Brown v. Babbitt
364 P.3d 60
Utah Ct. App.2015Background
- Babbitt and Brown divorced after a short marriage; the trial court awarded Brown sole physical and legal custody of their child based on a custody evaluator’s negative assessment of Babbitt.
- The divorce decree ordered Babbitt to complete a specific post-decree psychotherapy regimen with one of several named therapists and to provide the therapist a copy of the court’s findings; completion was a condition for increased/unsupervised parent-time.
- Babbitt filed a Rule 52(b) motion challenging many adverse findings and later alleged Brown perjured herself about her residency (Arizona vs. North Carolina) and that her move to North Carolina warranted modification of custody/parent-time.
- The trial court initially declined to relitigate findings at the Rule 52(b) hearing; Babbitt later obtained an evidentiary hearing on the perjury/residency and modification claims.
- At the August 2014 hearing Babbitt submitted a therapist’s letter dated before the decree and from a non-approved therapist; the court found the letter deficient and concluded Babbitt had not complied with the decree’s therapy requirements.
- The trial court denied modification of custody, found no material change justifying modification (or that modification would be in the child’s best interest), and reduced Babbitt’s scheduled parent-time (kept twice/month totaling six hours) until the court is satisfied with his therapy.
Issues
| Issue | Babbitt's Argument | Brown's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that Brown did not perjure herself about residency | Brown perjured herself (residency misrepresented); factual finding unsupported | Trial court’s findings were supported by evidence that Brown traveled and had ties to multiple states | Court affirmed: record supports trial court’s finding that Brown did not commit perjury |
| Whether Brown’s alleged perjury is a material/substantial change warranting custody modification | Perjury would be a material change undermining custody basis | Even if perjury occurred, it is not a material change nor shown to improve child’s welfare if modification granted | Court affirmed: perjury (even if proven) did not constitute a material change justifying modification |
| Whether Brown’s move to North Carolina is a material change justifying modification | Move constitutes a substantial change requiring custody/parent-time review | Move does not, by itself, show a material change that would improve the child’s welfare if custody altered | Court affirmed: move did not establish a material change meriting modification and Babbitt failed to show modification would benefit child |
| Whether reduction of Babbitt’s parent-time (and process used) violated open courts or due process | Reduction occurred without adequate testimony/briefing and violated open-courts and due process rights | Babbitt failed to comply with court-ordered therapy; deficient therapist letter showed bad faith; court had discretion to reduce parent-time and provided opportunity for future restoration upon compliance | Court affirmed: no due process/open-courts violation; reduction was within discretion given Babbitt’s noncompliance and misleading submission |
Key Cases Cited
- IHC Health Servs., Inc. v. D & K Mgmt., Inc., 196 P.3d 588 (Utah 2008) (law-of-the-case doctrine explanation)
- Thurston v. Box Elder County, 892 P.2d 1034 (Utah 1995) (law-of-the-case doctrine authority)
- Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983) (due process requires procedures appropriate and fair to the parties)
- Rupp v. Grantsville City, 610 P.2d 338 (Utah 1980) (statement on due process fairness)
- Clark Props., Inc. v. JDW-CM, LLC, 282 P.3d 1009 (Utah Ct. App. 2012) (party must contemporaneously object when surprised by court procedure)