Risher v. Emerson

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