K.P.S. v. E.J.P.

2018 UT App 5THE UTAH COURT OF APPEALS
K.P.S.,
Appellee,
v.
E.J.P.,
Appellant.
Opinion
No. 20160164-CA
Filed January 5, 2018
Third District Court, Salt Lake Department
The Honorable Paul G. Maughan
No. 034906783
Virginia L. Sudbury and Alison Satterlee, Attorneys
for Appellant
Asa E. Kelley, Attorney for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.
TOOMEY, Judge:
¶1 E.J.P. (Father) appeals the district court’s award of sole
physical custody of their child (Child) to K.P.S. (Mother),
contending the district court failed to provide sufficient findings
of fact to support its decision and failed to articulate the reasons
for its decision not to follow the recommendation of the
Guardian ad Litem (the GAL) that Father be awarded primary
physical custody of Child. Father also asks this court to remand
for a ruling on the remaining issues that were certified for trial
but were not ruled upon. We agree with Father and vacate the
district court’s award of sole physical custody to Mother and
remand for further proceedings on this issue, as well as the
issues that the district court failed to address.
K.P.S. v. E.J.P.
BACKGROUND
¶2 Mother petitioned for a divorce from Father in 2003, after
almost two years of marriage. Shortly thereafter, they stipulated
to a mutual restraining order, which prohibited communication
between them that did not involve Child, and agreed Mother
would have temporary legal and physical custody of Child, who
was less than two years old at the time. Mother was also
permitted to move to Idaho with Child, where she and Child
have resided since 2003. Father, who remained in Salt Lake City,
Utah, was awarded parent-time. In 2005, the district court
entered a bifurcated decree of divorce, leaving the issues of child
custody, child support, spousal support, marital debts, and
marital property for further adjudication.
¶3 Since the divorce, Mother and Father’s relationship has
been hostile. Testimony at trial demonstrated that parent-time
exchanges were often tense. And in 2005 and 2007, Mother
accused Father of abusing Child and reported the allegations to
the Division of Child and Family Services (DCFS). DCFS
initiated investigations into the allegations, which led the court
to order supervision during Father’s parent-time with Child. In
2011, Father successfully petitioned DCFS to review the abuse
allegations against him. Thereafter, DCFS changed its findings
from “supported” to “unsupported.” 1 In 2013, Father petitioned
1. Utah Code section 62A-4a-101(45) defines “unsupported” as
“a finding at the completion of an investigation that there is
insufficient evidence to conclude that abuse, neglect, or
dependency occurred.” Utah Code Ann. § 62A-4a-101(45)
(LexisNexis Supp. 2017). But “a finding of unsupported means
also that the division worker did not conclude that the allegation
was without merit.” Id. An allegation of abuse is “without merit”
when DCFS finds that the alleged abuse “did not occur, or that
(continued…)
20160164-CA 2 2018 UT App 5K.P.S. v. E.J.P.
the district court to amend the bifurcated decree of divorce to
remove the supervised parent-time provision, but that provision
was not removed until after a 2015 mediation.
¶4 While in Mother’s care, Child became severely depressed,
sparking a pattern of self-harming behavior, most of which went
unnoticed, including at least one of two suicide attempts. And
when Mother was apprised of this behavior, her concern did not
rise to the level that would be expected. During one of Child’s
stays with Father, he believed she was having an allergic
reaction of some sort and took her to the emergency room for
treatment. Because Child did not respond to treatment, the
physician directed a social worker to observe Child to determine
whether the reaction was “anxiety related.” The social worker
asked Child if “she had ever had thoughts of self-harm,” and
Child disclosed that, when she was ten years old, she had taken
a bottle of sleeping pills at Mother’s house “because she just
wanted to die.” Mother did not know that Child had attempted
suicide until Father informed her of it. Child also told the social
worker that she had attempted suicide a second time at the age
of twelve, this time by cutting her wrists with knives from
Mother’s kitchen. 2 The knives were not sharp enough to cause
fatal wounds, but they did physically injure her.
¶5 At the time of trial, Child had continued to engage in self-
harming behavior while in Mother’s care, including using razor
blades to cut her forearms and hips. When asked if Child
engaged in this type of behavior while in Father’s care, Father
(…continued)
the alleged perpetrator was not responsible for the abuse.” Id.§ 62A-4a-101(46).
2. Because she was not asked about this event at trial, it is
unclear whether Mother was aware of this second attempt.
20160164-CA 3 2018 UT App 5K.P.S. v. E.J.P.
testified it was very unlikely because when she arrived at his
house Child gave him the razor blade and discussed with him
what had “bother[ed] her.”
¶6 At trial, Mother downplayed Child’s first suicide attempt.
She testified that the pills Child ingested were merely melatonin
and that melatonin is “a natural herbal sleep aid,” so “they don’t
hurt ya.” When asked about this again, Mother testified, that she
did not know exactly what Child ingested in an attempt to end
her life but stated, “I know that if you take one melatonin pill, it
won’t harm you. I don’t know how many she took . . . . I don’t
know if [taking a full bottle] would or would not” have harmed
Child.
¶7 Father, on the other hand, took the news of Child’s
attempted suicide seriously and found her an Idaho therapist
(Therapist) with an office thirty minutes away from Mother’s
house. Father testified that, even when Child stayed with him in
Salt Lake City, he drove her to therapy appointments in Idaho.
Father and Child also filled out a “suicide prevention” plan that
included the names of people to call if Child had suicidal
ideations and identified other steps to take to prevent her from
harming herself. Father added that he was concerned that
Mother continued to not allow Child to take the medication
prescribed to treat her depression.
¶8 One incident, dubbed by Mother’s attorney as “the ice
cream event,” received the most attention at trial. Mother
testified that, before one of Child’s therapy appointments,
Mother “could tell [Child] was just dragging that morning. It
was hard to get her up and ready for the [appointment].” Once
there, Child told Therapist that she was having suicidal
ideations. Mother testified that, based on this, Therapist “[v]ery
strongly” recommended that Mother immediately take Child to
the nearest emergency room, and Therapist had notified the
hospital’s psychiatric unit that Child would be arriving shortly.
20160164-CA 4 2018 UT App 5K.P.S. v. E.J.P.
Therapist also contacted Father to alert him to Child’s suicidal
thoughts. Concerned, Father tried contacting Mother, but after
numerous unanswered phone calls, spoke directly to Child, who
informed him that, rather than going to the emergency room,
Mother was taking her and her half-siblings out to swim and get
ice cream.
¶9 On cross-examination, Mother was asked whether she
took Child’s “threats and attempts to kill herself seriously.”
Mother responded, “Of course,” but also stated she “made a
decision” not to follow through with Therapist’s
recommendation to take Child to the emergency room on that
particular occasion. While Mother and Therapist talked, Child
was having fun with her half-siblings in the waiting room.
Mother then clarified that she had still planned to take Child to
the emergency room and added, “But surely [I could] take her to
get ice cream first, you know, before [going] to the psychiatric
center.” Mother also testified she could not have taken her two
younger children to the emergency room with Child and instead
decided to take all of them swimming, because “it just turned
out to be a good day for it” and “as a family . . . we don’t get to
do it very much.” Mother testified that Child appeared “happy”
and “overjoyed” after swimming and eating dinner with the
family and told Mother she felt much better.
¶10 Father testified that if Child ever expressed suicidal
ideations while staying with him, “There wouldn’t even be a
hesitation, she would be back up in the emergency room.” 3
3. At trial, Father testified about Child’s other medical issues and
his concern that Mother had failed to address them
appropriately. We focus on the most serious challenges Child
faced without minimizing these other issues.
20160164-CA 5 2018 UT App 5K.P.S. v. E.J.P.
¶11 Child’s educational needs were also addressed during
trial. Both parties agreed that Child is intelligent and had always
been “very articulate” and independent. Father testified he had
communicated with Child’s teachers in Idaho and had been
informed that “they really can’t challenge Child. She gets
bored.” Father testified he “has to put pressure on her to pull her
grades back up because she gets bored and doesn’t
[participate].” The teachers recommended that Father look into
an online school “while she’s in Idaho to challenge her.” Father
described Child’s academic and career aspirations and the plan
Father had helped her create to realize those goals. Father
testified that, if Child lived with him, she would be “guaranteed
a seat” at a public charter school 4 that offered numerous
advanced placement courses in languages, history, English,
math, science, and more. The charter-school students also had
the opportunity to take courses for college credit at the
University of Utah. Based on Child’s long-term academic and
career goals, Father wanted Child to have the opportunity to
prepare for college.
¶12 Mother did not testify that she conversed with Child’s
teachers about her status as a student. When asked about the
courses Child would “be exposed to” if she continued to attend
school in Idaho, Mother responded, “Generally just whatever is
required by law in the public school system. Um, also I
have . . . some pamphlets on an accelerated program where she
can receive college credits and graduate early.” But Mother
could not identify the courses offered or the requirements of the
accelerated programs that would allow Child to graduate early.
4. Though the school used a “lottery system” for accepting
students, Child qualified for the “sibling exemption,” because
Child’s older sister had just graduated from the school.
20160164-CA 6 2018 UT App 5K.P.S. v. E.J.P.
¶13 Each parent was asked to explain why he or she should be
awarded custody of Child. Mother testified she should maintain
sole physical custody because she loved Child, has had sole
custody of Child for the majority of Child’s life, and was
concerned Father would not facilitate the statutorily required
parent-time with her. Mother did not explain the basis for this
concern. 5 Father testified that he should have primary physical
custody because he would help make Child’s life better. He
wanted to ensure that her mental health stabilizes and that she
would be given the opportunity to succeed academically and
pursue her goals.
¶14 The GAL made a detailed oral recommendation to the
court. She determined it would be in Child’s best interest to
award Father primary physical custody. She spent a significant
amount of time addressing her concerns about Mother’s
responses, or lack thereof, to Child’s mental health issues and
repeatedly stated that it was not in Child’s best interest for
Mother to maintain sole physical custody. She emphasized her
concerns about Mother’s pattern of “minimiz[ing] the
seriousness” of Child’s health, suicide attempts, suicidal
ideations, and self-harming behavior. She noted that Mother’s
refusal to allow Child to take prescribed medication and her
refusal to take Child to the emergency room after Therapist told
her that Child was suicidal not only minimized the seriousness
of Child’s mental health condition but was also an attempt to
distance herself from acknowledging that she contributed to
5. Indeed, the record shows that, on numerous occasions, Mother
either made excuses not to facilitate parent-time with Father or
“blatantly refuse[d].” Mother also repeatedly prolonged
proceedings related to parent-time and custody issues and was
therefore required to pay Father’s attorney fees for causing the
delays.
20160164-CA 7 2018 UT App 5K.P.S. v. E.J.P.
Child’s condition. The GAL concluded that Mother’s behavior
was “dangerous for [Child].”
¶15 The GAL also highlighted Mother’s initial retort that the
bottle of sleeping pills Child took in her first suicide attempt
“was ‘only melatonin’ and ‘couldn’t have hurt her,’” but then
later forgot exactly what substance Child took in an attempt to
end her life. The GAL also recounted the “ice cream event” and
discussed her concern that Mother would allow Child, who was
thirteen at the time, to dictate whether Mother should follow
Therapist’s recommendation to go to the emergency room. Child
told the GAL that she feels “ignored and not taken seriously” by
Mother. The GAL noted that, “concerning the medical
issues . . . and her depression alone,” she could “understand
where [Child] doesn’t feel that her needs are being taken
seriously” by Mother. The GAL commented that “sometimes we
might all identify as being [a] lazy [parent]. We didn’t bathe the
kids one night [or] help them pick up their rooms,” but noted
that there is a difference between “a lazy parent and one
who . . . minimizes the care their child needs.”
¶16 In contrast, the GAL stated that Father immediately
responded to Child’s medical needs. The GAL said that Child
felt “she can approach [Father] with anything,” she feels “loved
and cared for” by Father, and that they both followed the suicide
prevention plan she and Father established for her ideations,
which “gives her a sense of security.” The GAL recommended
that Father be awarded primary physical custody of Child
because Father took appropriate actions to address her needs.
¶17 The district court asked the GAL to “be more specific”
about why the recommendation was in Child’s best interest
because, as the court explained, “[W]e don’t let children make
decisions. They’re not capable of making decisions. . . . We don’t
do what children want, because it’s not in their best interest.”
20160164-CA 8 2018 UT App 5K.P.S. v. E.J.P.
¶18 The GAL responded, “I agree. We don’t let children make
decisions . . . of this significance,” and continued, “But we also
don’t let children override what a therapist has recommended to
a mother so that she could just . . . have fun. Which [is what]
Mother said.” The GAL reiterated her concerns about Mother
not providing the medical care that Child needed to treat her
depression, suicidal ideations, and self-harm. She also reiterated
that Father had “taken steps to address [Child’s] issues” and had
done so “in an appropriate way.” The GAL stressed that Child
needed “a parent who opens his or her eyes as to how significant
these issues are” and “who takes the appropriate steps to
address these issues.” In addition, the GAL determined it would
be “very beneficial” for Child to attend the charter school
because Mother, Father, and Therapist recognize she is “very
intelligent for her age.” For all of those reasons, the GAL
concluded it was “in Child’s best interest” to live with Father.
¶19 Although the district court acknowledged that “[i]t is
troubling . . . that [Mother] has not done more than she has to
address [the issues] with [Child],” the court nevertheless
awarded Mother sole physical custody. It ordered her “to follow
through with the recommendations of [Therapist] . . . to obtain
an evaluation of [Child] and abide[] by those recommendations,
including, that if medication is prescribed, then medication
needs to be given to [Child]. Therapy is to continue and the
recommendations given by [Therapist] are to be followed.” The
court later emphasized “that therapy for [Child] is to continue as
long as [Therapist] believes it to be wise and appropriate and
that [Mother] is to comply with any treatment or counseling
program provided for [Child].” The court also commented that it
“does not minimize [Mother’s] failure to follow through with
[the] medical needs of [Child].” And “although [Mother] did not
take [Child] to the [emergency room], she is still attending
consistent and ongoing therapy, which is a minimum standard
of care.”
20160164-CA 9 2018 UT App 5K.P.S. v. E.J.P.
¶20 In explaining its reason for disregarding the GAL’s
recommendation, the district court said,
The Court finds the Guardian ad Litem has done a
very wonderful, competent, professional job in
providing her recommendation to the Court.
However, based on the Court’s experience, both in
criminal court in dealing with child victims and in
this Court with hundreds of domestic actions
dealing with minors, the Court is not persuaded
that a thirteen (13) year old is capable of having
meaningful input to have her expressed interest
given much creditability and much weight by this
Court. The Legislature has recently changed that
age from sixteen (16) to fourteen (14), but thirteen
(13) is still not fourteen (14).[6]
The court did not find that it was in Child’s best interest for
Father to be awarded primary physical custody because Father
was “strong willed,” had poor temperament, did not exercise
enough parent-time “over the length of this matter,” and
required supervised parent-time. The district court also stated
that it would not consider Child’s education as a factor “unless
everything else was equal . . . especially in consideration of
6. The court appears to be referencing Utah Code section 30-3-
10(1)(e), which provides that a court may “inquire of a child and
take into consideration the child’s desires regarding future
custody or parent-time schedules” and that the “desires of a
child 14 years of age or older shall be given added weight.”
Effective May 14, 2013, the legislature amended this section and
substituted “14 years” for “16 years” for those children whose
desires are to be given “added weight.” See Utah Code Ann.
§ 30-3-10(1)(e) (LexisNexis Supp. 2017).
20160164-CA 10 2018 UT App 5K.P.S. v. E.J.P.
[Mother’s] statement that they do have an advanced placement
program in the Idaho schools.” 7
¶21 In awarding Mother sole physical custody, the district
court determined it “[was] not going to equalize parent time,
due to the distance between households” and awarded Father
only “minimum statutory parent time” of “110 overnights.”
¶22 Numerous issues were certified for trial, including legal
and physical custody, parent-time, a parenting plan, child
support, arrears on medical expenses, and reallocation of the
custody evaluator’s fees. Although most of the testimony
focused on custody, the parties provided evidence, either
through testimony or exhibits, that related to the parties’
respective income, Child’s medical expenses, orders by the court
to award Father reasonable attorney fees, and allocation of the
custody evaluator’s fees. The court did not address any of these
issues.
¶23 Father appeals the district court’s order awarding Mother
sole physical custody of Child and the court’s failure to rule on
all issues certified for trial.
ISSUES AND STANDARDS OF REVIEW
¶24 First, Father contends the district court “did not make
sufficient findings of fact” related to the custody issue when it
7. In its oral ruling, the district court judge stated, “I met last
summer a girl from China that grew up with nothing. She
started at nine years old making funeral cards by putting the tin
foil on the card. And last year graduated from Kennedy School
of Management.” The final order, drafted by Mother’s attorney,
put it this way: “people from all over from all different areas and
schooling find their way to higher education and do well.”
20160164-CA 11 2018 UT App 5K.P.S. v. E.J.P.
failed to “disclose the steps by which the ultimate conclusion on
each factual issue was reached” and failed to explain its
departure from the GAL’s recommendation that Father be
awarded primary physical custody of Child. We review a
challenge to the district court’s findings of fact for clear error. See
Nicholson v. Nicholson, 2017 UT App 155, ¶ 5, 405 P.3d 749. “We
review custody determinations under an abuse of discretion
standard, giving the [district] court ‘broad discretion’ to make
custody awards.” Cook v. Cook, 2013 UT App 57, ¶ 5, 298 P.3d 700(citation and internal quotation marks omitted).
¶25 Second, Father contends the district court “did not rule on
all issues certified for and presented at trial.” “It is the duty of
the trial court to find upon all material issues raised by the
pleadings, and the failure to do so is reversible error.”
Vandermeide v. Young, 2013 UT App 31, ¶ 8, 296 P.3d 787 (citation
and internal quotation marks omitted); see also Utah R. Civ. P.
52(a)(1) (“In all actions tried upon the facts without a jury . . . the
court must find the facts specially and state separately its
conclusions of law. The findings and conclusions must be made
part of the record[.]”).
ANALYSIS
I. The District Court’s Insufficient Findings of Fact
¶26 Father contends the district court failed to make sufficient
findings of fact to support its award of sole physical custody to
Mother and failed to articulate the reasons for its departure from
the GAL’s recommendation. We agree.
¶27 The district court’s “findings of fact must show that the
court’s judgment or decree follows logically from, and is
supported by, the evidence.” Andrus v. Andrus, 2007 UT App
291, ¶ 17, 169 P.3d 754 (citation and internal quotation marks
omitted). The findings of fact must be “sufficiently detailed and
20160164-CA 12 2018 UT App 5K.P.S. v. E.J.P.
include enough subsidiary facts to disclose the steps by which
the ultimate conclusion on each factual issue was reached.” Id.(citation and internal quotation marks omitted). Whenever
custody is contested, the district court must provide the
necessary supporting factual findings that link the evidence
presented at trial to the child’s best interest and the ability of
each parent to meet the child’s needs. See Sukin v. Sukin, 842 P.2d
922, 925 (Utah Ct. App. 1992); see also Utah Code Ann. § 30-3-
10(1)(a) (LexisNexis Supp. 2017) (providing that in custody
proceedings a district court “shall consider the best interests of
the child without preference for either parent” through the
consideration of several enumerated factors). “[F]ailure to
provide adequate findings is reversible error when the facts are
not clear from the record.” Bartlett v. Bartlett, 2015 UT App 2, ¶ 2,
342 P.3d 296 (citation and internal quotation marks omitted).
¶28 In Bartlett, a father challenged the district court’s award of
primary physical custody to the mother, arguing that the court’s
findings of fact lacked sufficient detail and “fail[ed] to disclose
the rationale” for its conclusion. Id. After awarding the mother
primary physical custody, but before the findings of fact were
entered, the father informed the district court at a review hearing
that, among other things, the mother had withheld parent-time
in violation of the schedule set at trial. Id. ¶ 4. The district court
admonished the mother for this behavior and “reminded her
that she needed to obey the court-ordered visitation schedule.”
Id. The district court entered findings of fact and conclusions of
law and awarded the mother primary physical custody. Id. ¶ 5. It
described “the status of the parties in some detail,” summarized
the “conclusions of the custody evaluator and other experts,”
and concluded that both parties were fit parents. Id. The court
indicated that the parties were “‘evenly balanced’” in all respects
but concluded that the mother was “‘better able and equipped to
support and sustain a positive relationship between [the
children] and their father’” and that the father had “‘not shown a
similar propensity.’” Id. (alteration in original).
20160164-CA 13 2018 UT App 5K.P.S. v. E.J.P.
¶29 On appeal, this court acknowledged that the district court
“admirably detailed” the findings of fact but concluded that the
findings failed to “disclose the steps by which the court reached
its decision to award custody to [the mother].” Id. ¶ 6. This court
explained that the “custody award [depended upon] the factual
conclusion” that the mother was “‘better able and equipped to
support and sustain a positive relationship between the
[children] and their father,’” but the district court “identified no
subsidiary facts supporting this finding.” Id. (second alteration
in original). This was “a striking omission in light of the fact that
the court had recently admonished [the mother] for denying [the
father] court-ordered access to the children.” Id. The custody
award was vacated and the case remanded “for further
proceedings, including supplementation of the court’s findings
and reconsideration of the custody award in light of those
supplemental findings.” Id. ¶ 8.
¶30 Here, as in Bartlett, the district court detailed the status of
the parties and made factual conclusions but failed to provide
subsidiary facts to support any of its findings or conclusions.
And “the basis for the custody award [is not] clear from the
record.” Id. ¶ 7. The court based its custody award, in part, on
three factual determinations it made against Father.
¶31 First, the court found Father did not exercise enough
parent-time, but it did not discuss the number of times Father
failed to exercise parent-time or explain why the number of
times he did exercise parent-time was deficient. The court
ignored the many obstacles Father encountered in exercising
parent-time. For example, Mother lived three hours away from
Father and withheld parent-time on several occasions. The court
also appears to have ignored the significant efforts Father made.
For example, Father not only paid for gas and hotel rooms for
his parent-time in Idaho but also paid for Mother and her other
children to participate in activities with Father, Child, and
Father’s family. Much like the Bartlett court, we deem the district
20160164-CA 14 2018 UT App 5K.P.S. v. E.J.P.
court’s failure to provide subsidiary facts supporting this finding
to be a “striking omission.” This is especially so, given that the
district court stated in its findings of fact that it questioned the
accuracy of Mother’s testimony that she made up the parent-
time that she initially precluded Father from exercising. 8
¶32 Second, the district court stated that Father was “strong
willed” and that it was “troubled in part by that characteristic,”
but it did not provide subsidiary facts to support its finding.
Moreover, the court did not explain what it meant by “strong-
willed” or why this characteristic should be treated as adversely
8. Overall, the way the district court articulated this finding is
concerning, because it is not coherent:
The Court finds that based on the evidence
presented, that much was made of a period over
one-year from January to June that parent time did
not take place, and that [Mother] testified that she
made up the time. The Court questions the
accuracy of [Mother’s] testimony but the Court
does find that [Mother] facilitated visitation on a
much more regular basis than [Father] exercised
his right to parent time during that period of time.
Testimony was that there was as much as eight (8)
times, but whether it was double that, it is still not
within the realm of facilitating or exercising parent
time on a meaningful basis.
We are perplexed, given the court’s phrasing, as to whether
Mother withheld parent-time eight or sixteen times, whether
Father exercised parent-time eight or sixteen times, or whether
Father missed parent-time eight or sixteen times. We are unable
to determine from the court’s findings how many parent-time
opportunities there should have been between January and June
of an unknown year.
20160164-CA 15 2018 UT App 5K.P.S. v. E.J.P.
impacting Child. 9 Relatedly, the court took issue with Father’s
temperament but made only one vague reference to it.
¶33 Third, the district court found that, because Father was
required to have his parent-time supervised for a number of
years during the course of the proceedings, it was not in Child’s
best interest to live with Father. The court failed to discuss the
nature of the conduct that prompted the imposition of
supervised parent-time, or the important fact that Father
successfully petitioned DCFS to review the allegations and
change its findings to “unsupported.” This change made by
DCFS meant that there was “insufficient evidence to conclude”
that the alleged abuse occurred. See Utah Code Ann. § 62A-4a-
101(45) (LexisNexis Supp. 2017). Indeed, Father’s parent-time
would not have been supervised if DCFS had made the correct
determination in the first instance.
¶34 The district court also rejected the GAL’s
recommendation. Although it is not bound to accept such a
recommendation if it is not well-founded, the court failed to
articulate a legitimate reason for its rejection that was
comparable to the GAL’s substantial, factually supported
concerns. See R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137(“Although a district court is not bound to accept a custody
9. From the record, it appears that Father’s “strong will” was
reflected in a determination to do what was best for Child as
evidenced by, among other things, his arranging for a therapist
in Idaho, conferring with Child’s teachers in Idaho, and
addressing Child’s other health-related needs after discovering
Mother had not taken appropriate action. In short, Father’s
“strong will” in advocating for Child seems to be a positive. If
there were aspects of his “strong will” that affected Child
negatively, they were not identified by the court and are not
obvious on the record before us.
20160164-CA 16 2018 UT App 5K.P.S. v. E.J.P.
evaluator’s recommendation, the court is expected to articulate
some reason for rejecting that recommendation”); cf. Tuckey v.
Tuckey, 649 P.2d 88, 91 (Utah 1982) (“[A]lthough the [district]
court was not bound to accept the evaluation of the Department
of Social Services, the court indicated no reason for totally
dismissing the report submitted under court order.”). The
district court complimented the GAL’s work, but focused on
what it erroneously characterized as the GAL’s reliance on
Child’s preference. 10 It noted that Child was only thirteen years
old and added, “The Legislature had recently changed that age
from sixteen (16) to fourteen (14), but thirteen (13) is still not
fourteen (14).”
10. This factual conclusion implies that the GAL based her
recommendation entirely on Child’s “expressed interest” in
living with Father. But the GAL provided many reasons in
support of her recommendation beyond conveying Child’s
preference. See infra ¶¶ 14–17. When a child is the subject of
litigation, a guardian ad litem is appointed by the court to
represent the interests of the child. Utah Code Ann. § 78A-6-
902(8)(a) (LexisNexis 2012). A guardian ad litem has the
statutory responsibility to investigate “the situation and needs of
the minor,” id. § 78A-6-902(3)(c), and will make
recommendations to the court based on that investigation and its
determination of the best interest of the child, see id. § 78A-6-
902(8)(a)–(d). A guardian ad litem is not required to conform its
recommendation with the “minor’s wishes,” and if “the minor’s
wishes differ from the [guardian ad litem’s] determination of the
minor’s best interest,” the guardian ad litem is required to
communicate the minor’s wishes to the court as well as its own
determination of the child’s best interest. See id. § 78A-6-
902(8)(b). The only time that a guardian ad litem is not required
to communicate the child’s wishes to the court is where the child
instructs the guardian ad litem not to do so or if the child “has
not expressed any wishes.” Id. § 78A-6-902(8)(d).
20160164-CA 17 2018 UT App 5K.P.S. v. E.J.P.
¶35 The district court was mistaken. The statutory provision
relevant to custody under the Utah Code provides that “[t]he
court may inquire of a child and take into consideration the
child’s desires regarding future custody or parent-time
schedules, but the expressed desires are not controlling and the
court may determine the child’s custody or parent-time
otherwise.” Utah Code Ann. § 30-3-10(1)(e) (LexisNexis Supp.
2017). That subsection also provides that the “desires of a child
14 years of age or older shall be given added weight, but it is not
the single controlling factor.” Id. (emphasis added.) And we
have previously noted that “a child’s preference concerning
custody decisions is not binding on the court and must be
weighed according to the age and maturity of the child
expressing the preference.” Larson v. Larson, 888 P.2d 719, 725 n.8
(Utah Ct. App. 1994) (citing an earlier version of Utah Code
section 30-3-10(1)).
¶36 The GAL articulated several concerns regarding Mother’s
ability to provide necessary care for Child. She focused heavily
on Mother’s minimization of Child’s medical needs. Specifically,
she was concerned that Mother had a pattern of “minimizing . . .
the seriousness” of Child’s suicide attempts, ideations, and self-
harming behavior. She supported this by describing Mother’s
dismissal of Child’s first suicide attempt. The GAL also
discussed the “ice cream event” and said that she saw this as
Mother not only minimizing the medical attention Child needed
but also disregarding the “seriousness of [Therapist’s] direction
and recommendation of what Mother should do” when Child
has a suicidal ideation. And the GAL was concerned that Mother
does not allow Child to take the medication prescribed for her
depression.
¶37 The GAL also provided numerous reasons supporting her
determination that it was in Child’s best interest for the court to
award Father primary physical custody. She explained that,
when it comes to Child’s needs, she has seen “that Father has
20160164-CA 18 2018 UT App 5K.P.S. v. E.J.P.
taken steps to address the issues that Child brings to him . . . in
an appropriate way.” She recounted that: (1) Father took Child
to the emergency room immediately after discovering she was
having a suicidal ideation; (2) Father looked for a therapist near
Mother’s house and found Therapist; (3) Father has taken Child
to her therapy appointments in Idaho during his parent-time in
Salt Lake City; (4) Father helped Child fill out the “suicide
prevention” plan and discusses it with her during his parent-
time and that this “gives her a sense of security”; and (5) Father
showed at trial that he understands Child’s academic and career
goals and has a plan for helping her to realize those goals.
¶38 And, as required by the Utah Code, the GAL informed the
court of Child’s desire to live with Father. She explained that her
observations of Child, and discussions with Child’s relatives and
Therapist, led her to conclude that Child “is intelligent,”
“conversant,” and “articulate.” This information offered the
district court a basis for determining how much weight Child’s
desires should be given in conjunction with other evidence. See
Larson, 888 P.2d at 725 n.8.
¶39 The district court was “not bound to accept” the GAL’s
recommendation, but, as with its duty regarding the findings of
fact, “the court [was] expected to articulate some reason for
rejecting that recommendation.” R.B. v. L.B., 2014 UT App 270,
¶ 18, 339 P.3d 137. This is especially true in a case like this,
where the recommendation is so carefully arrived at and so well
explained, as confirmed by the district court’s compliment of the
GAL. Here, the court failed to address all of the GAL’s
statements supporting her recommendation that were distinct
from Child’s wishes and rejected the recommendation because
Child was only thirteen years old and, in the court’s view,
incapable of having any meaningful input that would allow it to
give weight to her desires. The district court failed to address the
GAL’s determination that Child was intelligent, conversant, and
20160164-CA 19 2018 UT App 5K.P.S. v. E.J.P.
articulate, and failed to provide subsidiary facts or applicable
law for its refusal to give weight to Child’s desires.
¶40 The only factor provided by the GAL in support of her
determination that Father should be awarded custody that the
district court addressed was Child’s academic future. The court
explained that “it does not make best interest findings on one
parent’s ability to provide education unless everything else was
equal.”
¶41 It is most curious that the district court concluded that, in
light of the parents’ respective track records, Mother was better
fit to take sole physical custody of Child. The court’s findings do
not elucidate this conclusion and instead went so far as to
admonish Mother three times regarding her lack of attention to
Child’s medical needs and ordered her to comply with
recommendations of physicians and therapists. See Bartlett v.
Bartlett, 2015 UT App 2, ¶ 6, 342 P.3d 296. After these three
admonitions, the court stated that it “does not minimize
[Mother’s] failure to follow through with medical needs of” her
daughter but credited only Mother for Child’s “continued
therapy treatment.” The record does not support this attribution.
¶42 In light of the district court’s failure to provide sufficient
detail to demonstrate a factual basis for the custody award, and
its failure to adequately explain its departure from the GAL’s
recommendation, we vacate that award and remand the case for
further proceedings, including supplementation of the court’s
findings and reconsideration of the custody award in light of
those supplemented findings. 11 See id. ¶ 8. We do not intend our
11. Father also contends the district court abused its discretion in
awarding Mother sole physical custody because the award was
against the “manifest weight of the evidence presented at trial.”
“But because we rule that the findings of fact inadequately
(continued…)
20160164-CA 20 2018 UT App 5K.P.S. v. E.J.P.
remand to be merely an exercise in bolstering and supporting
the conclusion already reached. See Woodward v. Fazzio, 823 P.2d
474, 479 (Utah Ct. App. 1991) (citation and internal quotation
marks omitted). We are not altogether confident that the district
court’s final decision was correct, especially considering the
number of times the court admonished Mother for not taking
appropriate action with respect to Child’s suicide attempts and
further self-harming behavior. See id.II. The District Court’s Failure to Rule on All Issues Certified
for Trial
¶43 Father contends the district court failed to “rule on all
issues certified for and presented at trial.” “It is well settled that
a court must make findings of fact on all material issues raised
by the pleadings.” Cook v. Cook, 174 P.2d 434, 435 (Utah 1946). In
all actions tried upon the facts without a jury, “the court must
find the facts specially and state separately its conclusions of
law. The findings and conclusions must be made part of the
record and may be stated in writing or orally following the close
of the evidence. Judgment must be entered separately under
Rule 58A.” Utah R. Civ. P. 52(a)(1). Failure to rule on all material
issues certified for trial is reversible error, see Vandermeide v.
Young, 2013 UT App 31, ¶ 8, 296 P.3d 787, “unless the facts in the
record are uncontroverted,” Interstate Income Props., Inc. v. La
Jolla Loans, Inc., 2011 UT App 188, ¶ 13, 257 P.3d 1073.
(…continued)
disclose the steps by which the [district] court came to its
conclusion, we need not reach this contention.” See Bartlett v.
Bartlett, 2015 UT App 2, ¶ 8 n.2, 342 P.3d 296. We stress,
however, that we lack confidence in the district court’s
determination that the award of sole physical custody of Child
to Mother was at all in Child’s best interest.
20160164-CA 21 2018 UT App 5K.P.S. v. E.J.P.
¶44 Here, Father asserts that the issues of “child support;
arrears on medical expenses; attorney’s fees; and reallocation of
the Custody Evaluator’s fees, were [also] properly preserved at
the [district] court,” but the court did not rule on them. We
agree.
¶45 In its findings of fact and conclusions of law, the district
court found that “the following issues were certified for trial”:
custody, both legal and physical; parent-time; parenting plan
issues; child support; arrears on medical expenses; attorney fees;
and reallocation of the custody evaluator’s fees. Evidence was
presented throughout the trial, either through testimony or
exhibits, as it related to the parties’ respective income, Child’s
medical expenses, orders by the court awarding Father
reasonable attorney fees, and allocation of the custody
evaluator’s fees. But there were no rulings on any of these issues.
¶46 Mother erroneously argues we are prohibited from
reaching this issue under the doctrine of invited error. The
doctrine of invited error prohibits litigants from inducing the
district court “to make a ruling and then argue on appeal that
the ruling was in error.” Zavala v. Zavala, 2016 UT App 6, ¶ 21,
366 P.3d 422 (citation and internal quotation marks omitted). The
purpose of the invited-error doctrine is to “discourage[] parties
from intentionally misleading the [district] court so as to
preserve a hidden ground for reversal on appeal and to give the
[district] court the first opportunity to address the claim of
error.” Id. (first alteration in original) (citation and internal
quotation marks omitted).
¶47 In the case now before us, Father filed a “Motion to
Reconsider, or in the Alternative, Motion to Alter or Amend
Findings of Fact and Conclusions of Law” under rule 52 of the
Utah Rules of Civil Procedure. In the memorandum in support
of the motion, Father notified the district court that it failed to
rule on all of the issues certified for trial, identified the issues not
20160164-CA 22 2018 UT App 5K.P.S. v. E.J.P.
ruled upon, and asked the court to provide a ruling.
Accordingly, Father, who called the error to the court’s attention
rather than inviting it, is not prohibited from making this
argument on appeal. And because it is apparent from the record
that the facts from the record are not uncontroverted, see La Jolla
Loans, 2011 UT App 188, ¶ 13, we remand to the district court for
failure to rule on all material issues certified for trial, see
Vandermeide, 2013 UT App 31, ¶ 8, and to make an appropriate
ruling on each question. 12
CONCLUSION
¶48 We conclude the district court failed to provide
subsidiary facts to support its factual conclusions that led to its
award of sole physical custody to Mother and failed to address
the GAL’s concerns about Mother being awarded sole physical
custody or articulate the reasons for its departure from the
GAL’s recommendation. We also conclude the district court
failed to address all material issues certified for and presented at
trial. We therefore vacate the award of sole physical custody to
Mother and remand the case for further proceedings to allow the
district court to supplement the findings of fact and make the
appropriate custody award in light of those supplemented
findings.
12. See supra ¶ 42 & note 12.
20160164-CA 23 2018 UT App 5