Twitchell v. Twitchell , 2022 UT App 49 ( 2022 )

2022 UT App 49THE UTAH COURT OF APPEALS
JAZMIN S. TWITCHELL,
Appellee,
v.
JOSEPH N. TWITCHELL,
Appellant.
Opinion
No. 20200546-CA
Filed April 14, 2022
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 184100383
Ryan L. Holdaway and Diane Pitcher, Attorneys
for Appellant
Robert L. Neeley, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Joseph N. Twitchell appeals from a divorce decree and
appurtenant findings of fact and conclusions of law, arguing that
the district court failed to consider relevant statutory factors
when forming its custody determination, awarded him less
parent-time than the statutory minimum, and erroneously
calculated his child support obligation based on an inaccurate
accounting of the income of his ex-wife, Jazmin S. Twitchell. We
find Joseph’s arguments persuasive on each of these issues, and
accordingly, we remand for further proceedings.
Twitchell v. Twitchell
BACKGROUND
¶2 Joseph and Jazmin 1 were married in 2016 and share one
child (Child), who was born in May 2017. The parties “separated
about a year after she was born.” Shortly thereafter, in June 2018,
Jazmin filed for divorce, citing “irreconcilable differences.”
¶3 The court issued temporary orders in December 2018,
awarding the parties joint legal custody of Child and designating
Jazmin as the primary physical custodian, “subject to [Joseph’s]
right to parent-time.” As to the parent-time schedule, the court
directed the parties to follow the minimum schedule set out in
section 30-3-35 of the Utah Code, with Joseph generally
“designated as the non-custodial parent,” meaning that he could
exercise parent-time on alternating weekends. In addition, the
temporary orders granted Joseph an additional overnight with
Child “every Thursday night,” with Joseph keeping Child for the
weekend when it was one of his parent-time weekends and
returning Child to Jazmin’s care by noon on Friday when it was
not.
¶4 As the case proceeded to trial, Jazmin filed her financial
disclosures, dated November 7, 2019. In her disclosures, Jazmin
reported her gross monthly income as $2,111. In this document,
under an entry entitled “Employment Status,” Jazmin listed the
name of a child care center where she worked at some point.
Under an entry for “Name of Employer,” she listed a local
private school. Jazmin also filed a supplemental disclosure,
dated September 23, 2019, informing the court that she had been
serving as a “houseparent” at the private school since September
1, 2019, for which she received no monetary compensation but
1. Because the parties share the same surname, we follow our
oft-used practice of referring to them by their first names, with
no disrespect intended by the apparent informality.
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was provided room and board. Jazmin included a letter from a
representative of the school who estimated that the value of the
housing and utilities provided to Jazmin was $980 per month.
¶5 A two-day trial was held in December 2019, at which
multiple witnesses testified. During Joseph’s testimony, he
described instances of physical and verbal altercations beginning
a few months into the parties’ marriage. He averred that the first
time things became physical between the two was in November
2016, when stress regarding the upcoming holiday season
resulted in an argument and Jazmin eventually “going after
[him] with a knife,” cutting his hand. Joseph also described a
time in Spring 2017 when he and Jazmin were in another
argument, and he “went to go give her a hug and apologize . . .
and she bit [his] right arm.” He then described one more
instance where Jazmin told Joseph “she hated [him], over and
over and over again,” which prompted him to threaten leaving
with Child. In response, Jazmin “slapped or hit [him] with
something across the face.” Joseph also presented photographs
of injuries he sustained from each of these incidents, which were
admitted into evidence without objection.
¶6 Several witnesses also testified as to their observations of
Child’s condition once she went from Jazmin’s to Joseph’s care.
One witness testified that on multiple occasions when Joseph
received Child from Jazmin, Child had “severe diaper rashes”
with blistering, “yeast infections,” and “bite marks on her feet,”
and that she was “really dehydrated” to the point of not “even
having a bowel movement for a day or two after.” Another
witness also confirmed that Child had severe diaper rashes
when she came to Joseph, to the point that Joseph had to seek
care from a pediatrician, and testified that Child often “had bite
marks on both her hands . . . and her feet.” Joseph also produced
evidence documenting incidents of what he characterizes as
“assaults” from other children at a daycare while Child was in
Jazmin’s care.
20200546-CA 3 2022 UT App 49Twitchell v. Twitchell
¶7 Jazmin testified about her employment history since the
parties’ separation. During the marriage, Jazmin had been “a
stay-at-home mom,” but she started a job “within two weeks of
leaving” to help provide for Child. She testified to working at a
child care center from approximately July 2018 until March 2019,
when she left to accept an offer to work for higher pay at another
daycare center. She worked at that second center full-time until
October 2019. Jazmin began serving as a houseparent at the
private school in September 2019, a role she was still working in
at the time of trial.
¶8 In addition to her financial disclosure in which she
reported the aforementioned $2,111 figure, Jazmin also offered
her 2018 tax return into evidence. That return listed only the first
child care center as her employer and an annual gross income of
$7,044.75—which would translate to approximately $587 per
month. Jazmin nevertheless confirmed at trial that her gross
monthly income was $2,100. When asked if that amount
included the $980 value of her housing and utilities, she stated,
“No. That . . . doesn’t have anything to do with that.” When
asked about her current employment, she testified that she had
just started working as a substitute teacher earning $75 per day,
which she “guesstimate[d]” she did two to three days per week.
Based on that “guesstimate,” Jazmin testified that she earned
approximately $813 per month from substitute teaching as
opposed to the $2,100 in her financial declaration. Jazmin also
confirmed that, at the time of trial, she had no sources of income
other than her “service as a houseparent, [and her] income from
substitute teaching.”
¶9 Later, on cross-examination, when asked about the $2,111
reported as her gross monthly income in her disclosure, Jazmin
admitted that there was actually “no documentation being
provided with that [disclosure] that would substantiate that
number.” While Jazmin was being cross-examined, the court
interjected and expressed its confusion as to whether the $980
20200546-CA 4 2022 UT App 49Twitchell v. Twitchell
value of her housing expenses had been included in her reported
monthly income; although Jazmin never answered the court
directly, her attorney asserted that it was included within that
amount (contradicting Jazmin’s earlier testimony in which she
had stated the opposite). Jazmin also stated that at the time of
trial, she had actually worked as a substitute teacher on only one
occasion up to that point.
¶10 Testimony was also given by a representative of the
private school, whom Jazmin had contacted to secure
documentation of the value of her housing and utilities. A final
draft of a letter from the representative was attached to Jazmin’s
supplemental disclosure. But at trial, Joseph offered evidence of
an earlier draft of the letter in which the representative had
originally stated that the value of what Jazmin received was
estimated at $1,800 per month for rent and $1,000 per month for
utilities, whereas the amount given in the final letter was $980
for both rent and utilities. The representative testified that she
had sent the initial draft to Jazmin’s grandmother asking if it
was “acceptable,” and either Jazmin or her grandmother had
then asked additional questions about the square footage and
what portion of the house Jazmin was actually living in, and
whether that was reflected in the amount the representative
gave. This prompted the representative to change the amount to
$980 in the final letter, based on a “pro-rated amount” that
seemed more consistent with the part of the house where Jazmin
was living.
¶11 The court issued findings of fact and conclusions of law in
April 2020. 2 While it awarded the parties joint legal custody of
2. Other than mentioning that “both parent[s] can step up and be
good parents and both parents in large part have been good
parents,” the court did not announce a ruling from the bench at
the conclusion of the trial. Instead, it asked both parties to
(continued…)
20200546-CA 5 2022 UT App 49Twitchell v. Twitchell
Child, it also found that it was in Child’s “best interest” that
Jazmin be awarded primary physical custody. In support, the
court cited the following findings: Jazmin had primary physical
custody of Child since the parties separated, and the parties had
been “following” the parent-time schedule imposed by the court
in its temporary orders, consisting of “alternating weekends,
with [Joseph] being awarded overnight every Thursday”; Child
was “happy and well[-]adjusted and [was] progressing well
developmentally”; Child was “closely bonded to [Jazmin] as she
ha[d] been the primary custodial parent since birth, while
[Joseph] was the primary bread winner in the family”; it was in
Child’s “best interest . . . to maintain a close relationship with
her half sister,” of whom Jazmin has primary physical custody;
Jazmin had “exhibited good parenting skills” and was “of good
moral character, and emotionally stable”; Jazmin had “exhibited
a depth and desire for custody of [Child] since . . . birth”; Jazmin
had “a flexible work and school schedule and she ha[d] the
ability to provide personal care rather than surrogate care”;
Jazmin had experience in early childhood education; and Jazmin
“exhibited sound financial responsibility” whereas the court was
(…continued)
prepare proposed findings of fact and conclusions of law and
heard closing arguments at a subsequent hearing. Ultimately,
with only a few minor alterations, the court adopted Jazmin’s
findings of fact and conclusions of law in their entirety.
While we would not go so far as to say that it is
inappropriate for the court to fully adopt one party’s proposed
findings, before signing off the court should confirm that those
findings conform to the evidence presented at trial and that the
findings sufficiently explain the court’s reasoning for the
decision. In this case, it appears that the court adopted Jazmin’s
version of the evidence without confirmation of that evidence
and without disclosing the steps by which the ultimate
conclusion on each factual issue was reached.
20200546-CA 6 2022 UT App 49Twitchell v. Twitchell
“concerned about [Joseph’s] lack of financial responsibility”
based on his debt accumulations. In the findings, the court also
expressed its “concern[] about the alleged physical abuse
between the parties during the marriage” and therefore found it
“appropriate” for the exchanges of Child to occur at a police
department safe zone located roughly halfway between the
parties’ homes.
¶12 The court additionally noted its consideration of the
factors outlined in section 30-3-10.2 of the Utah Code, finding in
particular that Child’s “physical, psychological, emotional and
development needs will benefit from the parties sharing joint
legal custody.” But the court listed several reasons under these
factors why joint physical custody would not be appropriate,
finding that the “parties do not effectively communicate with
each other”; they lived “approximately 60 miles” apart; Joseph
“participated in raising [Child] but not to the extent that
[Jazmin] did”; “[t]o date there ha[d] not been . . . opportunities
for either parent to protect [Child] from any conflict that may
arise between the parties, due to [Child’s] age”; and “the parties’
relationship ha[d] stabilized and once these divorce proceedings
have concluded it is anticipated the parties will be able to
cooperate with each other and make appropriate joint decisions
regarding [Child].”
¶13 As to parent-time, the court concluded that Joseph’s
parent-time “shall be, until [Child] starts Kindergarten, every
Thursday overnight and every other weekend from Friday (after
school) to Sunday evening at 6 p.m.” And on weeks that ended
with Jazmin’s designated weekend, Joseph “shall return [Child]
to [Jazmin] by Friday at noon, after his Thursday overnight
visit.” The court also concluded that “[t]he parties shall follow
the holiday parent time pursuant to Utah Code Ann. § 30-3-35”
but that Joseph “shall be awarded six[ ]weeks of extended
summer vacation instead of four[ ]weeks, consistent with Utah
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Code Ann. § 30-3-35 and by stipulation of [Jazmin] at closing
arguments.”
¶14 Regarding child support, the court found that Jazmin
“earn[ed] $980 per month gross wage from her house parent job”
and “approximately $780 per month” from substitute teaching. It
therefore calculated her gross monthly income at $1,760 for child
support purposes. The court then found that Joseph’s average
gross income is $5,011 per month, and therefore his “child
support obligation is $582 per month.”
¶15 The court entered a decree of divorce in June 2020, in
which it largely echoed the parent-time findings, ordering that
Joseph’s parent-time “shall be every Thursday overnight and
every other weekend from Friday (after school) to Sunday
evening at 6 p.m. On [Jazmin’s] weekend with the parties’ child,
[Joseph] shall return [Child] to [Jazmin] by Friday at noon
following his Thursday overnight parent time.” And once Child
“commences Kindergarten [Joseph’s] parent time shall change[]
to every other weekend from Friday (after school) to Sunday at 6
p.m., and a mid-week from after school until 7 p.m.” The decree
did not mention a schedule for holidays or extended/vacation
parent-time. The decree also reiterated what the court found to
be the parties’ respective incomes, and accordingly it
memorialized its decision ordering Joseph to pay $582 per
month in child support.
¶16 Joseph promptly appealed the findings of fact and
conclusions of law, as well as the divorce decree.
ISSUES AND STANDARDS OF REVIEW
¶17 On appeal, Joseph presents two main issues for our
consideration. First, he attacks the district court’s custody
determination on two bases, arguing that the court’s custody
conclusion and the underlying factual findings are deficient
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because it failed to consider certain relevant factors and that the
court erred in awarding him less than the minimum time
provided by statute without explaining a reason to depart from
the statutory minimum. “[W]e review the district court’s custody
and parent-time determination for abuse of discretion.” T.W. v.
S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is
broad; indeed, as long as the court exercises it 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, we will not disturb the resulting
award.” Id. (quotation simplified).
¶18 Second, Joseph challenges the district court’s child
support determination, asserting that it made errors in
calculating Jazmin’s income, resulting in an inaccurate child
support obligation. 3 “In reviewing child support proceedings,
we accord substantial deference to the [district] court’s findings
and give it considerable latitude in fashioning the appropriate
relief. We will not disturb that court’s actions unless the
evidence clearly preponderates to the contrary or there has been
an abuse of discretion.” Hibbens v. Hibbens, 2015 UT App 278,
¶ 17, 363 P.3d 524 (quotation simplified).
3. As part of his broader challenge to the district court’s child
support determination, Joseph purports to include another
argument: that the court erred in dividing the parties’ debts.
However, Jazmin points out that while Joseph included this
argument in his articulation of the issues on appeal, he “did not
[substantively] address the debt issue in his brief.” Indeed, we
find a dearth of any argument regarding the debt distribution in
Joseph’s brief; accordingly, Joseph has failed to properly raise
such an argument for our consideration.
20200546-CA 9 2022 UT App 49Twitchell v. Twitchell
ANALYSIS
I. Custody and Parent-Time
A. Consideration of the Relevant Factors
¶19 Joseph first asserts that the district court erred by failing
to adequately consider certain statutory factors in formulating its
custody determination. Specifically, he asserts that two factors
did not receive the attention he feels they deserved by the
district court, namely, any “evidence of domestic violence,
neglect, physical abuse, sexual abuse, or emotional abuse,
involving the child, the parent, or a household member of the
parent” and “the past conduct and demonstrated moral
character of the parent.” See Utah Code Ann. § 30-3-10(2)(a), (d)
(LexisNexis 2019). We agree with Joseph that it is not clear from
the district court’s findings that it considered evidence regarding
abusive behavior by Jazmin, neglect and injuries to Child, or
Jazmin’s moral character. Accordingly, we remand for the court
to fully evaluate that evidence through supplemented or
additional findings.
¶20 “In all custody determinations, the district court’s
primary focus must be on the best interests of the child.” Pingree
v. Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (quotation
simplified). Furthermore, when “determining any form of
custody and parent-time” arrangement, the district court “shall
consider the best interest of the child and may consider [any]
factors the court finds relevant” to that end, including certain
factors that are specifically articulated in the Utah Code. See
Utah Code Ann. § 30-3-10(2). Importantly, not all these factors
are “on equal footing”; instead, the district court generally has
“discretion to determine, based on the facts before it and within
the confines set by the appellate courts, where a particular factor
falls within the spectrum of relative importance and to accord
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each factor its appropriate weight.” T.W. v. S.A., 2021 UT App
132, ¶ 16, 504 P.3d 163 (quotation simplified).
¶21 Determining which factors the court must address in a
given case, and to what degree, presents a tricky task. Inevitably,
some factors will loom larger in a given case than other factors,
and “[t]here is no definitive checklist of factors to be used for
determining custody.” Sukin v. Sukin, 842 P.2d 922, 924 (Utah Ct.
App. 1992). Consequently, “courts are not required to render a
global accounting of all evidence presented or to discuss all
aspects of a case that might support a contrary ruling.” Shuman
v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258. On the other
hand, a “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 v. Lay, 2018 UT App 137, ¶ 19,
427 P.3d 1221 (quotation simplified). And where significant
evidence concerning a particular factor is presented to the
district court, findings that omit all discussion of that evidence
must be deemed inadequate. See Barnes v. Barnes, 857 P.2d 257,
261 (Utah Ct. App. 1993) (“The record is replete with highly
disputed evidence relevant to the custody issue which is not
dealt with at all in the findings. The findings do not show
whether the court considered the moral conduct or emotional
stability of the parties and what evidence the court found
determinative in deciding the best interests of the children.”);
Sukin, 842 P.2d at 925 (“Whenever custody is contested and
evidence presents several possible interpretations, a bare
conclusory recitation of factors and statutory terms will not
suffice. We must have the necessary supporting factual findings
linking those factors to the children’s best interests and each
parent’s abilities to meet the children’s needs.” (quotation
simplified)).
¶22 Joseph asserts that the district court failed to consider
evidence presented at trial of domestic violence Jazmin had
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perpetrated against him as well as neglectful behavior Jazmin
had purportedly inflicted on Child. Specifically, Joseph points to
his own testimony at trial that Jazmin had slapped him in the
face hard enough to leave red marks, had attempted to stab him
with a pocket knife, and had bitten him. Joseph also presented
photographic exhibits purporting to show his injuries from these
incidents. Joseph also points to testimony at trial and an exhibit
he introduced into evidence tending to show injuries that Child
sustained while she was in Jazmin’s care. One witness testified
that when Joseph received Child from Jazmin, Child often had
“severe diaper rashes” with blistering, “yeast infections,” and
“bite marks on her feet,” and that she was “really dehydrated”
to the point of not “even having a bowel movement for a day or
two after.” Another witness also confirmed that Child had
severe diaper rashes when she came to Joseph, such that Joseph
had to seek care from a pediatrician, and testified that Child
often “had bite marks on both her hands . . . and her feet.”
Finally, Joseph asserts that the court did “not analyze or even
mention . . . multiple incidents” in which Jazmin supposedly
“engaged in deceitful tactics” during the litigation. Specifically,
Joseph asserts that Jazmin instructed a witness on what to testify
regarding Jazmin’s income from her houseparent job, that
Jazmin and another witness mischaracterized the events that
precipitated an incident when the police were called around the
time of the parties’ separation, that Jazmin claimed that the
parties were married on a date different from that indicated on
their marriage certificate, and that Jazmin supposedly attempted
to manipulate the testimony of her ex-husband in the case.
¶23 With respect to “evidence of domestic violence, neglect,
physical abuse, sexual abuse, or emotional abuse, involving the
child, the parent, or a household member of the parent” and “the
past conduct and demonstrated moral character of the parent,”
see Utah Code Ann. § 30-3-10(2)(a), (d), the court made only the
following finding: “[Jazmin] has exhibited good parenting skills,
is of good moral character, and emotionally stable.” It then
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proceeded to emphasize the facts it believed supported Jazmin’s
bid for custody: that Jazmin had been Child’s primary caretaker;
that Child had a bond with Jazmin’s other child, her half-sister;
that Jazmin had made sure Joseph received his parent-time in
accordance with the temporary orders; that Jazmin had “a depth
and desire for custody”; that Jazmin had a flexible schedule that
would allow her to provide personal care for Child; that Jazmin
had taken Child to her medical appointments; and that Jazmin
was financially responsible, “industrious,” and “goal oriented.”
The court made no findings regarding Joseph’s parenting
abilities, past conduct, bond with Child, etc., except to express
concern that he was in debt. 4 Finally, the court stated that it was
“concerned about the alleged physical abuse between the
parties” and concluded it was therefore appropriate for them to
exchange Child at a police department safe zone.
¶24 “To ensure that the trial court’s custody determination,
discretionary as it is, is rationally based, it is essential that the
court set forth in its findings of fact not only that it finds one
4. We are troubled by the manner in which the district court’s
findings focused exclusively on Jazmin rather than comparing
hers and Joseph’s relative character, skills, and abilities. See
Woodward v. LaFranca, 2013 UT App 147, ¶¶ 22, 26–28, 305 P.3d
181 (explaining that a court’s findings must “compare the
parenting skills, character, and abilities of both parents” and
reversing a finding that the emotional stability factor weighed in
favor of mother because it was based solely on the determination
that mother was emotionally stable without any findings
regarding father’s emotional stability; “the question for the court
was not whether Mother was emotionally stable, but whether
Mother was more emotionally stable than Father” (quotation
simplified)), abrogated on other grounds by Zavala v. Zavala, 2016
UT App 6, 366 P.3d 422. We urge the court on remand to make
the appropriate comparisons in revising its findings.
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parent to be the better person to care for the child, but also the
basic facts which show why that ultimate conclusion is
justified.” Sukin, 842 P.2d at 924 (quotation simplified). The
court’s finding that Jazmin “has exhibited good parenting skills,
is of good moral character, and emotionally stable” is inadequate
for us to determine whether the court exceeded its discretion in
assessing the abuse/neglect and moral character factors or how
those factors impacted Child’s best interests. Likewise, the
court’s expression of “concern[] about the alleged physical abuse
between the parties during the marriage” tells us nothing about
how or even if the court weighed the abuse allegations in its
custody evaluation. Indeed, it is not clear to us that the court
considered this factor at all in assessing which parent should be
awarded custody, as it mentioned the factor only in the context
of concluding that it would be “appropriate” for the exchanges
of Child to occur at a police department safe zone. Without at
least some discussion of the evidence the court relied on in
assessing the factors and how the court related the factors to
Child’s best interests, the court’s findings regarding the custody
factors are inadequate. See, e.g., K.P.S. v. E.J.P., 2018 UT App 5,
¶¶ 30–42, 414 P.3d 933 (determining that the court’s factual
findings were inadequate where it made factual conclusions but
did not discuss the evidence underlying those conclusions and
rejected the guardian ad litem’s recommendation without
explanation); Bartlett v. Bartlett, 2015 UT App 2, ¶ 6, 342 P.3d 296(rejecting the court’s conclusory finding that the mother was
“better able and equipped to support and sustain a positive
relationship between the children and their father” where the
“court identified no subsidiary facts supporting this finding”
and had, in fact, “admonished Mother for denying Father court-
ordered access to the children” (quotation simplified)); Barnes,
857 P.2d at 261 (rejecting as inadequate the court’s finding that
“[t]he Plaintiff’s level of commitment to her children during the
course of this separation has exceeded that of the Defendant and
that’s been established by their actions during the course of their
separation” because “[t]he findings do not show whether the
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court considered the moral conduct or emotional stability of the
parties and what evidence the court found determinative in
deciding the best interests of the children”); Roberts v. Roberts,
835 P.2d 193, 196–97 (Utah Ct. App. 1992) (deeming inadequate
findings that “Husband has physically abused Wife during the
marriage” and that “both parties have participated in acts that
bear on their moral character,” accompanied by a recitation of
examples of each party’s bad behavior because the recitation did
not give any “guidance regarding how those acts bear on the
parties’ parenting abilities or affect the children’s best interests”
(quotation simplified)); Cummings v. Cummings, 821 P.2d 472,
478–79 (Utah Ct. App. 1991) (reversing the district court’s
custody determination based on its failure to make findings
regarding evidence relating to important custody factors);
Paryzek v. Paryzek, 776 P.2d 78, 83 (Utah Ct. App. 1989) (holding
that it was an abuse of discretion for the court’s findings to “omit
any reference” to a custody evaluation and evidence relating to
the bond between father and son, the father’s status as primary
caretaker pending trial, the fact that the child thrived while in
the father’s care, and the son’s preference for living with his
father).
¶25 Thus, we conclude that the district court exceeded its
discretion by failing to include in its findings any discussion of
the evidence relating to the abuse allegations against Jazmin, her
alleged neglect of Child, and her moral character, as well as the
effect that evidence had on its best-interest analysis.
Accordingly, we vacate the district court’s custody and parent-
time order and remand for the court to revisit that evidence and
enter additional or supplemented findings, as necessary.
B. Deviation from Statutory Minimum Parent-Time Schedule
¶26 Joseph next argues that the district court committed
reversible error by awarding him less than the minimum parent-
time he is guaranteed by statute. Because we agree that the
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court’s custody award indeed creates a situation in which Joseph
is guaranteed less than the statutory minimum, without
explaining its reasoning in adequate factual findings, we
conclude that this is an additional reason to vacate the court’s
parent-time order.
¶27 In the event that the parents of a minor child litigating
that child’s custody are unable to agree to a parent-time
schedule, our legislature has codified a “minimum parent-time
[schedule] to which the noncustodial parent and the child shall
be entitled.” See Utah Code Ann. §§ 30-3-35(2), 30-3-35.5(3)
(LexisNexis 2019 & Supp. 2021). In fashioning its parent-time
order, the court may either “incorporate[] a parent-time schedule
provided in Section 30-3-35 or 30-3-35.5; or . . . provide[] more or
less parent-time” than outlined in those sections, but in either
case “[t]he court shall enter the reasons underlying the court’s
order for parent-time.” Id. § 30-3-34(4) (Supp. 2021). The court’s
reasoning must be outlined in adequate factual findings, which
must “contain sufficient detail to permit appellate review to
ensure that the district court’s discretionary determination was
rationally based.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d
1221 (quotation simplified). Thus, the statutory minimum
“provides [the court with] a presumptive minimum, but the
district court still retains discretion to award more [or less] time”
to the noncustodial parent, so long as it identifies “the reasons
underlying its order” in sufficiently detailed factual findings. See
T.W. v. S.A., 2021 UT App 132, ¶ 30, 504 P.3d 163 (quotation
simplified).
¶28 There is a separate section dealing with the minimum
schedule for children who are under five years of age, see Utah
Code Ann. § 30-3-35.5 (2019), and those who are between five
and eighteen years of age, see id. § 30-3-35 (Supp. 2021). As Child
was born in May 2017, she is still currently younger than five, so
section 30-3-35.5 applies. Under that section, Joseph is entitled to
“one weekday evening between 5:30 p.m. and 8:30 p.m.,”
20200546-CA 16 2022 UT App 49Twitchell v. Twitchell
“alternative weekends . . . from 6 p.m. on Friday until 7 p.m. on
Sunday,” certain holidays, and “two two-week periods,
separated by at least four weeks, at the option of the
noncustodial parent.” See id. § 30-3-35.5(3)(f) (2019).
¶29 Under the court’s findings and the divorce decree, Joseph
receives parent-time “every Thursday overnight and every other
weekend from Friday (after school) to Sunday evening at 6
p.m.,” and when it is Jazmin’s weekend, he returns Child to
Jazmin “by Friday at noon following his Thursday overnight
parent time.” Although Joseph correctly points out that the
parent-time order requires him to return Child one hour earlier
on Sundays than provided for in the statutory minimum
schedule, Joseph ultimately receives more than the minimum
parent-time required by statute while Child is under five,
because he receives an additional weekday overnight, whereas
the statute requires only a weekday evening visit. See id. Thus,
for the time being, Joseph receives more than the statutory
minimum.
¶30 But the situation changes when Child starts school. The
district court ordered that once Child “commences
Kindergarten,” Joseph’s parent-time “shall change[] to every
other weekend from Friday (after school) to Sunday at 6 p.m.,
and a mid-week from after school until 7 p.m.” This schedule
deviates from the statutory minimum, under which Joseph is
entitled to “[a]lternating weekends . . . from 6 p.m. on Friday
until Sunday at 7 p.m.,” and one weekday evening from either
“5:30 p.m. until 8:30 p.m.” or, “at the election of the noncustodial
parent, one weekday from the time the child’s school is regularly
dismissed until 8:30 p.m.” Id. § 30-3-35(2)(a)(i), (2)(b)(i)(A) (Supp.
2021) (emphases added). Thus, under the court’s parent-time
order, once Child begins kindergarten Joseph is required to
return her to Jazmin one hour early on his weekends and one-
and-a-half hours early during his weekday evenings.
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¶31 As Joseph convincingly points out, while these
discrepancies “may seem minor” to a casual observer, for “the
non-custodial parent on a minimum visitation schedule, hours
matter.” And, more importantly, the court did not explain—or
even acknowledge—that it was departing from the statutory
minimum. While section 30-3-35 is referenced in the findings of
fact with respect to Joseph’s parent-time for holidays and
summer vacation, the court made no other mention of the
statutory minimum schedule. 5 As noted, when making its
custody decision the court must give the “reasons underlying”
its decision. See id. § 30-3-34(4); T.W., 2021 UT App 132, ¶ 30. The
court did depart from the statutory minimum in this case, and it
gave no reason for doing so in its findings.
¶32 As a result, we are prevented from conducting
meaningful “appellate review to ensure that the district court’s
discretionary determination was rationally based.” See Lay, 2018
UT App 137, ¶ 19 (quotation simplified). Accordingly, the
findings in support of the district court’s parent-time order are
insufficient, leaving us with no choice but to remand the matter
for the court to adopt the statutory minimum schedule or
otherwise explain its reasoning for departing from the minimum
through adequate factual findings. See id.II. Child Support
¶33 Joseph next challenges the district court’s child support
determination, arguing that its determination of Jazmin’s income
was entirely unsupported by the evidence and insufficiently
explained. Because we agree that the court did not sufficiently
5. Furthermore, section 30-3-35.5 is not referenced at all, which
would have been the operative section from the time the decree
was entered until Child turns five.
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explain how it reached the number it did in calculating Jazmin’s
monthly income, we remand for entry of additional findings.
¶34 “A noncustodial parent’s child support obligation is
calculated using each parent’s adjusted gross income.” Barrani v.
Barrani, 2014 UT App 204, ¶ 11, 334 P.3d 994. Each parent’s
“gross income” for purposes of child support “includes
prospective income from any source, including earned and
nonearned income sources which may include salaries, wages,
. . . [and] rents.” Utah Code Ann. § 78B-12-203(1) (LexisNexis
2018). “Income from earned income sources is limited to the
equivalent of one full-time 40-hour job.” Id. § 78B-12-203(2).
“[C]hild support is appropriately calculated based on earnings at
the time of trial,” but district courts also “have broad discretion
to select an appropriate method” of calculating each parent’s
income. Griffith v. Griffith, 959 P.2d 1015, 1019 (Utah Ct. App.
1998).
¶35 In this case, there were a number of potential bases for the
court to assess Jazmin’s income. First, it could have accepted the
declared full-time income in her financial declaration of $2,100,
which she initially reaffirmed at trial. Second, it could have used
her part-time substitute teaching income of approximately $813
per month combined with her in-kind income of $980 per month
to reach a monthly income of $1,793. Third, it could have
imputed her full-time income based on her substitute teaching
salary of $75 per day for a total of $1,625 per month. There may,
perhaps, have been other methods the court could have
employed as well, had it adequately explained its reasoning.
¶36 Generally, “so long as the steps by which the ultimate
conclusion on each factual issue was reached are apparent, a trial
court may make findings, credibility determinations, or other
assessments without detailing its justification for finding
particular evidence more credible or persuasive than other
evidence supporting a different outcome.” Shuman v. Shuman,
20200546-CA 19 2022 UT App 49Twitchell v. Twitchell
2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified). And
had the court taken one of the approaches outlined above, or
another approach for which its reasoning was apparent, we
would be inclined to affirm the court’s decision. 6 However, here
the district court’s finding that Jazmin earned “approximately
$780 per month” from substitute teaching does not align with
any evidence submitted at trial, nor, so far as we can tell, can it
be extrapolated from that evidence. 7 As Joseph observes, this
number “do[es] not appear to come from the documentary or
testimonial evidence at all.” Jazmin testified that she earned $75
per day working as a substitute teacher but that she worked only
6. While a finding that aligned with the various numbers
presented at trial would have met the bare minimum threshold
for sufficiency, we note that this case would substantially benefit
from further analysis. First, the court did not address the
inconsistencies in Jazmin’s trial testimony regarding her income.
Jazmin first agreed that the $2,111 monthly income in her
financial declaration was accurate but then went on to testify
that she made only $75 per day substitute teaching and worked
only two to three days per week. But the court did not address
or explain the reasoning behind its resolution of this
inconsistency. Second, Joseph presented evidence that Jazmin’s
housing and utilities had been undervalued. The court’s decision
included no discussion of the conflicting evidence regarding the
value of Jazmin’s in-kind earnings or its assessment of that
conflicting evidence. On remand, the court’s findings could
benefit from a more thorough discussion of the evidence and
explanation for its resolution of these conflicts.
7. In Jazmin’s post-trial brief, she stated, without any supporting
evidence, that she earned $72 per day, for a total of $780 per
month. This appears to be the source of the court’s number. As
assertions in the post-trial brief are not evidence, the court could
not rely on this number to calculate child support.
20200546-CA 20 2022 UT App 49Twitchell v. Twitchell
two to three days a week. Using these numbers, she reached a
“guesstimate” of her monthly income of $813 per month ($75 per
day x 2.5 days per week x 52 weeks per year / 12 months). While
Jazmin was admittedly unsure about the amount she would be
able to earn, the $780 figure adopted by the court appears to not
be supported by the evidence presented at trial. While we are
reluctant to reverse a district court’s child support order on this
basis considering the small discrepancy between the $813 and
$780 figures, the fact remains that we are unable to identify the
“steps by which the ultimate conclusion on [this] factual issue
was reached.” See id. (quotation simplified).
¶37 In such situations, “without the benefit of the reasoning
and additional findings by the [district] court,” we must remand
the child support decision to the district court to detail its full
reasoning, through adequate findings, for why it chose the
income amount for Jazmin that it did. See Bell v. Bell, 2013 UT
App 248, ¶ 19, 312 P.3d 951.
CONCLUSION
¶38 This appeal compels us to remand the case because the
district court’s findings and conclusions were infirm in several
respects. First, the court failed to address disputed evidence that
was highly relevant to the court’s custody determination.
Second, the court’s order awards Joseph less than the statutory
minimum parent-time once Child starts kindergarten, without
explaining why or recognizing that it did so. And third, the
court’s findings regarding Jazmin’s income contain insufficient
detail for us to adequately review its reasoning.
20200546-CA 21 2022 UT App 49