Blocker v. Blocker ( 2019 )

2019 UT App 82THE UTAH COURT OF APPEALS
KIRSTEEN DIDI BLOCKER,
Appellee,
v.
MICHAEL PHILLIP BLOCKER,
Appellant.
Opinion
No. 20170167-CA
Filed May 16, 2019
Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 024402553
Michael Phillip Blocker, Appellant Pro Se
Grant W. P. Morrison, Matthew G. Morrison, and
Justin T. Morrison, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY
concurred.
MORTENSEN, Judge:
¶1 We previously considered this case in Blocker v. Blocker
(Blocker I), 2017 UT App 10, 391 P.3d 1051, and remanded it to
the district court to enter findings of fact to support its ruling
granting Kirsteen Didi Blocker (Mother) unsupervised
parent-time with her now sixteen-and-a-half year old son
(Child). Michael Phillip Blocker (Father) appeals the district
court’s post-remand judgment. We affirm.
Blocker v. Blocker
BACKGROUND 1
¶2 Mother and Father were married in 1997, separated just
weeks after Child’s birth in 2002, and divorced in 2004. Mother
and Father were awarded joint custody, with Child’s primary
physical care and residence being with Mother. In response to
Father’s petition to modify custody and concerned about the
detrimental impact of Mother’s behavior on Child, the district
court granted sole legal and physical custody to Father in 2010
(2010 Order). The district court ordered that Mother’s parent-
time be supervised until she “changed her mind set with regard
to her own parenting abilities and Father’s relationship with the
child.” Blocker I, 2017 UT App 10, ¶ 4, 391 P.3d 1051 (cleaned up).
But concerned that supervised parent-time would be impractical
for financial reasons, the court permitted Mother to have
unsupervised parent-time provided that she retain a special
master and participate in individual therapy by herself and joint
therapy with Child. Id. Until she verified compliance with these
conditions, Mother’s parent-time remained supervised. Id.
¶3 In 2014, in response to Mother’s motion to modify the
2010 Order and based on a home study report, the district
court temporarily granted Mother unsupervised parent-time.
Id. ¶¶ 5–6. Nearly one year later, having received no other
evidence or testimony, the court decided to make Mother’s
unsupervised parent-time permanent without entering any
findings of fact. Id. ¶ 7.
¶4 Father appealed, and we determined that the court
had made its order granting unsupervised parent-time to
Mother “permanent without explaining the basis for its
decision.” Id. ¶ 16. Because the court modified the parent-time
requirements without providing any findings, we concluded
1. The facts of this case are set out in further detail in the original
appeal. See Blocker I, 2017 UT App 10, ¶¶ 2–7, 391 P.3d 1051.
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that we were unable to review its decision and remanded for
more detailed findings. Id. ¶ 21.
¶5 Regarding the changed circumstances, on remand the
district court made the following findings of fact: (1) Mother had
continued professional therapy; (2) Mother and Mother’s father
were maintaining a relationship with Child by going to Father’s
house and being allowed to spend time with Child in their car, at
the curbside, for about one hour, two to three times a week;
(3) Father’s brother (Uncle) supervised visits between Mother
and Child during the Thanksgiving and Christmas holidays
without problems being noted; (4) Child was allowed to sit and
visit with Mother and her family during a church Christmas
program without incident; (5) Mother was allowed to speak by
phone with Child two to three times per week; (6) Child was
older when the district court modified parent-time; and (7) Child
had received substantial therapy at the time the district court
modified parent-time. The court also identified three
circumstances that rendered the 2010 Order unenforceable:
(1) the parties were unable to afford the cost of supervised
exchanges, supervised visitation, or the services of a special
master; (2) the therapist identified in the 2010 Order to oversee
therapy of Mother and Child was no longer available; and (3) the
agency assigned to supervise Mother’s parent-time in the 2010
Order was no longer in business in Mother’s geographical area.
¶6 Regarding Child’s best interest, the district court on
remand noted that both parties “wished to reasonably
accommodate a relationship between [Child] and [Mother].” The
court explained that “curbside parent time . . . was not in the
best interest of [Child]. He needed a more reasonable and less
artificial opportunity to know his [Mother] and her family.”
¶7 The district court further described the process by which
it granted Mother unsupervised parent-time. Because parent-
time supervised by Uncle had been “successful and without
incident,” the court concluded that Mother should be allowed to
exercise unsupervised parent-time on a temporary basis. At the
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time the district court modified parent-time, Mother had been
exercising unsupervised parent-time for nearly one year without
any reported incidents. Although Father speculated that Mother
was engaging in “parental alienation” during her parent-time,
the court noted that Father offered no evidence to support this
contention. The court concluded by pointing out, “[Child] was 6
years older and in spite of the curbside restrictions and other
difficulties over the years, he and [Mother] had developed and
continued to maintain a positive parent/child relationship.” And
with regard to Mother, the court noted that she had
“demonstrated an ability through the evaluation and her
practice over several months to maintain a reasonable
relationship with [Child].” 2 Thus, the court concluded that it was
appropriate to “reconcile the now unenforceable 2010 Order and
the current state of affairs” by allowing unsupervised
parent-time as the means to “most effectively foster a continuing
relationship” between Child and Mother. Father appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 The first issue on appeal is whether the district court
erred when it determined that the unenforceability of the
conditions for Mother to have unsupervised parent-time with
Child constituted a material change in circumstances to support
a modification of the parent-time arrangements in the 2010
Order. The second issue is whether the district court erred by not
conducting a best interest analysis when it modified the parent-
time conditions of the 2010 Order. Both issues share the same
standard of review. “We review a district court’s decisions
regarding parent-time for an abuse of discretion.” Jones v. Jones,
2016 UT App 94, ¶ 8, 374 P.3d 45. “The district court’s proximity
2. The district court had ordered and received a home study to
determine if Mother was competent to have unsupervised
parent-time with Child.
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to the evidence places it in a better position than an appellate
court to choose the best custody arrangement. Thus, we
generally will not disturb the district court’s parent-time
determination absent a showing that the district court has
abused its discretion.” Stephens v. Stephens, 2018 UT App 196,
¶ 34, 437 P.3d 445 (cleaned up).
ANALYSIS
I. The Preclusion of Previously Disposed Arguments
¶9 With regard to the first issue, we note that the scope of
our review of the district court’s post-remand ruling is limited
by the mandate rule. “The mandate rule, a subset of the law of
the case doctrine, binds both the district court and the parties to
honor the mandate of the appellate court. Under this rule, the
decisions of an appellate court become the law of the case and
cannot be reconsidered on remand.” State v. Oliver, 2018 UT App
101, ¶ 29 n.8, 427 P.3d 495 (cleaned up); see also Thurston v. Box
Elder County, 892 P.2d 1034, 1037 (Utah 1995) (“[T]he mandate
rule[] dictates that pronouncements of an appellate court on
legal issues in a case become the law of the case and must be
followed in subsequent proceedings of that case.”). Furthermore,
when this court disposes of an argument as inadequately
briefed, “the law of the case doctrine precludes us from
addressing this argument anew.” See NPEC LLC v. Miller, 2018
UT App 85, ¶ 9, 427 P.3d 357 (per curiam) (cleaned up).
¶10 Under the mandate rule, Father cannot re-litigate on
remand issues we previously determined were inadequately
briefed. But this is exactly what he does now. In this post-
remand appeal, Father reintroduces a previously disposed issue
by presenting two arguments in support of it.
¶11 First, he argues, “The district court abused its discretion
when it used Mother’s inability to comply with the conditions
[for unsupervised parent-time] in the initial Parent Time Order
20170167-CA 5 2019 UT App 82Blocker v. Blocker
as a change in circumstances to justify modification of [Mother’s]
parent time because those circumstances were not those upon
which the earlier decision was based.” Next, Father argues,
“[T]he district court abused its discretion in finding that
[Mother’s] unwillingness to comply with a standing court order
provided the basis for a change in circumstances sufficient to
modify parent time as such rewards a noncompliant parent and
incentivizes her to continue her noncompliant behavior.”
¶12 Similarly, in his previous appeal, Father argued, “The
[district] court erred when it decided that [Mother’s] inability to
comply with conditions for her unsupervised parent time
constituted a material change in circumstances upon which to
base a modification of a custody award.” 3 A panel of this court
declined to address this issue because it was inadequately
briefed. Blocker I, 2017 UT App 10, ¶ 18, 391 P.3d 1051.
¶13 Thus, in this post-remand appeal, Father raises essentially
the same issue—namely, that the district court erred in
concluding the unenforceability of the original parent-time
conditions constituted a material change in circumstances—that
he raised in his original appeal. But we have already declined to
address this very issue in Father’s original appeal due to
inadequate briefing. “In effect, [Father] now attempts to
supplement the briefing submitted in his earlier appeal. The
mandate rule bars such attempts.” See State v. MacNeill, 2016 UT
App 177, ¶ 39, 380 P.3d 60. Therefore, we decline to reconsider
this issue in Father’s post-remand appeal.
3. The order of the district court giving rise to the original appeal
was entitled “Order Modifying Custody.” In fact, that order
modified only parent-time and did not disturb the underlying
custody arrangement. Father repeated this error when, in the
original appeal, he imprecisely referred to a “modification of
custody” when he was actually arguing that the court erred in
modifying parent-time.
20170167-CA 6 2019 UT App 82Blocker v. Blocker
II. The Post-remand Judgment
¶14 The scope of the remand directed the district court to
enter findings of fact showing that there had been a material
change in circumstances necessary to support a change in the
parent-time provisions. See Blocker I, 2017 UT App 10, ¶ 21, 391
P.3d 1051.
¶15 Modification of parent-time involves two separate steps.
“First, the court must find that the petitioner has made some
showing of change in circumstances that would support a
modification of parent-time.” Stephens v. Stephens, 2018 UT App
196, ¶ 33, 437 P.3d 445 (cleaned up). “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.” Id. (cleaned up); see also Becker
v. Becker, 694 P.2d 608, 611 (Utah 1984) (“[A] modification of
visitation rights also requires a bifurcated procedure.”); Hogge v.
Hogge, 649 P.2d 51, 54 (Utah 1982) (“A . . . two-step procedure
should be followed where the petition to modify a custody
decree requests a material change in visitation rights.”).
¶16 In the context of modifying parent-time, a material
change of circumstances is a “different inquiry” from a material
change regarding custody. Erickson v. Erickson, 2018 UT App 184,
¶ 16, 437 P.3d 370 (cleaned up). “When modifying parent-time,
the petitioner is required to make only some showing of a change
in circumstances, which does not rise to the same level as the
substantial and material showing required when a district court
alters custody.” Id. (cleaned up). Furthermore, in determining
parent-time, “the [district] court gives highest priority to the
welfare of the children over the desires of either parent. Such
determinations are within the [district] court’s sound
discretion.” Childs v. Childs, 967 P.2d 942, 946 n.2 (Utah Ct. App.
1998) (cleaned up).
20170167-CA 7 2019 UT App 82Blocker v. Blocker
¶17 Finally, “[t]he [district] court’s findings on remand must
be sufficiently detailed and include enough subsidiary facts to
disclose the steps by which the ultimate conclusion on [each]
factual issue was reached.” Jensen v. Jensen, 2000 UT App 213U,
para. 8 (cleaned up); accord Lay v. Lay, 2018 UT App 137, ¶ 19,
427 P.3d 1221; Shuman v. Shuman, 2017 UT App 192, ¶ 5, 406 P.3d
258. “Put another way, findings are adequate when they contain
sufficient detail to permit appellate review to ensure that the
district court’s discretionary determination was rationally
based.” Lay, 2018 UT App 137, ¶ 19 (cleaned up). “This
obligation facilitates meaningful appellate review and ensures
the parties are informed of the [district] court’s reasoning.”
Shuman, 2017 UT App 192, ¶ 5. Furthermore, the Utah Code
requires the court to “enter the reasons underlying its order for
parent-time.” Utah Code Ann. § 30-3-34(3) (LexisNexis Supp.
2018). 4
¶18 Thus, on remand, the district court in this case had two
tasks. First, it was to enter findings of fact to support its ruling
modifying parent-time. Second, based on those findings, the
district court needed to explain the process by which it
concluded that eliminating supervised parent-time was in the
best interest of Child. The district court completed both tasks in
its post-remand decision.
¶19 First, the district court identified changed circumstances
that supported its decision to modify parent-time. See supra ¶ 5.
Most notable among these is that Mother and Child had received
substantial therapy at the time of the modification, there had
been no problems reported during Mother’s supervised
parent-time, and Child was older and had grown in maturity.
The 2010 Order stated that supervised parent-time was to
4. Because the statutory provision in effect at the relevant time
does not differ in any material way from that now in effect, we
cite the current version of the Utah Code.
20170167-CA 8 2019 UT App 82Blocker v. Blocker
continue “until such time that [Mother] demonstrates that she
has changed her mind set with regard to her own parenting
abilities and [Father’s] relationship with [Child].” Mother’s
reception of therapy and the absence of reported problems are
changed circumstances relative to the condition (that is,
Mother’s uncooperative mind-set) that originally gave rise to the
imposition of supervised parent-time. The court also noted that
modification was necessary because the conditions (namely, the
prohibitive costs associated with supervised parent-time, the
unavailability of a joint therapist, and the demise of the original
supervising agency) originally imposed for Mother’s
unsupervised exercise of parent-time had so substantially
changed as to make the 2010 Order unenforceable. By
highlighting these changed circumstances, the district court
made “some showing of a change in circumstances” necessary to
modify parent-time. See Erickson, 2018 UT App 184, ¶ 16 (cleaned
up).
¶20 Second, the district court explained the process by which
it concluded a modification in parent-time was needed to serve
Child’s best interest. Given the unenforceability of the 2010
Order, the court noted that Uncle had been supervising Mother’s
parent-time for a few months as of April 2014. Mother had
exercised this parent-time without incident. The court also noted
that, given the parties’ desire “to reasonably accommodate a
relationship” between Child and Mother, “curbside parent
time . . . was not in the best interest of [Child]” because “[Child]
needed a more reasonable and less artificial opportunity to know
his [Mother] and her family.” Thus, the court allowed Uncle to
continue to supervise Mother’s parent-time on a temporary
basis. And at the same time, the court ordered a home study. The
case was set for further review after completion of the home
study and continuation of parent-time supervised by Uncle.
Four months later, after receiving the home study and hearing
that supervised parent-time had been “successful and without
incident,” the district court granted Mother unsupervised
parent-time on a temporary basis. About a year later, the court
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determined that Mother had exercised unsupervised, statutory
parent-time without incident, and it permanently granted her
unsupervised parent-time. The court explained that granting
Mother unsupervised parent-time was in Child’s best interest
because “it would most effectively foster a continuing
relationship” between Child and Mother.
¶21 “[District] courts have particularly broad discretion in
ordering parent-time, and we will only intervene when the
[district] court’s action is so flagrantly unjust as to constitute an
abuse of discretion.” Jones v. Jones, 2016 UT App 94, ¶ 13, 374
P.3d 45 (cleaned up). “The best interests of a minor child are
promoted by having the child respect and love both parents,
which includes fostering a child’s relationship with the
noncustodial parent.” Hanson v. Hanson, 2009 UT App 365, ¶ 3,
223 P.3d 456 (cleaned up); see also Jones, 2016 UT App 94, ¶ 14
(“The paramount concern in [parent-time] matters is the child’s
welfare or best interest. Fostering a child’s relationship with the
noncustodial parent has an important bearing on the child’s best
interest.” (cleaned up)). Thus, the district court acted well within
its broad discretion when it found that modifying Mother’s
parent-time from supervised to unsupervised status was in
Child’s best interest as the most effective means to “foster a
continuing relationship” between Mother and Child.
CONCLUSION
¶22 We conclude that, upon remand, the district court
properly entered findings of fact that were sufficiently detailed
to identify the steps it took to modify Mother’s parent-time. We
further conclude that the district court did not abuse its
discretion in reaching the conclusion that unsupervised
parent-time was in Child’s best interest.
¶23 Affirmed.
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