LeFevre v. Mackelprang

2019 UT App 42THE UTAH COURT OF APPEALS
AMELIA GAYATREE LEFEVRE,
Appellee,
v.
CASEY LEE MACKELPRANG,
Appellant.
Opinion
No. 20171006-CA
Filed March 28, 2019
Sixth District Court, Panguitch Department
The Honorable Paul D. Lyman
No. 154600028
Van Mackelprang and Julie J. Nelson, Attorneys
for Appellant
Douglas L. Neeley, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY
concurred.
HARRIS, Judge:
¶1 Casey Lee Mackelprang (Father) asked the trial court to
modify the governing divorce decree (the Decree) to install him
as the primary custodial parent or, at least, change the parent-
time schedule to increase the number of nights his daughter
(Child) spent at his house. After a trial, the court denied his
request, and in addition ordered him to pay the full cost of a
custody evaluation. Father now asks us to review the trial court’s
conclusions, and we agree with Father that those conclusions
were infirm. Accordingly, we vacate the trial court’s order and
remand the case for further proceedings.
LeFevre v. Mackelprang
BACKGROUND
¶2 After nearly six years of marriage, Father and Amelia
Gayatree LeFevre (Mother) divorced in August 2014. They had
one child—Child—together, who was five years old at the time
of the parties’ divorce.
¶3 For the first few years of their marriage, the couple lived
in Cedar City, Utah with Child, who had some medical issues
and required extra attention. According to Mother, she provided
nearly all care for Child during this time period, even though
she was taking classes at a university, and even though Father
was not employed full-time. She maintained that Father often
refused to help with child care, and when she needed someone
to care for Child so that she could attend classes, she found it
necessary to call upon her sister, her parents, and even a few
friends, because Father was unwilling to do so himself. By the
time Child was three, Father had never spent a night alone with
Child and was not comfortable doing so.
¶4 Mother and Father separated in April 2012. At that point,
both Mother and Father left Cedar City to live with family:
Mother and Child moved to Boulder, Utah, and Father moved to
Kanab, Utah. A few months later, however, in the late summer
of 2012, Mother returned to Cedar City to begin work on a
master’s degree. Father also soon returned to Cedar City, but the
parties lived in separate residences. At that point, while Mother
continued to act as Child’s primary caregiver, the parties worked
out an informal parent-time arrangement in which Mother
would take Child over to see Father on occasion but, because
Father was still not entirely comfortable with caring for Child on
his own, Mother was often present during these visits. Most of
these visits were daytime visits for a few hours, although Father
did care for Child overnight on a handful of occasions.
¶5 Mother filed for divorce in August 2012 and, in
September 2013, the parties entered into a stipulated settlement
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agreement that designated Mother as Child’s primary physical
custodian. The agreement ordered parent-time for Father every
other weekend and every other Wednesday evening, a schedule
that (although it did not mention the statute) was similar to the
one set forth in Utah Code section 30-3-35. Nearly a year later, in
August 2014, the trial court signed the Decree, incorporating the
parties’ agreed-upon custody and parent-time arrangement.
¶6 During this period, Father and Mother each lived in
Cedar City during the week, but on most weekends Mother
traveled to Boulder to visit family and to work. Mother always
took Child with her to Boulder for the weekends, even on the
alternating weekends on which Father would have otherwise
been entitled to parent-time, and at the time Father voiced no
objection. Father also was not in the habit of exercising the
regular mid-week visits to which he was entitled, instead
depending on Mother to bring Child over to his house for many
short weekday visits as her class schedule allowed. And Father
did not exercise his right to a multi-week summertime visit in
2014, even though the stipulation entitled him to do so.
¶7 After nearly three years in Cedar City, Mother and Child
moved back to Boulder in April 2015, and at this point Father
began to regularly exercise the weekend parent-time and the
multi-week summertime visits to which the Decree entitled him.
Although Father did not exercise his mid-week visits due to the
distance between Cedar City and Boulder, he began to make
significant efforts to travel to Boulder to participate in important
events in Child’s life, such as school programs and dance
competitions, even when such events did not occur during his
weekend. After a while, Father was of the view that things were
going so well with his parent-time that he asked Mother if she
would agree to increasing the number of overnights he had with
Child, but Mother did not agree.
¶8 In November 2015, Father filed a petition to modify the
Decree, requesting that the court alter the custody arrangement
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to designate him, rather than Mother, as the primary physical
custodian. In the petition, among other things, Father argued
that a modification was warranted because Mother’s move to
Boulder in April 2015 constituted a substantial and material
change in circumstances because Father was no longer able to
see Child as often as he had when Mother was living in Cedar
City. Father also argued that Mother was not spending a
substantial amount of her parent-time with Child because she
was working two jobs that required her to leave Child in the
primary care of Child’s maternal grandmother. Mother opposed
Father’s petition, and eventually filed a counter-petition
requesting that the Decree be modified to remove redundant
material, clarify issues, and make minor alterations to the
parent-time schedule.
¶9 In November 2016, while the competing petitions were
pending, Mother notified Father that she intended to relocate
with Child to Las Vegas, Nevada. Mother proposed that the
parties continue to follow the parent-time schedule set forth in
the Decree until her move, at which point they should adopt the
parent-time schedule found in Utah Code section 30-3-37(6).
Father opposed Mother’s request, and asked the court to hold a
hearing to consider Mother’s proposed move. Father also asked
the court to appoint a custody evaluator to assess the parties’
situation, a request Mother opposed on the ground that no such
evaluation was necessary. Mother argued, in the alternative, that
if the court did appoint an evaluator, it should order Father to
pay all costs associated with the evaluation.
¶10 In early February 2017, Mother and Child relocated to Las
Vegas. Shortly thereafter, the court appointed a custody
evaluator (Evaluator) and ordered Father to front the costs
associated with the appointment, but stated that it would make a
final allocation of costs at a later date. The court also postponed
any hearing on Mother’s relocation to Las Vegas until after the
completion of the custody evaluation. Around this same time, in
early 2017, in addition to regularly exercising his weekend and
20171006-CA 4 2019 UT App 42LeFevre v. Mackelprang
summertime parent-time—which he had been doing since April
2015—Father began to travel to Las Vegas once a week to
exercise regular mid-week parent-time with Child.
¶11 Over the next few months, Evaluator conducted a number
of interviews with Father, Mother, and Child, as well as home
studies during which she observed Child. On November 1, 2017,
Evaluator issued her report, in which she recommended—with
one important qualification—that the status quo should
continue, with Mother acting as the primary residential parent
and with Father exercising parent-time on alternating weekends
and Wednesdays during the school year. The important
qualification was that, if Father were to move to Las Vegas so as
to be geographically closer to Mother and Child, she would alter
her recommendation and urge the court to adopt the alternative
parent-time schedule specified in Utah Code section 30-3-35.1
(section 35.1), which would result in Father having the right to
five overnights (instead of two) in every two-week period.
¶12 After learning of Evaluator’s recommendations, Father
almost immediately moved to Las Vegas. 1 Just a few weeks later,
1. Neither party contests the trial court’s continuing exercise of
jurisdiction over this case, even after both parties relocated to
Nevada. See Utah Code Ann. §§ 78B-13-201(1), 202, 207
(LexisNexis 2018); see also In re S.W., 2017 UT 37, ¶ 10, 424 P.3d 7(noting that a court that originally has exclusive and continuing
jurisdiction over a child custody matter may dismiss a case on
jurisdictional grounds if it finds, after certain criteria are met,
that it is “an inconvenient forum,” but may do so “only once a
child custody proceeding has been commenced in another state”
(quotation simplified)). Even if we were to assume that the
statutory criteria are met here given both parents’ relocation, see
Utah Code Ann. § 78B-13-202(1)(b), the trial court made no
finding that it was an inconvenient forum, and there is no
(continued…)
20171006-CA 5 2019 UT App 42LeFevre v. Mackelprang
in mid-November 2017, the court held a trial on the competing
petitions to modify. Evaluator testified about her report and
evaluation, and recommended that, because Father had
relocated to Las Vegas, the court should implement a custody
and parent-time arrangement based on section 35.1. She opined
that adopting section 35.1 would have a positive impact on Child
and the proposed schedule would not hurt the bond Child has
with Mother, but would strengthen the bond Child has with
Father by providing Child an opportunity to develop a structure
and routine with him during the additional mid-week and
weekend overnights. Evaluator further opined that the proposed
schedule would help reduce communication problems the
parties had been experiencing under the current schedule
because drop-offs during the school year would occur at school.
She also offered her observation that Father was a good parent
who since April 2015 had made significant efforts to spend
quality time with Child, and opined that Father’s parenting
actions over the past two-and-a-half years were more relevant
than his actions during the first six years of Child’s life.
¶13 Evaluator also recommended that Father’s summertime
parent-time should occur in one large block to reduce both the
number of transitions between the parents as well as the amount
of time Child spends in the car traveling back and forth from Las
Vegas to Utah. Finally, in an effort to reduce the frequency of
Father’s requests for virtual parent-time, Evaluator
recommended that Father’s video or phone chats with Child
should be held at scheduled times three days per week, and that
the parties’ email communications regarding Child be restricted
to a particular day per week to facilitate more predictable and
reliable communication.
(…continued)
indication, on the record before us, that any child custody
proceeding involving these parties has been initiated in Nevada.
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¶14 At the conclusion of the trial, and after hearing directly
from both Father and Mother, the trial court took the matter
under advisement. A few days later, the court issued a written
ruling on the petitions to modify, making a few changes to the
parties’ Decree. Among other alterations, the court ordered that
Father’s summertime parent-time be exercised in one large block
and that Father exercise virtual parent-time only during three
half-hour periods scheduled during the week. The court denied
all of Father’s other requests to alter the custody and parent-time
schedule, including Father’s request that parent-time during the
school year be implemented according to section 35.1.
¶15 On that point, the court determined that the four
prerequisites for implementation of the section 35.1 schedule
were not met, and made factual findings in support of that
conclusion, including the following: that Father “did not
participate actively in [Child’s] life until the last couple of years”;
that Father’s “plan to accomplish effective communication is to
have a designated email answering day per week” and that
Father’s “plan . . . does not appear to be adequate”; and that
Father “presented no evidence other than his hope” that
increased parent-time would be in Child’s best interest. From
these findings, the court made legal conclusions that Father “has
not adequately been involved in [Child’s] life”; that Father “has
failed to present a plan to accomplish effective communication”;
and that Father “has failed to present evidence that it will be in
[Child’s] best interest to have increased overnight visits.”
Because it considered the statutory prerequisites unsatisfied, the
trial court declined Father’s invitation to award him additional
parent-time under section 35.1.
¶16 The court also ordered Father to pay all costs related to
Evaluator’s report. Although it did not provide reasons for its
decision, it did note that Father “asked for the child custody
evaluation with the hope that somehow it would find in his
favor and it did not, so he should pay its entire cost.”
20171006-CA 7 2019 UT App 42LeFevre v. Mackelprang
ISSUES AND STANDARDS OF REVIEW
¶17 Father now appeals the trial court’s ruling on his petition
to modify, and asks us to review two aspects of that ruling.
Father’s main complaint is with the court’s decision not to
implement a parent-time arrangement based on section 35.1. We
review a trial court’s custody and parent-time determination for
abuse of discretion, and review any underlying factual findings
for clear error. See Vaughan v. Romander, 2015 UT App 244, ¶¶ 7–
8, 360 P.3d 761. “A finding is clearly erroneous only if the
finding is without adequate evidentiary support or induced by
an erroneous view of the law.” Hale v. Big H Const., Inc., 2012 UT
App 283, ¶ 9, 288 P.3d 1046 (quotation simplified).
¶18 Second, Father argues that the trial court abused its
discretion in ordering him to pay the entire cost of the custody
evaluation. When reviewing a court’s decision to allocate costs
pursuant to Utah Code section 30-3-3, “we use an abuse of
discretion standard.” Peterson v. Peterson, 818 P.2d 1305, 1310
(Utah Ct. App. 1991).
ANALYSIS
I
¶19 The main issue presented on appeal is whether the trial
court erred by concluding that the statutory prerequisites set
forth in Utah Code section 30-3-35.1(2) were not met. We find
infirmities in the trial court’s conclusions, and therefore
determine that remand is necessary.
¶20 “In all custody determinations, the [trial] 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). Our legislature has determined that each divorced
20171006-CA 8 2019 UT App 42LeFevre v. Mackelprang
parent “is entitled to and responsible for frequent, meaningful,
and continuing access with the parent’s child consistent with the
child’s best interests.” Utah Code Ann. § 30-3-32(2)(b)(ii)
(LexisNexis Supp. 2018). Relevant statutes prescribe a default
minimum parent-time schedule “to which the noncustodial
parent and the child shall be entitled,” id. § 30-3-35(2), unless
either (a) “the court determines that Section 30-3-35.1 should
apply” or (b) a parent can establish “that more or less parent-
time should be awarded,” id. § 30-3-34(2). Under the default
minimum parent-time schedule set forth in section 30-3-35, “the
noncustodial parent is entitled to parent-time with the child
during one weekday evening and on alternating weekends,
which include Friday and Saturday overnights.” Lay v. Lay, 2018
UT App 137, ¶ 6, 427 P.3d 1221. This default statutory schedule
affords the noncustodial parent two overnights in a typical two-
week period, and approximately ninety overnights during a
typical calendar year (after holiday and summertime parent-time
are accounted for).
¶21 As noted above, section 35.1 “provides an alternative
statutory parent-time schedule” that—by extending weekend
overnights by one night, and affording one weeknight overnight
each week—offers the noncustodial parent the opportunity to
enjoy five overnights in every two-week period, resulting in
approximately 145 overnights in a typical calendar year See id.
¶ 7; see also Utah Code Ann. § 30-3-35.1(1)(a) (stating that the
alternative schedule “is 145 overnights”).
¶22 A trial court may implement the alternative section 35.1
schedule only if “the parties agree or the noncustodial parent
can demonstrate” the presence of at least four 2 factual
2. The statutory list of elements is not intended to be exhaustive.
Indeed, the statute itself proclaims that the court may take into
account “any other factor the court considers relevant.” Utah
Code Ann. § 30-3-35.1(2)(e) (LexisNexis Supp. 2018).
20171006-CA 9 2019 UT App 42LeFevre v. Mackelprang
circumstances: (a) that “the noncustodial parent has been
actively involved in the child’s life”; (b) that either (i) “the
parties are able to communicate effectively regarding the child,”
or (ii) “the noncustodial parent has a plan to accomplish effective
communications regarding the child”; (c) that “the noncustodial
parent has the ability to facilitate the increased parent-time”; and
(d) that “the increased parent-time would be in the best interest
of the child.” Utah Code Ann. § 30-3-35.1(2). If all four of these
elements are present, then the trial court may—but is not
required to—implement the parent-time schedule set forth in
section 35.1. See id. (stating that “the court may consider” the
alternative schedule if the required factual elements are present);
see also Lay, 2018 UT App 137, ¶ 13 (stating that “the
noncustodial parent’s demonstration of the enumerated factors
gives the court the discretion to consider the increased parent-
time schedule, but there is no language in the statute making the
court’s consideration of that schedule—much less its adoption—
mandatory”).
¶23 In this case, the trial court determined that three of the
four statutory prerequisites were not present, and therefore
decided not to alter the parties’ parent-time arrangement
to afford Father additional parent-time. 3 Father argues that the
trial court’s determination is incorrect, and that all of the
necessary prerequisites were in fact present on the facts
presented at trial. In the discussion that follows, we examine
each of the three remaining statutory prerequisites and, for the
reasons set forth, we agree with Father that the trial court’s
analysis was infirm.
3. All parties, as well as the trial court, agreed that Father has the
ability to facilitate the increased parent-time, and that therefore
the third statutory prerequisite is satisfied. See id. § 30-3-
35.1(2)(c).
20171006-CA 10 2019 UT App 42LeFevre v. Mackelprang
A
¶24 The first of the three statutory requirements is that “the
noncustodial parent has been actively involved in the child’s
life.” Utah Code Ann. § 30-3-35.1(2)(a) (LexisNexis Supp. 2018).
Father contends that he presented evidence conclusively
demonstrating his active involvement in Child’s life. We agree.
¶25 At the outset of the discussion, it is important to note that
the trial court did not actually make a finding or a conclusion to
the contrary. The court’s specific finding was that Father “did
not participate actively in [Child’s] life until the last couple of
years,” implying that Father did participate actively in Child’s
life during the “couple of years” prior to trial. (Emphasis added.)
Indeed, the evidence presented to the court was overwhelming
that, starting in approximately April 2015, Father exercised
regular weekend and summertime parent-time according to the
ordered schedule, and that he made extra effort as necessary to
attend Child’s school functions and other celebrations in her life,
even when those occurred outside his customary scheduled
parent-time. 4
4. Subsection (3) of section 35.1 provides factors that courts
“shall consider” in determining whether a parent has been
actively involved in a child’s life. See id. § 30-3-35.1(3). Those
factors include whether the parent has “demonstrated
responsibility in caring for the child”; whether the parent has
“involvement in day care”; whether the parent has a “presence
or volunteer efforts in the child’s school and at extracurricular
activities”; whether the parent assists the child with homework,
and whether the parent is involved in “preparation of meals,
bath time, and bedtime for the child”; and whether the parent
has a strong bond with the child. Id. In this case, the trial court’s
findings reveal no effort to apply these factors. In any event, as
noted, the evidence clearly supports the conclusion that these
(continued…)
20171006-CA 11 2019 UT App 42LeFevre v. Mackelprang
¶26 From this evidence, however, the trial court concluded
that Father “has not adequately been involved in” Child’s life. In
our view, this conclusion is not supported by the evidence
presented, and is in any event not the conclusion required by the
statute. Indeed, the word “adequately” does not appear in the
statute, which instead asks the court to determine whether
Father has been “actively” involved in Child’s life. See id. As
noted above, at least for the thirty months prior to trial, Father
was actively involved in Child’s life, as the trial court impliedly
found.
¶27 The only sensible explanation for the trial court’s
conclusion is that the court was looking primarily at Father’s
actions during the first six years of Child’s life, a period in which
Father was not nearly as involved in Child’s life as he was
during the thirty months leading up to trial. The relevant statute
does not indicate whether a court should weigh recent behavior
more heavily, and we certainly acknowledge that a parent
who—in true “deathbed repentance” fashion—has been active in
his child’s life for only a few days or weeks before trial may
comfortably be considered to have not been actively involved in
his or her child’s life, when that life is examined as a whole. But
a parent who has—even in the eyes of his ex-spouse—been
actively involved in his daughter’s life for the thirty-month
period leading up to trial has clearly been “actively involved” in
her life, and any finding or conclusion to the contrary is clearly
erroneous and an abuse of discretion.
¶28 Accordingly, we agree with Father that he satisfied the
first statutory prerequisite.
(…continued)
factors weigh in favor of Father, at least for the thirty-month
period prior to trial: Father had a strong bond with Child,
demonstrated responsibility for Child’s care, and had a presence
at Child’s extracurricular and school activities.
20171006-CA 12 2019 UT App 42LeFevre v. Mackelprang
B
¶29 Next, the statute requires that Father demonstrate either
(i) that “the parties are able to communicate effectively
regarding the child,” or (ii) that he “has a plan to accomplish
effective communications regarding the child.” Utah Code Ann.
§ 30-3-35.1(2)(b) (LexisNexis Supp. 2018). The trial court found
that “[t]here is little meaningful communication between the
parties,” and concluded that “[t]he parties do not communicate
effectively.” Father does not challenge these determinations, and
thereby concedes that he cannot meet the first statutory
alternative. However, Father asserts that he presented a plan to
address the parties’ communication issues, and argues that he
can therefore meet the second statutory alternative. We agree.
¶30 The relevant statute requires only that Father present a
plan for improved communication to the court; it does not
require that Father’s plan be foolproof or even that Father’s
plan—or any part of it—be adopted by the court. The statutory
language requires only that the parent present a “plan to
accomplish effective communication,” see id. § 30-3-35.1(2)(b),
and Father did so here.
¶31 At trial, Father adopted and advocated for the
communication plan recommended by Evaluator, which
included several features designed to address the
communication problems that the parties were experiencing.
Among those were (a) limiting email communication between
the parties to a “designated email day” on which both parents
would be available to electronically express and respond to
concerns regarding Child; (b) limiting Father’s virtual parent-
time to three designated half-hour periods scheduled
throughout the week, thereby limiting any ad hoc demands
Father might make to speak with Child; and (c) maximizing the
number of pickups and drop-offs that would occur at Child’s
school rather than at Mother’s residence, thereby reducing the
number of times Mother and Father saw each other.
20171006-CA 13 2019 UT App 42LeFevre v. Mackelprang
¶32 The trial court ended up adopting one of these three
recommendations in its ruling, in that it limited Father’s virtual
parent-time to three scheduled half-hour periods each week. The
court did not adopt the other two parts of this plan, perhaps in
part because Mother expressed dislike for the “designated email
day” idea, but the fact that the court declined to adopt Father’s
plan in total does not mean that he did not have one. Indeed, the
trial court itself referred to “[Father’s] plan” in its findings, later
judging that plan to be inadequate. But an inadequate plan is
still a plan, and the statute imposes no requirement that the plan
be found by the court to be adequate. See id.¶33 Under these circumstances, the trial court abused its
discretion by concluding that Father “failed to present a plan to
accomplish effective communication.” Father presented a plan
for improved communication to the trial court, and thereby
satisfied the second statutory prerequisite.
C
¶34 Finally, the statute requires that implementation of the
alternative parent-time schedule would be “in the best interest of
the child.” Utah Code Ann. § 30-3-35.1(2)(d) (LexisNexis Supp.
2018). Ordinarily, we afford a high degree of deference to a trial
court’s “best interest” determination. See Vaughan v. Romander,
2015 UT App 244, ¶ 8, 360 P.3d 761 (stating that a trial court “has
the discretion to establish parent-time in the best interests of the
children,” and that a trial court’s “parent-time order” is
reviewed for abuse of discretion (quotation simplified)). But
here, the trial court did not engage in a traditional “best interest”
analysis by weighing the evidence presented by each side and
coming to a decision. Instead, the trial court stated flatly that
Father had “presented no evidence other than his hope” that
increased parent-time would benefit Child, and concluded that
Father “failed to present evidence that it will be in [Child’s] best
interest to have increased overnight visits.”
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¶35 These statements are simply incorrect. Father presented
quite a bit of evidence supporting his view that increased parent-
time would be in Child’s best interest. Most significantly, Father
presented the expert testimony of Evaluator, who offered her
reasoned professional opinion that the best thing for Child—
now that Father had relocated to Las Vegas and was closer to
Mother and Child—would be for the court to implement the
alternative parent-time schedule set forth in section 35.1. In
addition, Father offered his own testimony along those same
lines, and even cajoled Mother into acknowledging that Father
was “a good father” and that she was in favor of Father and
Child spending more time together (with the proviso that she
preferred that the extra parent-time take place in the
summertime, to cut down on the number of exchanges during
the school year).
¶36 The trial court was certainly free to decline to credit
Father’s evidence, and to give it less weight than Mother’s
evidence. 5 Had it done so here, and articulated supported
reasons for its decision, we undoubtedly would have affirmed
that determination. But a trial court is not free to completely
ignore a litigant’s evidence by making a “finding” that there is
no such evidence when in fact there is.
¶37 Under these unique circumstances, we are not yet able to
determine whether Father can (or cannot) satisfy the fourth
statutory prerequisite. But the trial court’s stated reasons for
rejecting Father’s position are unsupported, and are clearly
erroneous and an abuse of discretion. We therefore must remand
the case for further proceedings on this point, and specifically for
the trial court to consider all of the evidence presented and to
5. But if a trial court declines to adopt the recommendation of a
custody evaluator, “the court is expected to articulate some
reason for rejecting that recommendation.” Zavala v. Zavala, 2016
UT App 6, ¶ 44, 366 P.3d 422 (quotation simplified).
20171006-CA 15 2019 UT App 42LeFevre v. Mackelprang
make a determination as to whether increased parent-time as per
section 35.1 would be in Child’s best interest. Because all of the
other prerequisites are met, if the trial court finds, on remand,
that the “best interest” prerequisite is also met, the trial court
will then be permitted to exercise its discretion, if it so chooses,
to implement the alternative parent-time schedule. See Utah
Code Ann. § 30-3-35.1(2) (stating that, if the statutory
prerequisites are met, the court “may consider” the increased
parent-time schedule); see also Lay v. Lay, 2018 UT App 137, ¶ 13,
427 P.3d 1221. (stating that, even where all of the statutory
prerequisites are met, a trial court is not required to implement
the alternative schedule, but may do so in its discretion).
II
¶38 The second issue Father raises on appeal is whether the
trial court abused its discretion in ordering him to pay the entire
cost of Evaluator’s report. In a case like this one, in which one
party brings an action to establish an order of custody or parent-
time, the trial court is statutorily authorized to make an award of
costs. See Utah Code Ann. § 30-3-3(1) (LexisNexis 2013) (stating
that “in any action to establish an order of custody [or] parent-
time, . . . the court may order a party to pay the costs, . . .
including expert witness fees, of the other party to enable the
other party to prosecute or defend the action”). We have
previously recognized that the relevant statute “is worded so as
to afford divorce litigants a broader award of reimbursement, if
need be, for the expenses of litigation, than those
reimbursements authorized in other civil cases” in which costs
are allocated according to who prevailed. Peterson v. Peterson, 818
P.2d 1305, 1310 (Utah Ct. App. 1991) (quotation simplified). 6 This
6. This standard also differs from the standard for awarding
costs and fees in actions brought “to enforce” an already-
established order in a domestic case. See Utah Code Ann. § 30-3-
(continued…)
20171006-CA 16 2019 UT App 42LeFevre v. Mackelprang
rule is particularly appropriate in family law cases where many
of the costs, including the cost of custody evaluations, relate to
the best interests of the child and enable the court to make a
reasoned determination on these important issues. See id.¶39 While section 30-3-3(1) “empowers a court to use its
sound discretion in determining whether to award costs based
on need and ability to pay,” id., “the award or denial of such fees
must be based on evidence of the financial need of the receiving
spouse, the ability of the other spouse to pay, and the
reasonableness of the requested fees,” Wilde v. Wilde, 969 P.2d
438, 444 (Utah Ct. App. 1998) (quotation simplified). “Failure to
consider these factors is grounds for reversal on the fee issue.”
Id.¶40 Here, the trial court ordered each party to pay their own
attorney fees and costs, but ordered Father to pay the entire cost
of the custody evaluation. However, there is no indication in the
court’s order that it considered the factors identified in Wilde, see
id., including the parties’ financial ability to pay; indeed, the
court gave no reasons at all for its decision to require Father to
pay the entire cost of Evaluator’s report, other than to note that
(…continued)
3(2) (LexisNexis 2013). In enforcement cases, the standard is
similar to the one ordinarily used in civil cases: courts are
authorized to award fees to “the party [that] substantially
prevailed upon the claim or defense.” Id. In such cases, a trial
court “may disregard the financial need of the moving party”
because awards under this subsection “serve no equalizing
function but allow the moving party to collect fees unnecessarily
incurred due to the other party’s recalcitrance.” Connell v.
Connell, 2010 UT App 139, ¶¶ 28, 30, 233 P.3d 836 (quotation
simplified). Thus, the “guiding factor” when awarding costs
under subsection (2) is “whether the party seeking an award of
fees substantially prevailed on the claim [or defense].” Id. ¶ 28.
20171006-CA 17 2019 UT App 42LeFevre v. Mackelprang
Father “asked for the child custody evaluation with the hope
that somehow it would find in his favor and it did not, so he
should pay its entire cost.” 7
¶41 This conclusion is both inaccurate and contrary to the
governing statute. Although Evaluator did not recommend that
primary physical custody be changed from Mother to Father,
Evaluator did recommend that Father be awarded additional
parent-time if he moved to Las Vegas, which he did prior to trial.
Accordingly, Evaluator’s recommendation at trial was that a
parent-time schedule in accordance with section 35.1 should be
implemented, which recommendation was in line with Father’s
ultimate request at trial. In addition, the court’s conclusion that
Father should pay the entire cost of the custody evaluation
because the evaluation did not “find in his favor” is inconsistent
with a proper subsection (1) analysis. As discussed above, while
subsection (1) gives the trial court discretion in determining
whether to award the costs of expert witness fees, an award of
such fees must be based upon the parties’ ability to pay and the
reasonableness of the fees, and not upon which party ultimately
prevails. See Utah Code Ann. § 30-3-3(1); Wilde, 969 P.2d at 444.
But instead of applying these factors, see Wilde, 969 P.2d at 444,
the trial court appears to have erroneously allocated the cost of
7. We do not mean to suggest that a court, when deciding how to
allocate the costs of a custody evaluation, is forbidden from
taking into account the identity of the party who asked for the
evaluator to be appointed. In many cases, potentially including
this one, that fact might be relevant to any determination about
whether the costs are “reasonable.” See Wilde v. Wilde, 969 P.2d
438, 444 (Utah Ct. App. 1998). In appropriate cases, a court may
even condition the grant of a motion to appoint a custody
evaluator upon the movant paying the entire cost of the
evaluation. In this case, however, that does not appear to be
what the trial court did.
20171006-CA 18 2019 UT App 42LeFevre v. Mackelprang
the custody evaluation by applying the “substantially prevailed”
standard found in subsection (2), which is applicable only in
actions to enforce—but not to establish—custody or parent-time
arrangements, see Utah Code Ann. § 30-3-3(2).
¶42 Here, there is no indication that the trial court considered
the appropriate factors. The absence of any such findings
prevents a meaningful review of the trial court’s ruling, and we
therefore remand the issue for further analysis. See Wilde, 969
P.2d at 444 (remanding the issue of fees and costs for
reconsideration in light of the trial court’s failure to consider the
needs of the parties and their ability to pay).
CONCLUSION
¶43 The trial court incorrectly—and prematurely—concluded
that the statutory prerequisites to considering the section 35.1
parent-time schedule were not met in this case. The first three
statutory prerequisites were in fact met, and the trial court’s
ruling to the contrary was clearly erroneous. Also, the court
incorrectly found that Father had submitted “no evidence” in his
favor with regard to the fourth prerequisite. In addition, the trial
court’s decision to order Father to pay all costs associated with
Evaluator’s report appears to have been grounded in an
inaccurate factual assumption as well as made pursuant to the
incorrect statutory subsection. The trial court’s ruling with
regard to parent-time and costs is hereby vacated, and this
matter is remanded for further proceedings consistent with this
opinion.
20171006-CA 19 2019 UT App 42