LeFevre v. Mackelprang
2019 UT App 42
| Utah Ct. App. | 2019Background
- Parents divorced in 2014; one minor child. Decree (from a 2013 stipulation) named Mother primary custodian and granted Father alternating weekends and one midweek visit (approx. two overnights per two-week period).
- Mother moved to Boulder in 2015; Father began exercising regular weekend and summer parenting time and increased involvement (attending events, traveling). Mother later moved with child to Las Vegas in Feb 2017.
- Father petitioned to modify custody/parent-time to be primary custodian or, alternatively, to increase overnights under Utah Code § 30-3-35.1 to the alternate schedule (five overnights per two-week period).
- Trial court appointed a custody evaluator; evaluator recommended maintaining primary custody with Mother but recommended the § 35.1 schedule if Father moved to Las Vegas (which he soon did). Evaluator also recommended one-block summer time and scheduled virtual contact.
- Trial court denied Father’s request to adopt the § 35.1 schedule, finding statutory prerequisites unmet (including that Father was not ‘‘actively involved’’ and lacked an adequate communication plan), and ordered Father to pay the full cost of the custody evaluation without articulating Wilde factors.
- On appeal, the Utah Court of Appeals found the trial court’s factual conclusions infirm in three respects, vacated the order, and remanded for reconsideration consistent with the opinion.
Issues
| Issue | Father (Appellant) Argument | Mother (Appellee) Argument | Held |
|---|---|---|---|
| Whether the trial court erred in finding the § 30-3-35.1 prerequisites unmet (to consider alternate parent-time) | Father said he satisfied the four statutory prerequisites: (1) active involvement (noting ~30 months of regular exercise and engagement), (2) presented a plan for effective communication (adopting evaluator’s plan), (3) ability to facilitate increased time, (4) increased time is in child’s best interest (supported by evaluator) | Mother emphasized earlier periods when Father was less involved and disputed adequacy of Father’s communication plan; opposed evaluator in part | Court of Appeals: trial court erred. Father satisfied the active-involvement and plan-to-communicate prerequisites; trial court improperly characterized evidence and ignored evaluator testimony on best interest. Remanded for proper consideration of best-interest factor and full record. |
| Whether the trial court properly weighed expert (evaluator) recommendations | Evaluator recommended § 35.1 schedule given Father’s move; Father relied on evaluator’s opinion that increased time would benefit child | Mother opposed some evaluator proposals and questioned parts of the plan | Court of Appeals: trial court cannot ignore or say there is “no evidence” when evaluator provided direct recommendations; if trial court rejects evaluator it must articulate reasons. Remanded for the court to consider evaluator testimony and explain any rejection. |
| Whether Father should have been ordered to pay entire cost of custody evaluation | Father challenged allocation as made without considering financial need, ability to pay, or reasonableness per Wilde v. Wilde | Mother argued Father requested the evaluation and it did not ‘‘find in his favor,’’ so he should pay | Court of Appeals: trial court applied wrong rationale and statutory subsection; failed to consider Wilde factors (need, ability to pay, reasonableness). Remanded for reconsideration of cost allocation with required findings. |
| Standard of review applied to custody/parent-time and fee allocation | N/A | N/A | Court reiterated abuse-of-discretion for custody/parent-time and for allocation under Utah Code § 30-3-3, and clear-error for underlying factual findings. |
Key Cases Cited
- Vaughan v. Romander, 360 P.3d 761 (Utah Ct. App.) (abuse-of-discretion standard for custody/parent-time)
- Pingree v. Pingree, 365 P.3d 713 (Utah Ct. App.) (best-interests primary focus in custody determinations)
- Lay v. Lay, 427 P.3d 1221 (Utah Ct. App.) (explaining default § 30-3-35 schedule and § 30-3-35.1 alternative)
- In re S.W., 424 P.3d 7 (Utah) (jurisdictional principles for continuing jurisdiction in custody matters)
- Peterson v. Peterson, 818 P.2d 1305 (Utah Ct. App.) (statutory authority to award costs in custody/parent-time actions)
- Wilde v. Wilde, 969 P.2d 438 (Utah Ct. App.) (fees/costs must consider need, ability to pay, and reasonableness)
- Zavala v. Zavala, 366 P.3d 422 (Utah Ct. App.) (trial court should articulate reasons when rejecting evaluator recommendations)
- Connell v. Connell, 233 P.3d 836 (Utah Ct. App.) (distinguishing fee allocation standards between establishing custody and enforcement actions)