Woodward v. LaFranca

2016 UT App 141THE UTAH COURT OF APPEALS
JAMES WOODWARD,
Appellant,
v.
JULIE LAFRANCA,
Appellee.
Opinion
No. 20140620-CA
Filed July 8, 2016
Fourth District Court, Provo Department
The Honorable Steven L. Hansen
No. 064401496
Troy L. Booher, Noella A. Sudbury, Julie J. Nelson,
and Sara J. Pfrommer, Attorneys for Appellant
Brent D. Young and Dallas B. Young, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
STEPHEN L. ROTH and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.1
ORME, Judge:
¶1 James Woodward (Father) again challenges the trial
court’s denial of his petition to modify the child custody
provisions of the divorce decree between himself and Julie
LaFranca (Mother) regarding their child (Child). In his previous
appeal, Woodward v. LaFranca, 2013 UT App 147, 305 P.3d 181,
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
Woodward v. LaFranca
we identified a number of problems with the trial court’s
decision and reversed and remanded for the trial court to
address those shortcomings. Id. ¶ 34. Because we determine that
the trial court substantially complied with the mandate of our
prior decision, we affirm.
BACKGROUND2
¶2 Father filed for divorce from Mother in July 2006, just
before the birth of Child. Id. ¶ 2. At that time, Father and Mother
stipulated to Mother’s custody of Child ‚subject to Father’s
rights to parent time.‛ Id. Just over three years later, in August
2009, Mother began making accusations—to the Division of
Child and Family Services and to Father’s employer—‚that
Child had been physically and sexually abused during Father’s
parent time.‛ Id. ¶ 3. After investigation, however, ‚*a+ll of
Mother’s abuse allegations were determined to be unfounded.‛
Id. Almost a year after the accusations began, in July 2010, Father
filed a petition to modify the divorce decree, requesting custody
of Child. Id. ¶ 4. That November, a domestic relations
commissioner recommended transferring temporary custody of
Child to Father on the ground that Mother’s ‚repeated
unsubstantiated abuse allegations‛ themselves constituted
severe child abuse. Id. See id ¶ 5. Following Mother’s objections
to the transfer of custody to Father, the trial court took up the
matter just over a year later. Id. ¶ 5. The trial court heard
testimony from Mother and Father as well as from several
experts, including a custody evaluator (Evaluator), Child’s
therapist (Therapist), and a court-appointed Special Master. Id.
Although the expert testimony overwhelmingly supported
Father, the trial court found that each expert lacked, for one
reason or another, credibility or persuasiveness. See id. So the
2. For a more complete recitation of the facts underlying
the instant appeal, see Woodward v. LaFranca, 2013 UT App 147,
¶¶ 2–5, 305 P.3d 181.
20140620-CA 2 2016 UT App 141Woodward v. LaFranca
trial court, ‚relying primarily on Mother’s testimony, . . . denied
Father’s petition to modify custody.‛ Id.¶3 Thus, somewhat uniquely, the instant case turns on
whether judicial discretion extends so far as to permit the trial
court to reject the testimony of all the experts that testified before
it. Compare Woodward, 2013 UT App 147, ¶ 5, with In re G.V., 916
P.2d 918, 920 (Utah Ct. App. 1996) (per curiam) (upholding a
trial court’s finding that the State’s expert witness’s testimony
was more credible than that given by the mother’s expert
witness in a parental rights termination decision). See also Ouk v.
Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751 (‚Clearly, the fact-
finder is in the best position to judge the credibility of witnesses
and is free to disbelieve their testimony. Even where testimony is
uncontroverted, a trial court is free to disregard such testimony
if it finds the evidence . . . not credible.‛) (citation and internal
quotation marks omitted).
¶4 The trial court originally dismissed as incredible the
testimony of all the expert witnesses who testified at trial—
Therapist, Evaluator, and the court-appointed Special Master—
and made a number of factual findings and legal conclusions,
almost all of which favored Mother. In Father’s original appeal,
we held that the trial court failed to adequately explain and
justify its rejection of the expert witnesses’ testimony and
improperly weighed certain of the best interests factors relevant
to the determination of custody. See Woodward, 2013 UT App 147,
¶ 34. Specifically, we held that the trial court exceeded its
discretion when it entirely rejected Evaluator’s testimony. See id.¶¶ 15–19.
¶5 We also concluded that minor inconsistencies in
Therapist’s testimony concerning Mother’s state of mind during
therapy sessions did ‚not definitively demonstrate the
inaccuracy of the Therapist’s *testimony+‛ and that, accordingly,
it was not reasonable to ‚question*+ the Therapist’s overall
credibility‛ on that basis. Id. ¶ 10. Furthermore, although we
held that the trial court did not exceed its discretion in assigning
20140620-CA 3 2016 UT App 141Woodward v. LaFranca
little weight to the Special Master’s testimony, we were
‚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.‛ Id. ¶ 20. We
noted that the Special Master’s testimony ‚was relevant, in
conjunction with the other evidence presented in this case, to the
court’s overall best interests determination,‛ and we emphasized
that it ‚should have been analyzed accordingly.‛ Id.
¶6 We concluded that the trial court also erred in its
consideration of the best interests factors because it
 found that the best interests factor of
emotional stability weighed in favor of
Mother without making any findings as
to Father’s emotional stability, much
less considering ‚whether Mother was
more emotionally stable than Father,‛
id ¶¶ 27–28;
 failed to explain why it rejected Evaluator’s
opinion as to Child’s bond with his
stepbrother and apparently considered ‚the
amount of time Child lived with his brother
as determinative of their bond,‛ id. ¶ 29;
 concluded, without further explanation,
‚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,‛ id. ¶ 30; and
 improperly focused on whether Mother’s
interference with Father’s visitation was a
material change in circumstances instead of
‚weighing the parents’ relative ability to
facilitate visitation,‛ see id. ¶¶ 32–33.
20140620-CA 4 2016 UT App 141Woodward v. LaFranca
Finally, although we concluded that the trial court did not
exceed its discretion in finding that Mother did not abuse Child,
id. ¶ 25, we questioned the trial court’s conclusion that ‚*t+his
factor does not weigh in favor of *Father+‛ because it neither
made findings nor was there evidence presented at trial that
Father had abused Child, id. ¶ 25 n.9 (alterations in original). We
further pointed out that ‚if the court believed Mother had
abused Child, just not severely, . . . this factor would actually
preponderate in favor of Father.‛ Id. Therefore, we instructed the
trial court to ‚weigh this factor accordingly‛ in reconsidering the
best interests factors on remand.3 Id.
¶7 On remand, the trial court supplemented its custody
order with forty pages of new material, but otherwise reissued
most of the same findings, concluding once again that it was in
Child’s best interest for Mother to have physical and legal
custody of Child.4 Father again appeals, insisting that the trial
3. The abuse question presented in this case is atypical. Mother
repeatedly claimed that Father physically and sexually abused
Child. None of these claims were substantiated, but the trial
court, in its original findings of fact, made no findings as to
whether Father ever abused Child. Father’s theory, embraced by
the expert witnesses, was that Mother’s many baseless reports,
and the resulting police and medical investigations, subjected
Child to a form of psychological and physical abuse. On remand,
the trial court concluded that neither party abused Child.
4. We acknowledge that the trial court could—and should—have
done more to make clear its compliance with our previous
mandate. See Woodward, 2013 UT App 147, ¶ 34. And instead of
starting over completely by restating nearly all of its previous
findings of fact and conclusions of law, it would have been much
more helpful had the trial court revisited only the factual
findings and legal conclusions addressing the particular issues
our prior opinion identified. See supra ¶¶ 4–6. After all, ‚*w+e
[did] not intend our remand to be merely an exercise in
(continued…)
20140620-CA 5 2016 UT App 141Woodward v. LaFranca
court did not follow our mandate on remand and erred in
standing by its decision in Mother’s favor.
ANALYSIS
¶8 A remand with specific instructions to the trial court
necessarily precludes the trial court from considering issues
outside the scope of remand, just as it constrains the appellate
court, on further appeal following remand, from reconsidering
the trial court’s decision except as to the resolution of the issues
previously identified.5 See Brown v. Babbitt, 2015 UT App 291, ¶ 6
n.5, 364 P.3d 60 (‚*U+nder the law of the case doctrine, ‘a
decision made on an issue during one stage of a case is binding
in successive stages of the same litigation.’ Thus, the doctrine
allows a court to decline to revisit issues within the same case
(…continued)
bolstering and supporting the conclusion already reached.‛ See
Allred v. Allred, 797 P.2d 1108, 1112 (Utah Ct. App. 1990). This
observation does not, however, compel the conclusion that the
trial court failed to substantially comply with our previous
mandate. See infra ¶ 10.
5. Although this panel has some reservations about the prior
decision, given the way the case is presented to us we
are constrained to consider only those issues previously
addressed by this court and remanded to the district court. See
supra ¶¶ 4–6. As we recently emphasized in the context of
standards of review, ‚*o+ur votes in this case demonstrate that
[the procedural posture of a case] really do*es+ matter.‛ Gunn
Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2015
UT App 261, ¶ 21, 361 P.3d 703 (Orme, J., concurring). In any
event, our prior decision has ‚become the law of the case,‛ and
we take it as our starting point. See Mid-America Pipeline Co. v.
Four-Four, Inc., 2009 UT 43, ¶ 13, 216 P.3d 352.
20140620-CA 6 2016 UT App 141Woodward v. LaFranca
once the court has ruled on them.‛) (quoting IHC Health Servs.,
Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 26, 196 P.3d 588); Wasatch
County v. Okelberry, 2015 UT App 192, ¶ 30, 357 P.3d 586 (noting
that a district court’s discretion to reconsider issues ‚is limited
when the case has been appealed and remanded‛ and that an
appellate court is generally bound by its prior decision on the
issues ‚should the case return on appeal after remand‛)
(citations and internal quotation marks omitted). Thus, we are
now only concerned with—and limit our consideration to—a
relatively narrow question: Did the trial court adequately
implement our mandate as expressed in the prior opinion?6 See
supra ¶¶ 4–6.
¶9 ‚‘*W+hen an appellate court makes a pronouncement on a
legal issue, [a lower tribunal] must not depart from the
mandate.’‛ Blauer v. Career Serv. Review Bd., 2012 UT App 120,
¶ 14, 276 P.3d 1246 (second alteration in original) (quoting Jensen
v. IHC Hosps., Inc., 2003 UT 51, ¶ 67, 82 P.3d 1076). ‚*T+he lower
court must implement both the letter and the spirit of the
mandate, taking into account the appellate court’s opinion and
the circumstances it embraces . . . [and it] may not reopen the
case to consider other issues or matters not included in the
6. Father appears to be correct in asserting that, ‚*i+n addition to
reassessing the factors discussed by this court,‛ the trial court
‚made findings on other best interest factors in an effort to
bolster its determination that it was in the child’s best interest for
custody to be transferred to Mother.‛ Such additional findings
compared Mother to Father’s new wife but failed to discuss
Child’s relationship with Father or Mother’s relationship with
her own extended family in determining the factor that the trial
court described as ‚kinship, including extraordinary
circumstances such as step-parents status,‛ and included a
mention of the fact that Mother, a teacher, ‚has summers off‛
under the factor of ‚ability to provide personal rather than
surrogate care.‛ See Hutchison v. Hutchison, 649 P.2d 38, 42 (Utah
1982).
20140620-CA 7 2016 UT App 141Woodward v. LaFranca
mandate.‛ Okelberry, 2015 UT App 192, ¶ 32 (first alteration in
original) (citations and internal quotation marks omitted).
¶10 ‚Reviewing whether a district court complied with the
mandate of an appellate court presents a question of law, which
we review for correctness,‛ Nguyen v. IHC Med. Servs., Inc., 2012
UT App 288, ¶ 6, 288 P.3d 1084 (citation and internal quotation
marks omitted), ‚granting no deference to the district court,‛
State v. Nicholls, 2006 UT 76, ¶ 3, 148 P.3d 990. But insofar as the
trial court substantially complied with our mandate, we review
its factual findings for clear error. Woodward, 2013 UT App 147,
¶ 6. Furthermore, even if we were to conclude that the trial court
had not substantially complied with our mandate, we would
nevertheless affirm where it is clear in context that, despite the
deviation, a contrary outcome as to that particular factual
finding or legal conclusion would not change the trial court’s
ultimate decision. See Pioneer Builders Co. v. KDA Corp., 2012 UT
74, ¶¶ 84–86, 292 P.3d 672 (declining to reverse on the basis of
nonprejudicial error). Against this backdrop, we now consider
the particular problems with the trial court’s custody order as
identified in our previous decision.
I. Expert Witnesses
A. Therapist
¶11 In our prior decision, we criticized the trial court’s
outright rejection of Therapist’s testimony and concluded that
the relatively small inconsistency between the number of times
Therapist testified that she reminded Mother of Therapist’s role
during therapy and the number of times she actually made a
note of those reminders did ‚not definitively demonstrate the
inaccuracy of the Therapist’s assertion.‛ Woodward, 2013 UT App
147, ¶ 10. To be clear, we agreed that the trial court was acting
within its discretion to question Therapist’s claim, but we did
‚not consider such an inconsistency to necessarily compromise
the credibility of the Therapist’s entire testimony as the trial
court concluded.‛ Id. ¶ 10 n.3.
20140620-CA 8 2016 UT App 141Woodward v. LaFranca
¶12 On remand, the trial court again largely discounted
Therapist’s testimony, citing ‚various exaggerations in [her]
testimony.‛ But it acknowledged that her credentials were
unchallenged, and it ‚considered and weighed *her testimony]
in the context of the other experts’ observations and opinions.‛
¶13 On remand, the trial court had discretion to consider
anew Therapist’s credibility as impacted by the inaccuracy of her
testimony. Id. This is because, as noted, ‚the fact-finder is in the
best position to judge the credibility of witnesses and is free to
disbelieve their testimony,‛ Ouk v. Ouk, 2015 UT App 104, ¶ 14,
348 P.3d 751 (citation and internal quotation marks omitted),
even if that testimony comes from an expert witness. The trial
court thus has discretion not only to choose between experts as
to relative credibility but also to disbelieve all the expert
testimony placed before it—provided ‚it can articulate a
reasonable basis for doing so.‛ Woodward, 2013 UT App 147, ¶ 19
n.4. See In re G.V., 916 P.2d 918, 920 (Utah Ct. App. 1996) (per
curiam). Because the trial court substantially complied with our
mandate to meaningfully reconsider Therapist’s testimony
rather than to simply reject it out of hand, Woodward, 2013 UT
App 147, ¶¶ 9–10, we cannot say that it abused its discretion, see
id. ¶ 6.
B. Evaluator
¶14 In the prior appeal, we highlighted a number of errors in
the trial court’s consideration of Evaluator’s testimony. See id.
¶¶ 15–19. We noted that the trial court mischaracterized certain
of his statements. Id. ¶ 15. We also noted that minor
inconsistencies were ‚not sufficient to compromise the overall
credibility of the Evaluator’s report and testimony‛ where that
testimony was consistent with his overall opinion that Mother’s
communications with Child while Child was in Father’s care
were improper because ‚they tended to give Child the
impression that he was not safe with Father.‛ Id. ¶ 16. We also
concluded that the trial court lacked a reasonable basis for its
conclusion that Evaluator ‚heavily relied‛ on the opinions of the
20140620-CA 9 2016 UT App 141Woodward v. LaFranca
other experts, noting that it was not even clear how the trial
court reached this conclusion given that Evaluator stated he
made a conscious effort ‚to do *his+ own evaluation.‛ Id. ¶ 18
(alteration in original). Finally, we held that the trial court
exceeded its discretion by rejecting Evaluator’s testimony based
on minor, irrelevant inconsistencies in his testimony or by
mischaracterizing that testimony. Id. ¶ 19. This court recognized,
however, the important caveat that ‚the trial court [was] free to
reject specific opinions or recommendations of the Evaluator,
where it [could] 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.‛ Id. ¶ 19 n.4.
¶15 On remand, the trial court again disagreed with
Evaluator’s recommendation that Child’s best interests would be
served by granting custody to Father. It again insisted that
Evaluator’s interpretation of Mother’s communications
undermined Evaluator’s credibility. And it again noted that
Evaluator derived much of his information from the Special
Master. In addition to this, however, it explained that
Evaluator’s testimony was compromised by several failures on
his part. Namely, it concluded that Evaluator did not follow up
with Mother’s current and former employers to determine the
nature of her interpersonal relationships with coworkers, that he
failed to ask any questions or otherwise determine why she
frequently changed attorneys, and that he did not ask her why
her several previous marriages had failed—even as he failed to
consider that Father had just as many failed marriages.
¶16 Furthermore, the trial court actually relied, in part, on
Evaluator’s testimony in its Amended Findings of Fact to
establish the ‚*r+elative strengths of *Child’s+ bond‛ with his
parents. Specifically, the trial court noted that it ‚does not take
issue with *Evaluator’s+ opinion that *Child+ demonstrates a
‘strong bond with all parenting figures,’‛ and it found that
Evaluator’s opinion that Child’s ‚relationship with all parenting
figures is due to the excellent upbringing provided by *Mother+‛
was correct. The trial court disagreed, however, with Evaluator’s
20140620-CA 10 2016 UT App 141Woodward v. LaFranca
conclusion that this factor was neutral because, as the court saw
it, ‚it is *Mother’s+ upbringing *of Child] which is responsible to
a significant degree [for Child’s+ healthy ability to bond with his
step-parents and his new brother.‛
¶17 Therefore, although this court lacks Mother’s confidence
that the trial court’s amended decision ‚more than adequately
explains a reasonable basis for the trial court’s ruling,‛ the
decision does at least ‚articulate a reasonable basis‛ for rejecting
Evaluator’s specific opinions, just as it also weighs those
‚recommendations in the context of all the other evidence before
the court.‛ Woodward v. LaFranca, 2013 UT App 147, ¶ 19 n.4, 305
P.3d 181. Having determined that the trial court substantially
complied with our mandate, we conclude that the trial court did
not abuse its discretion in re-assessing Evaluator’s testimony as
it did.
C. Special Master
¶18 In our prior decision, we expressed concern that the trial
court dismissed the Special Master’s testimony without
‚evaluating *her+ concerns in the context of the best interests
factors.‛ Id. ¶ 20. We also concluded that the content of the phone
calls between Mother and Child was relevant to the ultimate
custody determination and ‚should have been analyzed
accordingly.‛ Id.
¶19 The trial court failed on remand to address our concerns
on this issue and did not substantially comply with our remand
mandate. It neither seriously considered nor reasonably
evaluated ‚the Special Master’s concerns in the context of the
best interests factors.‛ Id. The closest it came to such an
evaluation was to state that the Special Master was ‚very critical
of *Mother’s+ insistence to speak by phone to *Child+‛ and that
‚*t+he Court has noted its criticism of the Special Master’s order
. . . placing [Child] in charge of the communication with
*Mother+.‛ Although the court continued from there to address
Father’s failure to facilitate these conversations, such discussion
20140620-CA 11 2016 UT App 141Woodward v. LaFranca
fails to address the point made in our prior decision, i.e., the
extent to which the content of those calls was relevant to the trial
court’s determination of the best interests factors. Id. As noted
above, however, we will affirm the trial court’s determination
unless we conclude that ‚a contrary outcome as to that particular
factual finding or legal conclusion would . . . change the trial
court’s ultimate decision.‛ See supra ¶ 10 (emphasis added). In
this instance it is clear that such is not the case. See Ouk v. Ouk,
2015 UT App 104, ¶ 14, 348 P.3d 751; Newmeyer v. Newmeyer, 745
P.2d 1276, 1278 (Utah 1987) (‚When acting as the trier of fact, the
trial judge is entitled to give conflicting opinions whatever
weight he or she deems appropriate.‛). We conclude that even if
the trial court corrected its error on further remand, the
correction would not alter the court’s custody decision and, thus,
the error is not prejudicial to Father.
II. Best Interests Factors
A. Evidence of Abuse
¶20 Although we previously concluded that the trial court did
not exceed its discretion in finding that Mother had not abused
Child, see Woodward, 2013 UT App 147, ¶ 25, we expressed
concern about the manner in which the trial court framed this
conclusion, id. ¶ 25 n.8, as well as the conclusion that ‚*t+his
factor does not weigh in favor of *Father+,‛ id. ¶ 25 n.9
(alterations in original). Specifically, we questioned whether the
trial court’s conclusion that Mother’s repeated false accusations
of sexual abuse against Father did not constitute ‚severe abuse‛
was meant to imply that the trial court did find that Mother
abused Child, but not to a severe degree. Id. ¶ 25 n.8. We also
wondered how the trial court could conclude that this factor did
not favor Father, or at least be regarded as neutral, because there
was no evidence from which it could have concluded that Father
abused Child, id. ¶ 25 n.9, while there was sufficient evidence to
conclude that Mother did—albeit in the atypical way previously
described, id. ¶ 25. See supra note 3. We therefore instructed the
trial court that, ‚*i+n considering the totality of the factors on
20140620-CA 12 2016 UT App 141Woodward v. LaFranca
remand, *it+ should weigh this factor accordingly.‛ Woodward,
2013 UT App 147, ¶ 25 n.9.
¶21 On remand, the trial court concluded that this factor was
neutral because neither parent abused Child. Our decision did
not require the trial court to find that either party abused Child;
indeed, we held that ‚*a+lthough the evidence could certainly
support the opposite conclusion, . . . the trial court’s findings
relating to this factor were *not+ clearly erroneous.‛ Id. ¶ 25. And
in the absence of evidence that either party abused Child in a
more typical way, see supra note 3, whether Mother’s many false
reports of abuse were themselves abusive, or merely reflective of
inept parenting, was something of a judgment call. Here again,
we must conclude that the trial court substantially complied
with our mandate.
B. Emotional Stability
¶22 In our prior decision, this court held that the trial court
abused its discretion in concluding that the emotional stability
factor favored Mother. Woodward v. LaFranca, 2013 UT App 147,
¶¶ 27–28, 305 P.3d 181. Essentially, the trial court found that
because Mother was a school teacher, had one stable friendship,
and took Child to ‚a steady daycare provider,‛ Mother was so
emotionally stable that ‚this factor ‘weigh[ed] heavily in favor of
[Mother].’‛ Id. ¶ 27 (alterations in original). We explained that
the trial court was not tasked with deciding whether Mother was
emotionally stable, but rather ‚whether Mother was more
emotionally stable than Father.‛ Id. ¶ 28 (emphasis added).
‚Thus, we *were+ 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.‛ Id.
¶23 Although the trial court’s analysis of Father on remand
was sparse and did not carefully address Evaluator’s concerns
about Mother’s mental stability, the trial court noted the
emotional toll that temporarily losing custody of Child had on
20140620-CA 13 2016 UT App 141Woodward v. LaFranca
Mother, apparently by way of an explanation for her instability
as perceived by Evaluator, and went on to find that ‚both
parents are well-adjusted, of good moral character, and
emotionally stable.‛ Thus, the trial court found that this factor
was neutral. To be sure, the trial court failed on remand to more
specifically address Father’s emotional stability and weigh it
against Mother’s. Considering that this analysis was what we
requested, see id., it is unfortunate that the trial court did not
provide more substantive findings on remand. But reversal for
yet further consideration of this one issue is very unlikely to
produce a different outcome in the instant case. See supra
¶¶ 10, 19. Given this lack of prejudice, we decline to reverse on
this issue. See Pioneer Builders Co. v. KDA Corp., 2012 UT 74,
¶¶ 84–86, 292 P.3d 672.
C. Child’s Bond with His Stepbrother
¶24 We previously concluded that the trial court abused its
discretion in concluding that Child’s bond with his stepbrother
‚did ‘not carry significant weight’‛ because the children had
only lived together ‚for approximately fifteen months.‛
Woodward, 2013 UT App 147, ¶ 29. We questioned the relevance
of the duration of the stepbrothers’ relationship in evaluating the
depth and importance of that relationship—especially because the
court failed to address Evaluator’s opinion that a strong bond
existed between the two. Id.¶25 In its Amended Findings of Fact and Conclusions of Law
following remand, the trial court agreed with Evaluator that
Child’s relationship with his stepbrother is important; it further
acknowledged that Child’s stepbrother exerts a positive
influence on Child. The trial court therefore concluded that this
factor favors Father, but it further stated that because the
physical proximity of the two was ‚temporary,‛ it did not accord
the factor much weight in reaching its ultimate custody decision.
¶26 The trial court substantially complied with our prior
decision’s mandate by acknowledging Evaluator’s findings and
20140620-CA 14 2016 UT App 141Woodward v. LaFranca
conclusions concerning the relationship between Child and his
stepbrother. See id. Indeed, the court actually concluded on
remand that this factor favored Father. But Father challenges the
trial court’s further determination that this factor carried little
weight. The trial court’s decision that this factor carried little
weight is a factual finding, which we review for clear error.
Id.¶ 6.
¶27 It is true that the trial court again referred to the
‚‘temporary’ arrangement‛ that brought Child and his
stepbrother into contact as a reason this factor did ‚not carry
significant weight with the court.‛ But in contrast to its original
decision in which it postulated that a correlation existed between
the duration of the brothers’ contact and the depth of their
relationship without citing any evidence, Woodward v. LaFranca,
2013 UT App 147, ¶ 29, 305 P.3d 181, the trial court was careful
in its amended decision to acknowledge that the evidence did
indeed tend to demonstrate that a strong bond existed between
the two and that this relationship was a positive one for Child.
Therefore, because the trial court substantially complied with
our mandate, we cannot agree with Father that the trial court’s
findings in this respect were clearly erroneous.
D. Child’s Bond with His Parents
¶28 In our prior decision, this court also took issue with the
trial court’s conclusion ‚that Child was more bonded to Mother
than to Father‛ because Child was ‚raised primarily by Mother
during the early years of his life.‛ Id. ¶ 30. We questioned ‚how
Child’s relative bond with each of his parents necessarily stems
only from the amount of time he has spent with them‛ and again
noted that the trial court overlooked Evaluator’s salient
testimony. Id.
¶29 As noted above, see supra ¶ 16, on remand the trial court
agreed with Evaluator in part, finding that Child had bonded
‚with all parenting figures.‛ But because the trial court further
found that these strong bonds were a direct result of the
20140620-CA 15 2016 UT App 141Woodward v. LaFranca
‚excellent upbringing provided by [Mother] during those many
months when [Father] was simply not available,‛ it concluded
that this factor favored Mother. Again, the trial court
substantially complied with our mandate; we directed the trial
court to consider Evaluator’s testimony, Woodward, 2013 UT App
147, ¶ 30, and it did. And the trial court, while noting that Child
spent most of his life with Mother, did not conclude that this fact
was determinative. So long as the trial court can ‚articulate a
reasonable basis for‛ its decision, we accord it substantial
deference. See id. ¶ 19 & n.4. Because the trial court did so in this
instance, it did not abuse its discretion.
E. Facilitation of Visitation
¶30 The trial court, in its original Findings of Fact and
Conclusions of Law, did not ‚consider the parents’ relative
willingness to facilitate contact and a positive relationship
between the child and the other parent,‛ id. ¶ 31, as required by
Utah Code sections 30-3-10 and 30-3-10.2. Instead, it considered
only whether the evidence of Mother’s interference with
visitation constituted a material change in circumstances. See
Utah Code Ann. § 30-3-10(1)(a)(ii) (LexisNexis Supp. 2015); id.§ 30-3-10.2(2)(c) (2013).7 Because we concluded that it was
unnecessary for the court to address whether a material change
in circumstances had occurred under the circumstances of this
case,8 we determined that the trial court’s original ‚conclusion
7. Although these statutes have been amended since Father
initiated his petition, the changes are inconsequential in the
context of this case. Therefore, for ease of reference, we cite the
most recent version of the Utah Code Annotated.
8. The rationale for this conclusion was that the divorce decree in
this case had not been adjudicated and that ‚when the trial court
considers a petition to modify an unadjudicated divorce decree
. . . it is unnecessary for the trial court to make a threshold
determination of material change in circumstances.‛ Woodward,
(continued…)
20140620-CA 16 2016 UT App 141Woodward v. LaFranca
that Mother’s interference was not a material change in
circumstances [was] irrelevant.‛ Woodward, 2013 UT App 147,
¶ 32. Moreover, that conclusion was potentially prejudicial to
Father ‚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.‛
Id. (emphasis added).
¶31 This court also specifically directed the trial court,
[i]n weighing best interests, . . . 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,
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. ¶ 33 (emphasis and second and third alterations in original)
(citations and internal quotation marks omitted). This standard,
we noted, ‚puts both parents on an equal footing before
weighing their relative willingness and ability to facilitate
visitation.‛ Id.
¶32 On remand, the trial court substantially complied with
our mandate. For example, the trial court found that Mother had
only once interfered with visitation, and it concluded that she
interfered because of her good-faith, but unfounded, concern
about abuse. And the trial court found that Mother generally
(…continued)
2013 UT App 147, ¶ 32. This court’s intervening opinion in
Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422, repudiated this
aspect of the prior Woodward opinion. See id. ¶¶ 17–18.
20140620-CA 17 2016 UT App 141Woodward v. LaFranca
facilitated visitation and encouraged good relations between
Child and Father. The trial court also concluded that Father’s
failure to facilitate ‚meaningful,‛ lengthy conversations between
Child and Mother indicated that ‚*Mother+ is more likely to
facilitate a relationship between [Child] and [Father], than
[Father] is likely to facilitate a relationship between [Mother] and
*Child+.‛
¶33 Whatever our misgivings about the trial court’s concern
regarding Father’s failure to foster ‚meaningful [telephone]
conversation‛ between Mother and Child when the latter was
four years old, the trial court substantially complied with our
mandate because it compared the relative strengths of each
parent, as it saw them, and it considered all the evidence before
it in doing so. See Woodward v. LaFranca, 2013 UT App 147, ¶ 33,
305 P.3d 181 (directing the trial court to compare the relative
strengths of each parent to decide which parent would better
facilitate Child’s relationship with the other parent, rather than
comparing the two parents on an unequal basis). Again,
‚*a+lthough the evidence could certainly support the opposite
conclusion, we do not think the trial court’s findings relating to
this factor were clearly erroneous,‛ and thus its decision did not
constitute an abuse of discretion. Id. ¶ 25.
CONCLUSION
¶34 With limited exceptions, the trial court on remand
substantially complied with our prior decision in this case. To
the extent that it did not, we conclude that reversal and remand
are not warranted, as a different outcome following a further
remand is unlikely given the limited importance of those few
areas where we could ask the trial court to take a third look and
more fully explain itself.
¶35 Affirmed.
20140620-CA 18 2016 UT App 141