010 and resulted in
a number of forensic interviews and examinations of Child. In
September 2009, Mother put Child in therapy for the purpose of
addressing the alleged abuse. After several months in therapy,
Mother requested a new therapist because “she was looking for
someone that maybe [Child] would talk to and she didn’t feel like
she was getting what she needed out of [the first therapist].” The
second therapist (the Therapist) saw Child between December 2009
and August 2010. All of Mother’s abuse allegations were
determined to be unfounded.
¶4 On July 28, 2010, Father filed a Petition to Modify Decree of
Divorce, in which he requested that sole physical custody of Child
be transferred to him. On November 8, 2010, a domestic
commissioner (the Commissioner) found that Mother had severely
abused Child by making repeated unsubstantiated abuse
allegations to various agencies and subjecting Child to multiple
unnecessary forensic interviews and examinations. The
Commissioner determined that it was in Child’s best interests for
temporary custody to be granted to Father and appointed a special
master (the Special Master) to monitor and manage the parties’
case. See generally Utah R. Civ. P. 53. A custody evaluator (the
Evaluator) was also engaged to evaluate the parties and make
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recommendations regarding custody in accordance with rule 4‐903
of the Utah Rules of Judicial Administration. See generally Utah R.
Jud. Admin. 4‐903.
¶5 Mother objected to the Commissioner’s recommendations,
and the matter came before the trial court in a four‐day hearing in
November and December 2011. The trial court heard testimony
from, inter alios, Mother, Father, the Evaluator, the Therapist, and
the Special Master. The Evaluator opined, based on his interviews
of all relevant individuals, psychological evaluations of Father and
Mother, and extensive review of myriad collateral materials, that
the question of which parent’s custody would serve Child’s best
interests was “not a ‘close call’” and recommended that Father be
granted sole legal and physical custody of Child. The Therapist and
the Special Master also testified regarding their concerns about
Mother regaining sole custody.1 However, the trial court rejected
the experts’ testimonies and found that “the Commissioner’s
Recommendation and Order was not justified.” (Emphasis
omitted.) The trial court’s Findings and Conclusions explained,
The Court found [Mother]’s testimony sincere and
credible. Her demeanor and all that demeanor
encompasses lead the Court to this conclusion.
Evidence at trial demonstrated that [Mother] desisted
her allegations many months ago. She also indicated
that she will “support the relationship between”
1. The Guardian ad Litem also took the position in the trial court
that “Child’s best interests would be served by granting the
Father’s petition to transfer custody to him.” However, the
Guardian ad Litem has informed this court that “although the
Office of Guardian ad Litem disagrees with the trial court’s
decision,” it would not support Father’s appeal in light of the
discretion granted trial courts in making credibility determinations
and evaluating best interests, and because it does not consider it to
be in the best interests of Child for this dispute to be prolonged.
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[Father] and . . . Child—[Mother]’s support of . . .
Child and [Father]’s relationship is demonstrated by
her past facilitation of parent time with [Father] and
willingness to support such an arrangement in the
future.
The court determined that the experts’ testimonies were either not
credible or not persuasive and refused to employ the experts’
conclusions in its analysis of the best interests factors. Accordingly,
relying primarily on Mother’s testimony, the trial court rejected the
Commissioner’s recommendation and denied Father’s petition to
modify custody.
ISSUE AND STANDARDS OF REVIEW
¶6 Father argues that the trial court abused its discretion by
declining to modify the custody provisions in the divorce decree,
asserting that the factual findings underlying its decision—its
credibility determinations in particular—were unsupported by the
evidence. “The trial court’s decision regarding custody will not be
upset absent a showing of an abuse of discretion or manifest
injustice.” Sukin v. Sukin, 842 P.2d 922, 923 (Utah Ct. App. 1992)
(citation and internal quotation marks omitted). “Findings of fact,
whether based on oral or documentary evidence, shall not be set
aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses.” Utah R. Civ. P. 52(a).
ANALYSIS
I. Evaluation of the Expert Testimony
¶7 Father first challenges the trial court’s determination that the
Therapist and the Evaluator were not credible and that the Special
Master’s testimony was unpersuasive. “[A]lthough the trial court
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[is] not bound to accept” an expert’s recommendation, the court is
expected to articulate “some reason for rejecting the
recommendation.” Tuckey v. Tuckey, 649 P.2d 88, 91 (Utah 1982)
(remanding for additional findings where the trial court rejected,
without explanation, the recommendations of the Department of
Social Services); accord Sukin, 842 P.2d at 925–26 (remanding for
additional findings where the trial court failed to explain its
rejection of a custody evaluator’s recommendation). In this case,
even though the trial court articulated several reasons for rejecting
the experts’ testimonies, Father maintains that those reasons were
unsupported by the evidence and insufficient to undermine the
experts’ credibility. “It is the province of the trier of fact to assess
the credibility of witnesses, and we will not second‐guess the trial
court where there is a reasonable basis to support its findings.”
Reed v. Reed, 806 P.2d 1182, 1184 (Utah 1991). Nevertheless, a finder
of fact “is [not] at liberty, under the guise of passing upon the
credibility of a witness, to disregard his testimony, when from no
reasonable point of view is it open to doubt.” Chesapeake & Ohio Ry.
Co. v. Martin, 283 U.S. 209, 216 (1931). Thus, we may reverse a trial
court’s credibility determination if its findings in support of that
determination are “clearly erroneous,” that is, if they “are against
the clear weight of the evidence, or if the appellate court otherwise
reaches a definite and firm conviction that a mistake has been
made.” State v. Walker, 743 P.2d 191, 193 (Utah 1987); cf. State v.
Krukowski, 2004 UT 94, ¶¶ 23–24, 100 P.3d 1222 (ordering that,
unless the court of appeals could affirm on alternative grounds, the
case should be remanded for the trial court to reconsider a
witness’s credibility where the trial court’s original credibility
determination was premised on its erroneous view that the witness
had failed to comply with a duty to disclose certain information to
the magistrate).
A. Findings Regarding the Therapist’s Credibility
¶8 The Therapist testified that she was concerned about the
effect Mother’s anxiety over Child’s visits with Father might have
on Child and on his relationship with Father. She also expressed
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concern about Mother asking Child “a lot of questions . . . about
being abused.” The Therapist testified that Mother continually
pressured her to ask Child about abuse he may have suffered while
in Father’s custody, and that she had to repeatedly inform Mother
that it was not the Therapist’s role to question Child in that way.
According to the Therapist, on one occasion, immediately after
having been told by the Therapist that Child should not be asked
such questions, Mother began asking Child “specific questions
about what had happened” and the Therapist had to ask her to
return to the waiting room for the remainder of the session.2 The
Therapist testified that this issue had been addressed with Mother
“numerous times,” which she clarified meant approximately “eight
or nine times” over the course of sixteen or seventeen therapy
sessions. The Therapist also testified regarding an August 29, 2010
letter she had written at the parties’ request prior to their hearing
before the Commissioner, in which she stated that “[o]ver the last
two months, [Mother’s] fear appear[ed] to have heightened.” When
cross‐examined about the fact that the Therapist had not had
sessions with Child between June 15 and August 5 of that year, the
Therapist clarified, “[F]rom the time that I had seen [Mother]
before [in June], where things seemed to be getting a little better,
that now I’m seeing her in August and it seemed to be much more
intensified.”
¶9 The trial court found it significant that, despite testifying
that she had reiterated to Mother “eight or nine times” that the
Therapist’s role was not to ask Child direct questions about the
alleged abuse, the Therapist only recorded two or three such
instances in her therapy notes. It further determined that the
Therapist could not have known whether Mother’s anxiety had
“‘heightened’” over “‘the last two months’” at the time she wrote
the letter because she had not seen Mother during most of the two‐
month period referenced. Based on these observations, the trial
2. Mother denied that the Therapist ever asked her to leave the
session, and the trial court resolved this dispute in Mother’s favor.
20120545‐CA 6 2013 UT App 147Woodward v. LaFranca
court determined that the Therapist’s testimony was not credible
and “discount[ed] her testimony.”
¶10 We agree with Father that the trial court has not articulated
a reasonable basis to reject this testimony. Particularly in light of
the Therapist’s testimony that Mother’s heightened fears were
exhibited not by a gradual increase in anxiety, but by a marked
difference between her behavior at the time of the June sessions
and her behavior at the time of the August sessions, we do not
think it reasonable for the trial court to have concluded that the
Therapist was incapable of observing Mother’s heightened fear as
described in her letter. Furthermore, although the inconsistency
between the Therapist’s notes and her testimony regarding the
number of times she reiterated her role to Mother might be
sufficient to support the trial court’s conclusion that the higher
number was inaccurate, it does not definitively demonstrate the
inaccuracy of the Therapist’s assertion. And regardless of whether
the Therapist had this discussion with Mother on three or eight
occasions, the fact that it had to be reiterated multiple times is
consistent with the Therapist’s overall concern about the effect
Mother’s anxiety was having on Child. In any event, we do not
consider this one inconsistency, on its own, to be a reasonable basis
for questioning the Therapist’s overall credibility.3
B. Findings Regarding the Evaluator’s Credibility
¶11 The Evaluator determined Mother to be an intelligent,
capable, and loving parent and explained that Mother had no
“severe psychopathology . . . that would preclude her [from] . . .
3. This is not to say that the trial court could not legitimately
question the Therapist’s claim that she had spoken to Mother about
the role of a therapist on eight or nine separate occasions. However,
we do not consider such an inconsistency to necessarily
compromise the credibility of the Therapist’s entire testimony as
the trial court concluded.
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being the primary custodian.” However, the Evaluator believed
Mother had an unspecified personality disorder characterized by
paranoia and inflexibility, which he believed would be detrimental
to Child, and ultimately concluded that Father was more capable
of promoting Child’s best interests.
¶12 The Evaluator observed that Mother had a tendency to
interpret ordinary developmental b ehaviors and
circumstances—such as Child having bumps and bruises,
experiencing nightmares, and wetting the bed—as indicative of
abuse. One incident that was particularly troubling to the Evaluator
and exemplified Mother’s overinflation of events was that when
Child told his Mother that his five‐year‐old brother (Father’s son)
had urinated on him when they were bathing together, Mother
interpreted the incident as the brother sexually abusing Child and
reported that the brother had ejaculated on Child. The Evaluator
also observed that Mother’s paranoia was evidenced by her belief
that the Guardian ad Litem and the Evaluator “were either asking
trick questions or stumping her on questions” when they
interviewed her and by her frequently asking the police to conduct
welfare checks on Child while he was visiting Father, “without
there being any apparent grounds to do that.”
¶13 The Evaluator was also concerned about the tone of the
communications between Mother and Child during the time Child
was living with Father following the Commissioner’s temporary
custody order. The Evaluator testified that on approximately a
dozen occasions, Mother had informed Child that she was praying
for him and had placed his name on temple prayer rolls, which the
Evaluator interpreted as giving Child the impression that he was
in danger at Father’s home. He also testified that similar ideas were
expressed in postcards Mother sent to Child, identifying one in
particular that read, “Cannot wait until you are safely home with
me,” which the Evaluator believed implied that Child was not safe
where he was.
20120545‐CA 8 2013 UT App 147Woodward v. LaFranca
¶14 The Evaluator testified that his psychological testing of
Mother produced results consistent with what he had observed in
her behavior. In particular, Mother scored in the 99th percentile on
the “cold‐heartedness scale,” which measures “absence of deep
feelings of guilt, empathy and loyalty, as well as a lack of enduring
attachment to others[,] . . . reflect[ing] an absence of tender social
emotions and a callous failure to sympathize with others’
suffering.” The Evaluator opined that having such a personality
would permit Mother to more easily “demonize or mischaracterize
other people who care about [Child]” and may make her more
willing “to subject[ Child] to a physically intrusive and
psychologically intrusive evaluation.” Mother also had elevated
test results relating to depression; “ideas of persecution,” which the
Evaluator defined as “suspiciousness” and “attributing
wrongdoing without the degree of evidence that other people
would consider appropriate to make that attribution”; and “inter‐
personal passivity,” which impacts an individual’s ability to
appropriately deal with conflict.
¶15 The trial court found the Evaluator’s testimony to be not
credible based on its determination that his “testimony was
successfully impeached at trial.” First, the court observed that the
Evaluator was successfully impeached when he “admitted that his
testimony . . . that [Mother] had taken . . . Child to a police
department or DCFS in October 2008 was, in fact, incorrect.”
However, the Evaluator was actually asked not about occasions
when Mother had taken Child to a police department or DCFS, but
about police or DCFS investigations that had occurred. An incident
did in fact occur in October 2008, but it involved Mother taking
Child for a medical examination in relation to an abuse allegation,
which the medical professional indicated would be “refer[red] to
DCFS.” The Evaluator’s reference to this incident was therefore a
reasonable response to the question asked and demonstrates, if
anything, a misunderstanding of the question rather than a
credibility issue.
20120545‐CA 9 2013 UT App 147Woodward v. LaFranca
¶16 The trial court next pointed out that despite testifying that
postcards sent to Child contained religious messages similar to
those expressed in the phone calls, the Evaluator later
acknowledged on cross‐examination that the postcards did not
actually contain religious messages. While this may have weakened
the Evaluator’s testimony regarding the communications, it is not
inconsistent with the thrust of the Evaluator’s testimony, which
was that the postcards and the phone calls were concerning
because regardless of whether the messages discussed prayer in
particular or more generally referred to Child’s safety, they tended
to give Child the impression that he was not safe with Father. In
any event, this minor inconsistency is certainly not sufficient to
compromise the overall credibility of the Evaluator’s report and
testimony.
¶17 The trial court also took issue with the Evaluator’s testimony
that Mother’s frequently changing jobs evidenced her inability to
get along with others. However, the Evaluator’s reference to
Mother’s employment was not the basis for his determination that
she had difficulty getting along with others. Rather, his
recommendation reveals that this determination was supported by
Mother’s history of “short term relationships, conflicts with former
spouses[ and employers], and psychological test results,” as well
as the fact that she had gone through five attorneys in this case and
that her counseling records indicated that she had become
alienated from family members and had conflicts with her church
leaders. The Evaluator acknowledged that “[w]hile none of these
events are singularly dispositive of the hypothesized personality
pattern, taken together, the evidence is compelling.” (Emphasis
added.) Likewise, the Evaluator’s acknowledgment that Mother
might have had some legitimate reasons to be suspicious of
Father—one of the trial court’s other justifications for finding the
Evaluator’s testimony not credible—did not undermine his
conclusion, supported by psychological testing and corroborating
observations, that Mother’s paranoia was largely psychological in
nature and the result of a personality disorder.
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¶18 Finally, the trial court determined that the Evaluator’s report
and testimony were undermined by his heavy reliance on the
findings of the Commissioner, the Special Master, and the
Therapist, which the court determined to be either unpersuasive or
not credible. It is unclear how the trial court reached the conclusion
that the Evaluator had heavily relied on these experts. The
Evaluator testified that he considered it his duty “to do [his] own
evaluation” rather than “mimic what the Commissioner said” and
that the other sources were more of “a springboard to get
information.” Indeed, the Evaluator “consulted a great deal of
collateral material in reaching [his] opinion,” and he testified that
this case was “probably in the upper ten percent, easy, for the
amount of materials that [he had] gone through.” Thus, there does
not appear to be a reasonable basis for the trial court’s
determination that the Evaluator’s opinion “relied heavily” on the
opinions of the other experts.
¶19 Essentially, the trial court emphasized minor inconsistencies
from the Evaluator’s two‐day testimony—most of which were
irrelevant or not actually inconsistent—to support a determination
that the Evaluator’s entire evaluation and professional conclusions
were not credible. While it is the prerogative of the trial court to
weigh the evidence and judge credibility, and while the trial court
is not bound by the conclusions of a custody evaluator, we
determine that the trial court exceeded its discretion by rejecting
the Evaluator’s entire testimony under the facts and circumstances
of this case.4
4. Our opinion should not be interpreted as undercutting the trial
court’s ability to make legitimate credibility determinations or a
proclamation that every word spoken by the Evaluator was
inherently credible. Rather, we hold only that the trial court’s
decision to disregard the Evaluator’s entire testimony and
evaluation based upon a handful of rather minor inconsistencies
was erroneous. On remand, in reevaluating the best interests
(continued...)
20120545‐CA 11 2013 UT App 147Woodward v. LaFranca
C. Weighing of the Special Master’s Testimony5
¶20 Like the Evaluator, the Special Master testified regarding the
communications between Mother and Child while Child was living
with Father. She too expressed concern that Mother was overly
fearful for Child and was projecting her fears onto Child with
statements about praying for his safety. She also testified regarding
Mother’s unwillingness to comply with orders of the Special
Master by talking to Child about the court case, not letting Child
end the phone calls when he wanted to, undermining Father’s
disciplinary decisions, and harassing Father with unreasonable
numbers of phone calls to Child.6 Although the trial court did not
take issue with the Special Master’s credibility, finding her
testimony to be “professional and dignified,” it ultimately
concluded that her testimony was “not persuasive” and not
“sufficient to justify a change in the custody arrangement.”
Essentially, the trial court did not interpret the tenor of the phone
4. (...continued)
factors, the trial court is free to reject specific opinions or
recommendations of the Evaluator, where it can articulate a
reasonable basis for doing so, and to weigh the Evaluator’s
recommendations in the context of all the other evidence before the
court.
5. Although both the Special Master and her assistant testified,
their testimony covered essentially the same subject matter.
Therefore, while our analysis applies equally to the court’s
evaluation of the assistant’s testimony, we discuss only the trial
court’s evaluation of the Special Master’s testimony for simplicity.
6. The trial court’s decision does not refer to this testimony
regarding Mother’s noncompliance with the orders of the Special
Master, but it seems to us that this testimony may have been
unduly disregarded in the trial court’s evaluation of Mother’s
willingness to facilitate visitation between Father and Child. See
infra ¶¶ 31–33.
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calls the way the Special Master and the Evaluator did and did not
consider the calls to demonstrate inappropriate or overly fearful
behavior on Mother’s part. We do not think the trial court exceeded
its discretion by interpreting the phone calls differently from the
Special Master and considering them accordingly. However, we are
concerned with the fact that the court dismissed the Special
Master’s concerns as a threshold matter without evaluating those
concerns in the context of the best interests factors. While the
content of the phone calls alone may not have been sufficient to
justify a change in custody, it was relevant, in conjunction with the
other evidence presented in this case, to the court’s overall best
interests determination and should have been analyzed
accordingly.
II. Best Interests
¶21 Father next contends that the trial court abused its discretion
in determining that it was in Child’s best interests for Mother to be
awarded custody because its analysis of the best interests factors
focused on whether “Mother is an acceptable parent” rather than
whether “Mother is more acceptable than Father, in light of all the
facts and circumstances of the case.” We agree.
¶22 “[T]he best interests of the child must be a primary focus
when analyzing a request for a permanent change of custody in an
unlitigated decree.” Taylor v. Elison, 2011 UT App 272, ¶ 10, 263
P.3d 448; see also Elmer v. Elmer, 776 P.2d 599, 603–04 (Utah 1989)
(identifying “the overall best interests of the child” as the “ultimate
objective” of the trial court in considering a petition to modify
custody). A child’s best interests must be determined “by a
preponderance of the evidence,” see Utah Code Ann. § 30‐3‐10.2(3)
(LexisNexis 2007), based on a number of factors that compare “the
parenting skills, character, and abilities of both parents in light of
a realistic and objective appraisal of the needs of a child,” Elmer,
776 P.2d at 603. See generally Utah Code Ann. § 30‐3‐10(1)(a)
(LexisNexis Supp. 2012); id. § 30‐3‐10.2(2) (2007); Utah R. Jud.
Admin. 4‐903.
20120545‐CA 13 2013 UT App 147Woodward v. LaFranca
¶23 The best interests determination affords no special
presumption in favor of the status quo except to the extent that “a
child’s interest in the stability of his or her present environment”
may be considered as “one of numerous factors” impacting the
child’s best interests. Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982); see
also Utah Code Ann. § 30‐3‐10.4(2)(c) (LexisNexis Supp. 2012)
(directing courts to “give substantial weight to the existing . . .
custody order when the child is thriving, happy, and well‐
adjusted”). Accordingly, a change in custody based on best
interests does not require a determination that the custodial parent
has been somehow derelict, but only that, weighing all of the
circumstances, a change in custody will be “better” for the child.7
Hogge, 649 P.2d at 55.
¶24 The Evaluator found the majority of the custody factors to
weigh in favor of Father. He opined that the facts compellingly
demonstrated that it was in Child’s best interests that Father be
granted sole physical and legal custody, stating, “[T]his
recommendation is not a ‘close call.’” Nevertheless, the trial court
disagreed with the Evaluator and found that the majority of the
factors weighed in Mother’s favor. Its analysis of the best interests
factors, on the whole, focused much more on Mother’s ability as a
parent than it did on the relative abilities of Mother and Father or
on Child’s needs. Furthermore, the trial court’s disregard of the
Evaluator’s conclusions regarding these factors is explained only
by its general assertion that the Evaluator’s entire testimony was
not credible, which we have determined to be erroneous. See supra
¶ 19 & note 4. On appeal, Father specifically challenges the trial
court’s assessment of factors relating to the parents’ abusive
behavior, the parents’ emotional stability, Child’s bond with his
7. This is tempered by the threshold material change of
circumstances requirement, which prevents “‘ping‐pong’ custody
awards” once custody has been adjudicated. Taylor v. Elison, 2011
UT App 272, ¶ 13, 263 P.3d 448.
20120545‐CA 14 2013 UT App 147Woodward v. LaFranca
brother, the parents’ bond with Child, and the parents’ willingness
to facilitate Child’s relationship with the other parent.
A. Evidence of Abuse
¶25 The Commissioner found that Mother had abused Child by
making multiple unfounded abuse allegations to the police and
DCFS and by subjecting Child to unnecessary interviews and
forensic examinations, and the Evaluator opined that “additional
records . . . provide support for [the Commissioner’s] finding.”
After examining the various abuse reports Mother made and the
incidents where Child had been interviewed or examined, the trial
court disagreed with the Commissioner’s conclusions. On the
whole, the trial court found that each report was a reasonable
response either to something Child had told Mother or to physical
evidence indicating abuse and that she was, in fact, legally
obligated to report Child’s disclosures of potential sexual abuse. It
further found that the interviews and examinations were made in
response to the recommendations of law enforcement and other
professionals. Accordingly, the trial court determined that the
preponderance of the evidence did not demonstrate that Mother’s
many unsubstantiated reports rose to the level of severe abuse.8 Cf.
Peterson v. Peterson, 818 P.2d 1305, 1308–09 (Utah Ct. App. 1991)
(holding that coaching a child to falsely allege abuse may justify a
change in custody). Although the evidence could certainly support
the opposite conclusion, we do not think the trial court’s findings
relating to this factor were clearly erroneous.9
8. The trial court specifically found that Mother’s actions did not
amount to “severe abuse.” It is unclear from this statement whether
the trial court meant that Mother’s actions did constitute abuse, but
just not severe abuse, or whether it actually intended to find that
Mother had not abused Child at all.
9. We do question the trial court’s conclusion that “[t]his factor
does not weigh in favor of [Father].” It is unclear whether the trial
(continued...)
20120545‐CA 15 2013 UT App 147Woodward v. LaFranca
B. Emotional Stability
¶26 The Evaluator found that Father was emotionally stable and
on a positive trajectory in his life, whereas Mother battled
depression and a personality disorder characterized by paranoia
and difficulty maintaining personal relationships. The Therapist
and the Special Master echoed the Evaluator’s concern that
Mother’s paranoia had the potential to negatively impact Child.
¶27 The trial court found that Mother was emotionally stable as
demonstrated by her abilities as a teacher, one longstanding
friendship, and her efforts to provide Child with a steady daycare
provider. The trial court made no findings regarding Father’s
emotional stability. Nevertheless, based solely on its determination
that Mother was emotionally stable, it concluded that this factor
“weigh[ed] heavily in favor of [Mother].”
¶28 As discussed, supra ¶¶ 22–24, the best interests factors
examine the comparative abilities of the parents. Accordingly, the
question for the court was not whether Mother was emotionally
stable, but whether Mother was more emotionally stable than
Father. Thus, we are unable to see how the trial court could have
reached the conclusion that the emotional stability factor weighed
in Mother’s favor without making any findings regarding Father’s
emotional stability. We are also concerned, in light of our
discussion of the experts’ credibility, see supra ¶¶ 8–20, with the
9. (...continued)
court meant by this that the abuse factor weighed against Father or
that it did not weigh in favor of either party. The trial court made
no findings and there was no evidence suggesting that Father had
abused Child. Thus, at most, the trial court could have found that
this factor did not preponderate in favor of either party. However,
if the court believed Mother had abused Child, just not severely, see
supra note 8, then this factor would actually preponderate in favor
of Father. In considering the totality of the factors on remand, the
trial court should weigh this factor accordingly.
20120545‐CA 16 2013 UT App 147Woodward v. LaFranca
trial court’s complete disregard of the Evaluator’s clinical findings
regarding Mother’s depression and personality disorder, as well as
its failure to take into account the Therapist’s and the Special
Master’s testimonies in analyzing this factor.
C. Child’s Bond with His Brother
¶29 Father next asserts that the trial court failed to afford Child’s
bond with his brother appropriate weight. The trial court
determined that this relationship did “not carry significant weight
with the court” because Child had only lived with his brother for
approximately fifteen months during the temporary period when
Father was granted custody by the Commissioner’s order.
Although it is the trial court’s prerogative to weigh the best
interests factors, it is not clear why the amount of time Child lived
with his brother is determinative of their bond—and even if it
were, fifteen months in the life of a five‐year‐old child is a
significant period of time. The Evaluator opined that Child was
strongly bonded to his brother and that his brother was a positive
influence on him. His report also discussed clinical evidence
regarding the importance of the bond between siblings,
particularly those who are close in age. The trial court did not
explain its reasons for rejecting the Evaluator’s opinion on this
matter.
D. Child’s Bond with His Parents
¶30 The trial court determined that Child was more bonded to
Mother than to Father because he had been raised primarily by
Mother during the early years of his life. However, as with the
strength of Child’s bond with his brother, we fail to see how
Child’s relative bond with each of his parents necessarily stems
only from the amount of time he has spent with them. The
Evaluator determined that Child “demonstrates strong bonds with
all parenting figures” and found this factor to favor neither parent.
Once again, the trial court failed to explain its reason for rejecting
the Evaluator’s opinion.
20120545‐CA 17 2013 UT App 147Woodward v. LaFranca
E. Interference with Visitation
¶31 The trial court did not consider the parents’ relative
willingness to facilitate contact and a positive relationship between
the child and the other parent, despite it being a significant best
interests factor identified by the Utah Code. See Utah Code Ann.
§ 30‐3‐10(1)(a)(ii) (LexisNexis Supp. 2012); id. § 30‐3‐10.2(2)(c)
(2007). The court did consider the evidence of Mother’s interference
with visitation but did so in the context of a material change in
circumstances analysis. See generally Hudema v. Carpenter, 1999 UT
App 290, ¶ 22, 989 P.2d 491 (outlining the two‐part inquiry trial
courts engage in when considering a petition to modify custody).
In that context, a parent’s serious interference with visitation may
constitute a material change of circumstances that would permit
the court to engage in a best interests analysis and potentially
modify the decree. See Sigg v. Sigg, 905 P.2d 908, 913–15 (Utah Ct.
App. 1995).
¶32 However, when the trial court considers a petition to modify
an unadjudicated divorce decree, like the one in this case, it is
unnecessary for the trial court to make a threshold determination
of material change in circumstances. Elmer v. Elmer, 776 P.2d 599,
603–04 (Utah 1989). The trial court acknowledged this in its order,
yet it elected to analyze Mother’s alleged interference with Father’s
visitation as though it were considering the existence of a material
change in circumstances, ultimately determining that the “issues
and disputes about visitation” in this case did “not rise in any
regard to the standard” for finding a material change in
circumstances. Because the court was considering a petition to
modify an unadjudicated divorce decree and acknowledged that
it was not required to find a material change in circumstances, the
court’s conclusion that Mother’s interference was not a material
change in circumstances is irrelevant.10 However, to the extent this
10. It is unclear to what extent the trial court’s determination that
(continued...)
20120545‐CA 18 2013 UT App 147Woodward v. LaFranca
conclusion may have informed the trial court’s ultimate best
interests determination, we consider the court’s conclusion to be
erroneous because it placed an undue burden on Father to
demonstrate Mother’s severe interference with visitation rather
than weighing the parents’ relative ability to facilitate visitation.
¶33 Interference with visitation, in the context of a best interests
analysis, may be relevant regardless of whether such interference
is severe enough to demonstrate a material change in
circumstances. In weighing best interests, the trial court is directed
to consider “which parent is most likely to act in the best interest of
the child, including allowing the child frequent and continuing
contact with the noncustodial parent,” Utah Code Ann. § 30‐3‐
10(1)(a)(ii) (emphasis added), and each parent’s ability to
“encourag[e] and accept[] a positive relationship between the child
and the other parent, including the sharing of love, affection, and
contact between the child and the other parent,” id. § 30‐3‐10.2(2)(c)
(2007); see also id. § 30‐3‐10(1)(a)(iv) (Supp. 2012). Thus, unlike the
material change in circumstances analysis, which places the burden
on the petitioning parent to demonstrate severe interference, the
best interests analysis puts both parents on an equal footing before
weighing their relative willingness and ability to facilitate
visitation. In order to determine that this factor weighs in favor of
10. (...continued)
Father “failed to prove by a preponderance of the evidence that a
‘substantial and material’ change of circumstances between
[M]other and [C]hild has occurred” affected its ultimate decision
to deny Father’s petition to modify. However, given that Father
had no burden to show a material change of circumstances when
petitioning to modify the custody provisions of an unajudicated
divorce decree, see Elmer v. Elmer, 776 P.2d 599, 603–04 (Utah 1989),
the trial court’s determination that a material change of
circumstances had not occurred should not have had any impact
on its ultimate ruling on the petition to modify, except to the extent
that factual findings relevant to a material change of circumstances
analysis were also relevant to the best interests analysis.
20120545‐CA 19 2013 UT App 147Woodward v. LaFranca
granting custody to one parent under a best interests analysis, the
trial court need only determine that the parent is at least marginally
more likely to encourage and support the other parent’s
relationship with the child. The court does not appear to have
considered facilitation of visitation in the best interests context,
despite having been presented with significant evidence relating to
this factor. Instead, it dismissed Father’s argument that he was
more likely to facilitate visitation solely on its determination that
Father failed to show severe interference by Mother of the degree
necessary to show a material change in circumstances.
CONCLUSION
¶34 To the extent that the trial court’s determinations regarding
the best interests factors were premised on its erroneous
determinations regarding the experts’ credibility, they should be
reexamined on remand to take into account evidence that was
discounted on that basis. Furthermore, the persuasiveness of the
experts’ testimonies should not be considered in isolation, but in
the context of the other experts’ observations and opinions, as well
as any other evidence bearing on the best interests factors. Finally,
in weighing the best interests factors, the trial court must consider
the parties’ relative strengths so as to base its best interests
determination not on Mother’s ability as a parent, but on the
parties’ relative ability to serve the best interests of the Child. In
analyzing the evidence relating to each of these factors, the trial
court should specifically explain its reasons for rejecting relevant
expert testimony regarding those factors.11 Accordingly, we reverse
11. In analyzing the issues in this case, we acknowledge that the
standard of review afforded to a trial court’s factual and credibility
determinations is highly deferential. With this standard in mind,
we have taken great care in this opinion not to substitute our
judgment for that of the trial court by reweighing the evidence. See
In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. Accordingly, we have
(continued...)
20120545‐CA 20 2013 UT App 147Woodward v. LaFranca
and remand for additional proceedings consistent with this
opinion.
11. (...continued)
rejected the trial court’s determinations only where they are
unsupported by the evidence or by sufficient findings. To the
extent that we take issue with the trial court’s weighing of expert
testimony, it is primarily the trial court’s failure to adequately
explain its rejection of the testimony, rather than the rejection of
that testimony itself, that we find erroneous. So long as the trial
court can articulate a reasonable basis for rejecting specific expert
testimony, the ultimate weight afforded to that testimony is within
the trial court’s discretion.
20120545‐CA 21 2013 UT App 147