Risher v. Emerson ( 2017 )


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    2017 UT App 216
    THE UTAH COURT OF APPEALS
    MICHAEL W. RISHER III,
    Appellant,
    v.
    AMY M. EMERSON,
    Appellee.
    Opinion
    No. 20160389-CA
    Filed November 24, 2017
    Third District Court, Tooele Department
    The Honorable Robert W. Adkins
    No. 154300059
    Eric M. Stott and T. Jake Hinkins, Attorneys
    for Appellant
    Russell W. Hartvigsen and Edwin S. Jang, Attorneys
    for Appellee
    JUDGE DAVID N. MORTENSEN authored this Opinion, in which
    JUDGES MICHELE M. CHRISTIANSEN and DIANA HAGEN concurred.
    MORTENSEN, Judge:
    ¶1     Michael W. Risher III and Amy M. Emerson are the
    natural parents of Child. To legally establish his rights as the
    father of Child, Risher filed a petition for parentage. That
    petition was litigated before the trial court. The court reached a
    number of conclusions at trial and subsequently entered an
    order of parentage, which included determinations as to parent
    time, child support, surrogate care, decisional authority, and
    attorney fees. Because the trial court made virtually no factual
    findings whatsoever and provided no reasoning for its
    conclusions, we reverse.
    Risher v. Emerson
    ¶2      Child was born in December 2013. Never married to each
    other, Risher and Emerson informally set up a schedule for
    visitation, arranged child support, and addressed a number of
    other issues. Nevertheless, contentions arose and in February
    2015, Risher filed a petition for parentage. Litigation followed,
    and the parties were ultimately able to reach a stipulation on
    many issues. Custody and visitation issues remained unresolved
    and a one-day trial was held in March 2016. At the conclusion of
    the trial, the court indicated what it intended to order and asked
    Emerson’s counsel to submit proposed findings of fact and
    conclusions of law, along with a proposed decree. Upon entry of
    the findings, conclusions, and order of parentage, this appeal
    followed.
    ¶3     Determinations of custody and visitation are typically
    reviewed under an abuse of discretion standard. Grindstaff v.
    Grindstaff, 
    2010 UT App 261
    , ¶ 3, 
    241 P.3d 365
    . We “will affirm
    the trial court’s custody award so long as the trial court’s
    discretion is exercised within the confines of the legal standards
    we have set, and the facts and reasons for the decision are set
    forth fully in appropriate findings and conclusions.” 
    Id.
     (citation
    and internal quotation marks omitted).
    ¶4     “Adequate findings of fact enable meaningful appellate
    review because an appellate court can understand the trial
    court’s reasoning and assess its compliance with governing law.”
    Keyes v. Keyes, 
    2015 UT App 114
    , ¶ 29, 
    351 P.3d 90
     (citation and
    internal quotation marks omitted). “Findings are adequate only
    if they are sufficiently detailed and include enough subsidiary
    facts to disclose the steps by which” the trial court reached its
    conclusion on each factual issue. See Taft v. Taft, 
    2016 UT App 135
    , ¶ 14, 
    379 P.3d 890
     (citation and internal quotation marks
    omitted). 1
    1. Myriad cases from this court have required sufficient factual
    findings for effective appellate review. See, e.g., Oldroyd v.
    (continued…)
    20160389-CA                     2               
    2017 UT App 216
    Risher v. Emerson
    ¶5     On appeal, Risher challenges the trial court’s decision to
    award sole physical custody to Emerson. Specifically, Risher
    argues that the custody award was not in Child’s best interests.
    Risher further challenges the trial court’s determination that
    Emerson should be given final say on matters upon which the
    parties cannot agree. Further, Risher notes that the trial court
    ordered a visitation schedule that constituted a reduction in
    parent time compared to the visitation schedule that the parties
    followed under pretrial temporary orders. Risher also challenges
    the trial court’s determination that only twelve times per year,
    upon seven-days’ notice, could Risher exercise a right of first
    refusal and provide care for Child when Emerson was working.
    Risher also raises additional issues. As to all issues, Risher
    maintains that the trial court made no findings and provided no
    reasoning for its conclusions.
    ¶6     Our review of the findings of fact, conclusions of law, and
    the order of parentage shows this assertion to be correct. While it
    is true that the trial court signed a document captioned
    “Findings of Fact and Conclusions of Law,” that document
    (…continued)
    Oldroyd, 
    2017 UT App 45
    , ¶¶ 8, 11, 
    397 P.3d 645
    ; Roberts v.
    Roberts, 
    2014 UT App 211
    , ¶ 14, 
    335 P.3d 378
    ; Rayner v. Rayner,
    
    2013 UT App 269
    , ¶ 4, 
    316 P.3d 455
    ; Hall v. Hall, 
    858 P.2d 1018
    ,
    1021 (Utah Ct. App. 1993); Sukin v. Sukin, 
    842 P.2d 922
    , 923–24
    (Utah Ct. App. 1992); Allred v. Allred, 
    797 P.2d 1108
    , 1111 (Utah
    Ct. App. 1990); Stevens v. Stevens, 
    754 P.2d 952
    , 958 (Utah Ct.
    App. 1988). While this court appreciates that findings of fact and
    conclusions of law are often prepared by counsel, this does not
    dispense with a trial court’s obligation to ensure that sufficient
    facts support a conclusion. See Boyer Co. v. Lignell, 
    567 P.2d 1112
    ,
    1113 (Utah 1977) (recommending that trial judges not
    “mechanically adopt” findings prepared by a prevailing party).
    Once signed, findings, conclusions, and orders prepared by
    counsel become the statements of the court.
    20160389-CA                     3                
    2017 UT App 216
    Risher v. Emerson
    contains no findings whatsoever. The document also fails to
    contain any reasoning for the court’s conclusions.
    ¶7     In Allen v. Allen, 
    2014 UT App 27
    , 
    319 P.3d 770
    , this court
    explained,
    Child custody determinations are “highly personal
    and individual, and do not lend themselves to the
    means of generalization employed in other areas of
    the law.” Roberts v. Roberts, 
    835 P.2d 193
    , 196 (Utah
    Ct. App. 1992). As a result, “[u]nlike support and
    alimony determinations, . . . there is no checklist of
    custody factors,” 
    id.,
     that “can govern custody
    determinations in all cases,” Smith v. Smith, 
    726 P.2d 423
    , 426 (Utah 1986). But “the factors relied on
    by the trial judge in awarding custody must be
    articulable and articulated in the judge’s written
    findings and conclusions.” 
    Id.
     Utah Code sections
    30-3-10 and 30-3-10.2 list a number of factors courts
    consider when making a child custody award,
    including “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) (LexisNexis 2013), “the extent of
    bonding between the parent and child, meaning
    the depth, quality, and nature of the relationship
    between parent and child,” id. § 30-3-10(1)(a)(iii),
    and “any other factors the court finds relevant,” id.
    § 30-3-10.2(2)(j).
    Allen, 
    2014 UT App 27
    , ¶ 8 (alteration and omission in original)
    (footnote omitted).
    ¶8     It is impossible, given the record, to determine the basis
    upon which the trial court ruled or whether the trial court
    considered any of the factors governing an award of custody. No
    facts or conclusions are articulated. We are likewise unable to
    20160389-CA                     4               
    2017 UT App 216
    Risher v. Emerson
    conclude whether the trial court’s determinations as to visitation
    were made within the trial court’s discretion because the trial
    court failed to make factual findings or provide any reasoning
    on this issue as well. 2 Under such circumstances, we have no
    choice but to reverse the order and remand this matter to the
    trial court for the entry of adequate findings and analysis. See
    Taft, 
    2016 UT App 135
    , ¶¶ 29–30.
    ¶9    Reversed and remanded.
    2. We have reviewed the other issues of claimed error and
    conclude that they are so intertwined with the custody
    determination that any review of those issues should await the
    findings and conclusions that will be forthcoming on remand.
    20160389-CA                     5              
    2017 UT App 216
                                

Document Info

Docket Number: 20160389-CA

Judges: Mortensen, Christiansen, Hagen

Filed Date: 11/24/2017

Precedential Status: Precedential

Modified Date: 10/19/2024