R.B. v. L.B.

2014 UT App 270
_________________________________________________________

THE UTAH COURT OF APPEALS

R.B.,
Petitioner and Appellant,
v.
L.B.,
Respondent and Appellee.

Opinion
No. 20130188-CA
Filed November 14, 2014

Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 064401209

R.B., Appellant Pro Se

Steve S. Christensen and David M. Corbett,
Attorneys for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGE J.
FREDERIC VOROS JR. and SENIOR JUDGE JUDITH M. BILLINGS
concurred.1

PEARCE, Judge:

¶1 This case involves a child custody agreement made by
divorcing parents. The agreement contemplated that L.B.

1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
 R.B. v. L.B.

(Mother) would have custody of their minor son (Child) until he
entered the seventh grade. The parties agreed that at that point:
(1) a custody evaluator would assess whether a change in
custody to R.B. (Father) remained in Child’s best interest, (2) the
‚legal presumption‛ would be that a change in custody would
be in Child’s best interest unless the evaluator determined
otherwise, and (3) custody would transfer to Father for Child’s
seventh, eighth, and ninth grade years if ‚the transfer of custody
is determined to be in *Child’s+ best interest.‛ When the time for
the change of custody approached, Mother challenged the
validity of the agreement. The district court found that the
agreement was valid but conducted an evidentiary hearing to
determine whether the custody switch would be in Child’s best
interest. At the hearing, the custody evaluator testified that the
change of custody would be in Child’s best interest. The district
court disagreed and left custody with Mother. Father appeals.
We affirm.

BACKGROUND

¶2 This case is born of a contentious divorce. Father and
Mother each sought custody of Child after they filed for divorce
in 2006. This was, the district court observed, a ‚high conflict
case‛:

While many titles could be attributed to the case, it
is and has evidently always been a high conflict
case. Before the [divorce] decree, there were
numerous hearings before the commissioner,
objections to the recommendations of the
commissioner, motions to reconsider the
commissioner’s orders, motions for contempt,
discovery disputes, motions for discovery
sanctions, motions to compel, motions for Rule 11
sanctions, accusatory affidavits, allegations of
abuse and child abuse, numerous temporary
orders, motions to transfer jurisdiction to
Kentucky, requests for communication with the

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 R.B. v. L.B.

Kentucky courts, disputes about a custody
evaluation, a Rule 60(b) motion for relief from an
order denying bifurcation, motions to disqualify
counsel . . . , disputes about GAL fee allocation,
motions to strike pleadings as untimely, a motion
for [a temporary restraining order] . . . alleging
[Mother] was trying to get [Father] dismissed from
his job . . . , allegations by [Father] against the two
female commissioners who have been assigned on
this case of sexual discrimination against [Father],
and changes of counsel.

¶3 On October 26, 2009, the parties attended a statutorily
mandated mediation conference and reached a stipulated
agreement on the issue of custody, which the then-assigned
district court judge memorialized in the December 2009 divorce
decree:

3. The parties are awarded joint legal custody of
the minor child with the terms set forth in the Joint
Legal Custody Parenting Plan annexed hereto as
Exhibit A and incorporated as if set forth fully
herein. [Mother] is awarded sole physical custody
of the parties’ minor child subject to *Father’s+ right
to parent-time according to the Joint Legal Custody
Parenting Plan. [Mother] shall retain physical
custody of the minor child until he begins the
seventh grade at which time custody will be
transferred to [Father]. Prior to the change of
custody, the following shall occur:
a. At the beginning of the minor child’s sixth grade
school year, the parties will retain Dr. Heather
Walker to evaluate whether the change in custody
is still in the best interest of the minor child. The
legal presumption will be that the change of
custody is in the child’s best interest unless
determined otherwise by Dr. Walker. If Dr. Walker
is unavailable to perform the evaluation then the
parties shall retain Dr. Val Hale or Dr. Denise

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 R.B. v. L.B.

Goldsmith in that order. The cost for the evaluation
shall be divided between the parties.
b. If the transfer of custody is determined to be in
the child’s best interest, physical custody will
transfer to [Father] at the beginning of the minor
child’s seventh grade year for seventh, eighth and
ninth grade. After the ninth grade, the minor
child’s input will be taken into consideration
regarding the ongoing custody arrangements.

Mother and Father abided by the terms of the agreement for
several years, during which time Child lived in Kentucky with
Mother but visited Father in Utah.

¶4 The agreement required that the follow-up custody
evaluation be performed in the summer of 2012. However, in
February 2012, Mother moved for relief from the custody
provisions pursuant to rule 60(b)(6) of the Utah Rules of Civil
Procedure. See Kallas v. Kallas, 614 P.2d 641, 645 (Utah 1980)
(‚Trial courts have continuing jurisdiction to consider motions to
modify dealing with child custody and visitation rights.‛). She
alleged that the provisions were void as against public policy
because they included an automatic transfer of custody. In the
intervening years, the case had been reassigned to a second
judge. The second judge ruled that the agreement’s custody
provisions were enforceable because the transfer of custody was
not automatic. The second judge ordered that a custody
evaluation be performed and that, once it was completed, the
court would conduct ‚a further evidentiary hearing . . . in order
for the Court to determine ultimately what is in the best interest
of the minor child.‛ The case was then reassigned to two other
judges before a fifth judge, whose ruling is the subject of this
appeal, was assigned to the case.

¶5 The fifth judge presided at a two-day evidentiary hearing
on December 11, 2012, and December 19, 2012. The custody
evaluator, Dr. Walker, opined that Child’s best interest would be
served by living with Father. The district court allowed two of
Mother’s witnesses to testify via videoconference. It then issued

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 R.B. v. L.B.

a forty-page memorandum decision in which it concluded that
Child’s ‚best interests now lie in his stable situation, improving
school [performance,] and friends, and where he has lived all but
10 months of his life.‛ Accordingly, the district court allowed
Mother to retain custody of Child.2 Father appeals.

ANALYSIS3

I. Custody Provisions

A. The District Court Did Not Rule That the Custody
Agreement Was Void as Against Public Policy.

¶6 Father first asserts that the district court erroneously
concluded that the custody agreement was contrary to public
policy and therefore unenforceable. He concedes that parties to a
contract are not bound by contractual terms that clearly violate
public policy. See Ockey v. Lehmer, 2008 UT 37, ¶ 19, 189 P.3d 51
(‚*C+ontracts that offend public policy or harm the public are
void ab initio.‛); see also id. ¶ 21 (‚For a contract to be void on the
basis of public policy, there must be a showing free from doubt
that the contract is against public policy.‛ (citation and internal
quotation marks omitted)). He argues, however, that the change-
of-custody provisions were not clearly against public policy and

2. In the December 24, 2012 decision, the district court noted that,
under the terms of the divorce decree, the parties could relitigate
‚ongoing custody arrangements‛ in 2015 and that ‚the case is
now set up and on target for another lengthy, conflicted hearing
in two and half years over where the child will live at that time.‛
The court urged the parties to ‚work diligently to avoid putting
the child through this *again+ in two and a half years.‛

3. Father raises numerous issues on appeal; for clarity, we
identify the appropriate standard of review for each issue in the
section of our analysis addressing that issue.

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 R.B. v. L.B.

that the district court therefore erred in ruling that the parties
were not bound by them.

¶7 The district court did not, however, rule that the
agreement was unenforceable. Nor did it find that the agreement
violated public policy. Instead, it noted that the agreement would
be contrary to public policy if it divested the court of its ability to
perform its statutory duty of ensuring that the custody
arrangement was in the best interest of the child. The court
analyzed the agreement and described its provisions as ‚a bit
ambiguous‛ because one subsection implied that the evaluator
would merely give input to the court while another implied that
the evaluator would make the best-interest determination.4 The
district court ultimately ruled that the agreement did not
contemplate a ‚self-executing‛ custody change and that ‚it is a
court determination, not the evaluator’s determination, which
must be made concerning best interests.‛

¶8 Father does not directly attack the court’s interpretation of
the agreement. Instead, Father asserts, ‚The court gave no legal
effect to the parties’ agreement to bind themselves to the
evaluator’s professional opinion . . . .‛ (Emphasis in original.) The
flaw in his argument is that the district court interpreted the
language ‚If the transfer of custody is determined to be in the
child’s best interest‛ to mean the parties intended the district
court to make that determination based upon input the evaluator
provided. Father does not explain how the district court misread
the custody agreement, but instead characterizes the ruling as
voiding the agreement on public policy grounds. 5 Because the

4. Neither party has argued that the agreement’s language was
ambiguous, nor did Father or Mother seek to introduce extrinsic
evidence of the parties’ intent.

5. Father does not argue that the district court failed to
give appropriate attention to the agreement’s ‚legal
(continued...)

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 R.B. v. L.B.

district court never ruled that the agreement was void as against
public policy, Father’s argument that such a ruling was error
necessarily fails.

B. Even If the Agreement Did Not Contemplate District
Court Review, the District Court Retained the Authority
to Make a Best-Interest Determination.

¶9 Even if we were to assume that the district court misread
the agreement and inserted itself into the custody evaluation
contrary to Mother and Father’s intent, the district court did not
err by ruling that it had the statutory authority to conduct a best-
interest analysis. Whether the district court correctly applied a
statute is a question of law; accordingly, we review the district
court’s interpretation for correctness. See Estes v. Tibbs, 1999 UT
52, ¶ 4, 979 P.2d 823.

¶ 10 Father asserts that the district court should have been
‚extremely reluctant to set aside prior judgments, even *one that
was] stipulated,‛ and that the court consequently should not
have modified the 2009 change-of-custody provisions. Father
concedes that ‚certain circumstances, especially given the court’s
continuing jurisdiction over custody, may warrant modification
of a judgment‛ but asserts that the district court erred in
intervening here. This raises the question of the extent to which
parties can enter into custody agreements that purport to limit a
district court’s review.

¶ 11 Father’s argument quotes extensively from this court’s
opinion in In re adoption of E.H., 2004 UT App 419, 103 P.3d 177,
which he asserts is the most analogous case. But see In re E.H.,
2006 UT 36, 137 P.3d 809 (rejecting the court of appeals’
reasoning in that case and remanding it for further findings).
That case involved a dispute between a birth mother and the

presumption . . . that the change of custody is in the child’s best
interest unless determined otherwise by Dr. Walker.‛

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 R.B. v. L.B.

couple who adopted her child. In re adoption of E.H., 2004 UT
App 419, ¶¶ 2–9. After the birth mother lived with the adoptive
parents, she came to believe that she had been misled about the
adoptive family and developed serious misgivings about the
adoption. The birth mother filed a petition to regain custody of
her child; the adoptive parents filed a petition for adoption.
Ultimately, the parties stipulated to a resolution of their dispute
that provided for an evaluation by a clinical psychologist,
who would determine questions of both custody and visitation.
The parties agreed to be bound by the psychologist’s
recommendation, which the parties stipulated would be entered
as a final judgment of the court without further proceedings.
Based upon the stipulation, the district court entered an order
memorializing its terms. See id.

¶ 12 The psychologist concluded that the child should be
returned to the birth mother. The adoptive parents challenged
the enforceability of their stipulation. The district court judge
who had entered the original order had since retired, and the
judge to whom the case had been reassigned voided the
stipulation, concluding that the court ‚does not believe it is in
the best interest of the baby to enforce the stipulation.‛ Id. ¶¶ 9,
11 (internal quotation marks omitted).

¶ 13 This court overturned that decision and upheld the
stipulation. Id. ¶ 32. We reasoned that ‚the stipulation of the
parties waiving their respective claims and defenses and
indicating they would be bound by the recommendations of the
evaluator, and the court’s approval of the arrangement, did
restrict the usually unfettered prerogative of the court to ignore a
mere recommendation.‛ Id. ¶ 19. We also noted that the district
court could have deviated from the recommendations if the
psychologist had ‚conducted the evaluation in a manner that
subverted the best interests of the child, departed from the best
practices in custody and adoption studies and evaluations,
deviated from counsel’s specific requests, or otherwise varied
from the provisions of the stipulation.‛ Id. ¶ 19 n.8. Our holding
could support the view that absent a showing of some
irregularity in a recommendation’s preparation, a district court

20130188-CA 8 2014 UT App 270
 R.B. v. L.B.

must enforce the parties’ stipulated custody-determination
procedure.

¶ 14 However, Father’s reliance on our ruling in In re adoption
of E.H. is severely, if not completely, undercut by the Utah
Supreme Court’s subsequent decision in the same matter.6 See In
re E.H., 2006 UT 36. The supreme court affirmed our holding that
the district court erred in setting the stipulation aside, but
criticized our reasoning. Specifically, the supreme court stated
that ‚*we do+ not believe that [the district court] was obliged to
summarily enforce [the stipulation,] and to this extent, we depart
from the court of appeals’ decision.‛ Id. ¶ 19. The supreme court
‚agree[d] with the court of appeals’ conclusion that the
stipulation between the mother and the adoptive parents did not
unconstitutionally strip the district court of core functions
because the district court did not surrender to [the psychologist]
its authority to enter a custody order.‛ Id. ¶ 21. The supreme
court determined that ‚the court merely agreed to follow a
process for the determination of the best interests of E.H. and to
uphold this process so long as it adequately served that end.‛ Id.
The supreme court further held that even when the parties in a
custody dispute agree to be bound by an evaluator’s findings,
the district court retains ‚the ultimate authority to preside over
the proceedings, to satisfy itself that *the evaluator’s+
recommendations were properly arrived at, and to enter a final
order.‛ Id. ¶ 28. The supreme court ultimately upheld the
stipulation because the parties’ arrangement ‚adequately served
[the+ end‛ of determining E.H.’s best interest and the district
court had ‚satisf*ied+ itself that *the psychologist’s+
recommendations were properly arrived at.‛ Id. ¶¶ 21, 28.

¶ 15 Since the supreme court’s decision in In re E.H., this court
has had another opportunity to consider the deference a district
court owes to an automatic change-of-custody stipulation. See

6. Father’s opening brief does not the existence of the supreme
court’s decision.

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 R.B. v. L.B.

Taylor v. Elison, 2011 UT App 272, 263 P.3d 448. In Taylor, the
district court was presented with dueling petitions for
temporary modification of custody. Id. ¶ 4. The divorcing
parents had agreed that if the mother, who was awarded initial
custody, moved out of state, custody would transfer
automatically to the father. Id. ¶¶ 2, 10. That agreement was
memorialized in the divorce decree. Id. The district court
enforced the change-of-custody provision without conducting a
best-interest analysis, reasoning that the parties had
contemplated the move and that therefore there had been no
change in circumstances that would trigger its ability to conduct
such an inquiry.7 Id. ¶ 15. We reversed and remanded with
instructions to the district court that it analyze whether the
change in custody was in the childrens’ best interests. We noted
that the ‚district court’s decision was . . . focused on the letter of
the divorce decree rather than on the actual circumstances of the
children’s custodial arrangement‛ and that ‚[a]lthough perhaps
technically correct in that it made no change in the provisions of
the decree, the district court’s decision resulted in a very real
‘modification of custody’ from the children’s perspective.‛ Id.
¶ 19.8

¶ 16 The instruction of the supreme court’s holding in In re
E.H. and our ruling in Taylor is that parties cannot stipulate
away the district court’s statutory responsibility to conduct a
best-interest analysis. See Utah Code Ann. § 30-3-10(1)(a)

7. District courts must make two findings of fact before
modifying a child custody order: first, there must have been a
material change in the circumstances upon which the earlier
order was based, and second, a change in custody must be in the
best interest of the child. Wright v. Wright, 941 P.2d 646, 650
(Utah Ct. App. 1997).

8. Similarly, here, Father and Mother’s stipulation contemplated
a move from Kentucky to Utah that would result in a ‚very real
modification‛ from Child’s perspective.

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 R.B. v. L.B.

(LexisNexis 2013) (‚In determining any form of custody,
including a change in custody, the court shall consider[, inter
alia,] the best interests of the child . . . .‛).9 Although parties may
plan for contingencies and develop mechanisms to assess a
child’s best interest outside of the court system, our case law
instructs that they cannot divest the district court of its statutory
charge to ensure that any custody arrangement or change of
custody serves the child’s best interest.

¶ 17 Father poses the question, ‚Can parents resolve issues of
child custody via the legal procedures established for doing so as
Utah law demands, have that resolution reduced to judgment,
and rely on the courts to enforce the judgment once entered?‛
We are sympathetic to Father’s plea; in 2009, the stipulation
must have seemed an elegant solution to an intractable problem.
However, Utah law has recognized that in the context of a
child’s well-being, interests in finality rank below the child’s
welfare. See Elmer v. Elmer, 776 P.2d 599, 603 (Utah 1989) (stating
that ‚the res judicata aspect of the rule [favoring finality of
judgments] must always be subservient to the best interests of
the child‛ and that ‚even when an initial decree has adjudicated
the best interests of a child, a subsequent proceeding [can]
reopen that decree . . . if the circumstances pertaining to the
decree [have] subsequently changed, so that a new
determination should be made based on a full development of
all material facts‛). The Elmer court noted that ‚‘[t]he best
interests of the child should never be lost sight of, and rules on
change in custody should not be so rigid that this overarching
principle is not followed.’‛ Id. at 604 (quoting Kramer v. Kramer,
738 P.2d 624, 629 (Utah 1987) (Howe, J., concurring in the
result)). The same logic applies to judgments predicated on

9. This statute has not changed in a way material to our analysis
since the district court’s resolution of the issue. See Utah Code
Ann. § 30-3-10(1)(a) (LexisNexis Supp. 2009) (‚In determining
any form of custody, the court shall consider[, inter alia,] the best
interests of the child . . . .‛)

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 R.B. v. L.B.

stipulated agreements. Despite Father’s argument that the
district court disturbed the parties’ settled expectations, the
district court retained the statutory authority to conduct the best-
interest analysis. Because the district court was required to
ensure that Child’s best interest would be served by a change in
custody, the district court did not err in conducting a best-
interest analysis.10

10. Father notes that a best-interest determination had been
made by one of the judges previously assigned to the case and
argues that the district court could not have conducted a fresh
best-interest analysis without violating law-of-the-case
principles. Specifically, he argues that the first judge’s 2009
incorporation of the agreement into the divorce decree was an
implicit finding that the custody provisions of the agreement
were in Child’s best interest.
‚While a case remains pending before the district court
prior to any appeal, the parties are bound by the court’s prior
decision, but the court remains free to reconsider that decision.‛
IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 196
P.3d 588. Thus, the law-of-the-case doctrine ‚allows a court to
decline to revisit issues within the same case once the court has
ruled on them.‛ Id. ¶ 26 (emphasis added). Even if Father were
correct that the district court’s 2009 incorporation of the
automatic change-of-custody provision into the decree of
divorce was an implicit finding that the provision was in Child’s
best interest, that finding did not forever bind the district court.
The district court therefore did not violate law-of-the-case
principles when it revisited the issue. Despite Father’s protests
that ‚‘one district court judge cannot overrule another district
court judge of equal authority,’‛ (quoting Mascaro v. Davis, 741
P.2d 938, 946 (Utah 1987)), the law-of-the-case doctrine ‚does not
prohibit a district court judge from revisiting a previously
decided issue during the course of a case, regardless of whether
the judge has changed or remained the same throughout the
proceedings,‛ Mid-America Pipeline Co. v. Four-Four, Inc., 2009 UT
43, ¶ 11, 216 P.3d 352. This is because ‚two judges, while
(continued...)

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 R.B. v. L.B.

II. Sufficiency of the Evidence and Adequacy of the Findings

¶ 18 Father next contends that the district court’s findings
were inadequate to justify its departure from the custody
evaluator’s recommendation. Although a district court is not
bound to accept a custody evaluator’s recommendation, the
court is expected to articulate some reason for rejecting that
recommendation. Woodward v. LaFranca, 2013 UT App 147, ¶ 7,
305 P.3d 181; see also Tuckey v. Tuckey, 649 P.2d 88, 91 (Utah 1982)
(remanding for additional findings because the trial court
rejected a recommendation without explanation); Sukin v. Sukin,
842 P.2d 922, 925–26 (Utah Ct. App. 1992) (same).

¶ 19 Here, the district court considered the evaluator’s
findings and recommendations but declined to adopt them. In its
ruling, the district court explained its understanding of how Dr.
Walker, the evaluator, had arrived at her findings and the basis
of her recommendation that Father be granted custody. The
district court noted that Dr. Walker, who had also evaluated
Child during the 2009 proceedings, had performed a follow-up
evaluation of Child rather than a full evaluation, which would
have included Mother and Father. The district court stated that
other testimony contradicted Dr. Walker’s findings. The district
court found that ‚the child, contrary to the opinion of Dr.
Walker, is . . . happy and well adjusted.‛ The district court
concluded that, despite its great respect for Dr. Walker’s work,
the other testimony before the district court led it to disagree
with her recommendation. See Woodward, 2013 UT App 147, ¶ 19
n.4 (‚*A+ trial court is free to . . . weigh the *e+valuator’s
recommendations in the context of all the other evidence before
the court.‛). On this record, we cannot conclude that the district

different persons, constitute a single judicial office.‛ In re
R.B.F.S., 2012 UT App 132, ¶ 12, 278 P.3d 143 (citation and
internal quotation marks omitted). Accordingly, the district
court was not bound by previous decisions made by the other
judges who had presided during the course of the litigation.

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 R.B. v. L.B.

court failed to articulate its reasons for departing from Dr.
Walker’s recommendation.

¶ 20 Father also asserts that ‚certain of the court’s findings,
and the evidence as a whole, are unsupported and insufficient to
undermine the expert’s opinion.‛ Specifically, he challenges the
district court’s findings relating to Child’s weight gain,
misbehavior, and academic performance.

A. Father Did Not Preserve a Challenge to the Adequacy of
the District Court’s Findings.

¶ 21 Father first argues that the district court ‚refused to
blame . . . Mother for‛ Child’s unhealthy weight gain. He points
to the evaluator’s testimony that Child’s weight gain was
‚absolutely more pronounced‛ after Child began residing with
Mother under the agreement. However, the district court’s
findings did not seek to assign blame; rather the district court
focused on whether Child’s weight gain was being addressed. 11
We therefore read Father’s claim that the district court should
have entered a finding blaming Mother as a challenge to the
adequacy of the findings rather than the sufficiency of the
evidence. ‚A challenge to the adequacy of the court’s findings is
notably different from a challenge to the sufficiency of
evidence.‛ In re K.F., 2009 UT 4, ¶ 61, 201 P.3d 985. A party
waives any argument regarding the adequacy of findings by
failing to raise the claim before the district court. Id. ¶¶ 61–64.

11. The district court found that Child was ‚probably at an
unhealthy weight right now‛ but concluded that ‚such is no
doubt the result of many factors, not just *M+other.‛ The district
court then noted that Mother had enrolled Child in a martial arts
course, acknowledging Father’s criticism that this course was
simply ‚window dressing for the court.‛ The court also
recounted evidence that Mother’s other son, a personal trainer,
was assisting Child with an exercise regimen. And the court
recognized that Child’s weight gain had slowed.

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 R.B. v. L.B.

¶ 22 After the court entered its findings, Father moved to alter
or amend those findings pursuant to rule 59 of the Utah Rules of
Civil Procedure. That motion, however, did not request a finding
of blame or explain why a finding of blame for Child’s past
weight gain was necessary to determine Child’s future best
interest. Father therefore waived this argument, and we do not
address it further.12

¶ 23 Similarly, Father expresses surprise that ‚the court did
not address the evaluator’s significant testimony concerning
Mother’s acts of parental alienation.‛ He complains that
‚*d+espite this important testimony, the court concluded only
that Mother and Mother’s family were not supportive of the
child coming to Utah, a conclusion far less significant [than] the
evaluator’s actual testimony.‛ In essence, Father objects to the
absence of a finding that Mother ‚had engaged in parental
alienation.‛ Father did not preserve this issue in his rule 59
motion and has therefore waived it. Because it is not properly
before us, we do not address it further.

B. Father Fails To Demonstrate That the District Court’s Findings
on Child’s Misbehavior and Academic Performance Were
Unsupported by Sufficient Evidence.

¶ 24 Father next argues that insufficient evidence supported
the district court’s findings concerning Child’s misbehavior and
academic performance. ‚A challenge to the sufficiency of the
evidence concerns the trial court’s findings of fact. Those
findings will not be disturbed unless they are clearly erroneous.‛
Cummings v. Cummings, 821 P.2d 472, 476 (Utah Ct. App. 1991).
‚The trial court’s factual determinations are clearly erroneous

12. Father notes that ‚the court’s finding that *Child was+
overweight certainly cannot support the conclusion that his
custody with Mother promotes his best interest.‛ However, the
court’s finding that Mother’s efforts had in fact succeeded in
slowing Child’s weight gain did support that conclusion.

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 R.B. v. L.B.

only if they are in conflict with the clear weight of the evidence,
or if this court has a definite and firm conviction that a mistake
has been made.‛ Id. (citation and internal quotation marks
omitted).

1. Child’s Misbehavior

¶ 25 Father asserts that the district court erred by finding that
the stress of the divorce caused Child’s misbehavior. Father
argues that the stress of the divorce process could not have
caused Child’s misbehavior because that misbehavior ‚only
arose . . . when the parties were at peace‛ after the decree of
divorce. But the district court’s finding was that the behavioral
problems ‚cannot be placed solely at the feet of [M]other‛
because Child ‚was impacted by the decision of both parties to
divorce and change forever . . . the family makeup.‛ Thus, the
court’s actual conclusion was that the fact of the divorce, not the
process of the divorce, caused Child’s misbehavior. Father also
asserts, with his own capitalization, that ‚the court hypothesized
on evidence NOT in the record as causing these problems but
ignored the unbiased evidence that was presented.‛13 Father
points to the evaluator’s testimony to the effect that Mother was
depressed, had low energy, and was easily overwhelmed.
According to Father, the evaluator also testified that children
cared for by parents with these types of issues are more prone to
acting out.

¶ 26 We reiterate the long-standing observation that a fact-
finding district court is best positioned to evaluate the credibility
of a witness. See In re Z.D., 2006 UT 54, ¶ 24, 147 P.3d 401 (‚The

13. This claim may plausibly be read as a complaint that no
evidence before the district court suggested that children remain
stressed by a divorce decree even after the conclusion of the
divorce process. However, Father’s brief does not develop an
argument based on that reading, and we therefore do not
address it further.

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 R.B. v. L.B.

doctrine that shapes and guides judicial review is that it is not
within the province of an appellate court to substitute its
judgment for that of a front line fact-finder except when
exceptional circumstances warrant more rigorous scrutiny.‛).
We will therefore overturn a district court’s resulting findings of
fact only when ‚they are clearly erroneous.‛ Cummings, 821 P.2d
at 476. An appellant challenging a finding of fact bears the heavy
burden of demonstrating that the finding is clearly erroneous
and must do so by showing that the finding is without adequate
evidentiary support or was induced by an erroneous view of the
law. Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 9, 288 P.3d
1046. As a practical matter, this will generally entail marshaling
all of the evidence that could have supported the finding,
because an appellate court cannot determine whether the
evidence supporting a finding was insufficient without first
knowing what that evidence was. See Bailey v. Retirement Bd.,
2012 UT App 365, ¶ 8, 294 P.3d 577 (noting that ‚an argument
that does not fully acknowledge the evidence supporting a
finding of fact has little chance, as a matter of logic, of
demonstrating that the finding lacked adequate factual
support.‛); see also State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645
(‚*A+ party challenging a factual finding or sufficiency of the
evidence to support a verdict will almost certainly fail to carry
its burden of persuasion on appeal if it fails to marshal.‛).

¶ 27 Here, Father recounts the evaluator’s opinion of Mother’s
psychological health. But he fails to mention that the evaluator
was describing the results of the 2009 evaluation and that the
evaluator’s 2012 follow-up did not reveal the continued presence
of those conditions. He also fails to mention that the evaluator
admitted that she had not talked to Mother’s psychiatrist. And
he further fails to mention that the evaluator testified that
‚divorce . . . is really traumatic for children.‛ The district court
noted that the divorce, and the resulting custody arrangement,
‚alone is a major stressor in this child’s life and alone, apart from
any parenting ability, can impact schoolwork, emotional
behavior, acting out, and eating and social habits.‛ The court
also found that Child’s inappropriate school behaviors ‚were
more frequent in the past than they have been in more recent

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 R.B. v. L.B.

years.‛ As a result of these failures, Father’s insufficiency of the
evidence claim assails a straw man. He argues in effect that a
selected portion of the evidence supporting the court’s findings
provided inadequate support without addressing the additional
supporting evidence. Father has therefore failed to shoulder his
burden of establishing that the district court’s findings
concerning Child’s misbehavior lacked the support of
substantial evidence. Cf. State v. Mitchell, 2013 UT App 289, ¶ 31,
318 P.3d 238 (‚An appellant cannot demonstrate that the
evidence supporting a factual finding falls short without giving
a candid account of that evidence.‛).

2. Child’s Academic Performance

¶ 28 Father next asserts that insufficient evidence supported
the district court’s findings regarding Child’s academic
performance. The district court recognized that Child’s
‚schooling is probably not described best as ‘thriving’ but . . . is
certainly adequate.‛ Father asserts that the court ‚dismiss*ed+
the child’s academic struggles by explaining that average is good
enough‛ and argues, ‚Nothing could be further from the truth.‛
Father suggests that the evidence did not support a finding that
Child’s academic performance was ‚even average or adequate.‛
He points to Child’s standardized test results, which he
describes as showing that Child’s scores were below average.

¶ 29 Father’s argument conflates the terms ‚average‛ and
‚adequate.‛ In this context, the ‚average‛ is a mathematically
calculable number and is thus an objective measure. In contrast,
‚adequate‛ is a subjective term. To assess the question of
whether a student’s academic performance is adequate, a district
court does not abuse its discretion by looking beyond the
student’s standardized test scores.

¶ 30 The district court made numerous observations in
support of its finding of adequacy. It noted that ‚*i+n sixth grade
the child had mostly Ds and Fs. This year he has mostly As and
Bs and one C in the first trimester.‛ The district court also took
into account that Child ‚participates in a school program

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 R.B. v. L.B.

designed to help students get their work done‛ and recognized
that Child’s school was ‚rated in the top 15% of private schools
in the nation.‛ The court wrote that ‚*p+erhaps all parents wish
to live in a Lake Wobegon/Garrison Keillor-esque world where
all the children are above average, but on the whole most of us
are quite average‛ and concluded that Child’s ‚schooling is
probably not described best as ‘thriving’ but he is certainly
adequate.‛14 Even if we were to agree with Father that the
evidence proves that Child’s standardized test scores are
objectively below average,15 it would not logically follow that the
district court’s finding—that Child’s overall schooling was
subjectively adequate—lacked substantial evidentiary support.

14. The News from Lake Wobegon is a feature of the American
Public Media radio show A Prairie Home Companion, hosted by
Garrison Keillor. The closing words of each news broadcast
segment are ‚Well, that’s the news from Lake Wobegon, where
all the women are strong, all the men are good looking, and all
the children are above average.‛ See A Prairie Home
Companion, http://www.prairiehome.org/listen/podcast/ (last
visited Oct. 30, 2014).

15. In the argument section of his brief, Father claims that ‚*t+he
unrefuted evidence was that child was below average in all
grades, in all areas, on all tests, with percentile scores of 19, 21,
22, 25, 26, 29, 31, 32, 38, 39, and 46.‛ However, these numbers
appear to be the lower bounds of the standard deviations rather
than Child’s actual scores. Moreover, Father’s argument in this
regard omits an above-average percentile score of 61, which he
previously mentioned in his own fact section under the heading
‚Facts Established at Trial and the Court’s Findings that Father
Does Not Dispute.‛ And our examination of the score report
Father cites reveals that Child achieved other above-average
percentile scores of 52, 53 (twice), 55, 63 (twice), 64, 72 (twice),
77, and 82.

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 R.B. v. L.B.

¶ 31 Father also challenges testimony offered by the principal
of Child’s school relating to this issue. He notes that because the
school was private and had no waiting list, the principal had a
financial stake in having Child remain a student at the school.
Father does not develop this argument further or explain why
this observation matters. See Utah R. App. P. 24(a)(9). Father also
elicited principal’s testimony as to how much the school charged
each student. It may be that Father intends to suggest that the
district court erred by crediting the principal’s testimony despite
the suggested financial interest in Child’s continued attendance.
However, because the district court is ‚in the best position to
assess the credibility of witnesses,‛ State v. Maestas, 2012 UT 46,
¶ 193, 299 P.3d 892 (citation and internal quotation marks
omitted), we defer to a district court’s witness-credibility
determination unless it is ‚in conflict with the clear weight of the
evidence, or if this court has a definite and firm conviction that a
mistake has been made,‛ see Cummings v. Cummings, 821 P.2d
472, 476 (Utah Ct. App. 1991) (citation and internal quotation
marks omitted). See also Utah R. Civ. P. 52(a) (‚Findings of fact
[made by a trial court] shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses.‛). Here,
the evidence Father now cites to show lack of credibility was
before the district court when it implicitly deemed the
principal’s testimony credible. Because Father has not shown
that the principal’s testimony was against the clear weight of the
evidence, we will not second-guess the district court’s
determination. See In re Z.D., 2006 UT 54, ¶ 24, 147 P.3d 401.

¶ 32 For these reasons, we reject Father’s challenge to the
sufficiency of the evidence supporting the district court’s finding
that Child’s schooling was adequate.

¶ 33 Father has not demonstrated clear error in the district
court’s decision to depart from the evaluator’s recommendation.
Cummings, 821 P.2d at 476.

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 R.B. v. L.B.

III. Witnesses

¶ 34 Father contends that the district court erred ‚to the
substantial prejudice of Father in allowing witnesses to testify
who were never disclosed as witnesses in either Mother’s
answers to interrogatories or pretrial disclosures.‛ Specifically,
he objects to the admission of testimony by the principal and the
guidance counselor at Child’s school.

¶ 35 ‚If a party fails to disclose a witness . . . that party shall
not be permitted to use the witness . . . unless the failure to
disclose is harmless or the party shows good cause for the failure
to disclose.‛ Utah R. Civ. P. 37(h); see also Utah R. Civ. P.
26(d)(4). The district court has the discretion to determine
whether good cause excuses the nondisclosure and whether
allowing the undisclosed witness to testify at trial would be
harmless. See Spafford v. Granite Credit Union, 2011 UT App 401,
¶ 16, 266 P.3d 866. ‚We will not disturb the trial court’s rulings
regarding the admissibility of evidence unless it clearly appears
that the lower court was in error,‛ and that the error affects a
party’s substantial rights. Belden v. Dalbo, Inc., 752 P.2d 1317,
1319 (Utah Ct. App. 1988). To establish that a substantial right of
a party is affected, there must be a reasonable likelihood that,
absent the error, a different result would have been reached at
trial. Id. An appellate court may ‚affirm the trial court’s decision
to admit evidence on any proper grounds, even though the trial
court assigned another reason for its ruling.‛ State v. Gray, 717
P.2d 1313, 1316 (Utah 1986).

¶ 36 Mother did not identify the principal or guidance
counselor as witnesses in her pretrial disclosures or answers to
interrogatories. On the day the district court had set for the
disclosure of witnesses, less than two weeks before the hearing,
Mother filed a motion to transfer the matter to Kentucky. In
support of that motion, Mother attached the affidavits of more
than twenty potential witnesses who stated that they would be
willing to testify if the hearing were conducted in Kentucky. The
principal’s and guidance counselor’s affidavits were among

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 R.B. v. L.B.

those submitted in support of the motion, but Mother did not
identify them as witnesses as the court had ordered.

¶ 37 The court denied Mother’s motion to transfer but allowed
Mother’s witnesses to testify via videoconference. After the first
day of the hearing, Father moved to exclude those witnesses
because they had not been properly disclosed. The court denied
Father’s motion, stating that ‚what *the witnesses+ say about
[Mother], presumably about her parenting ability[,] is still
important in the best interest [determination] and so I’ll hear
those folks.‛

¶ 38 Mother argues that her failure to disclose the identities of
the witnesses was harmless because Father ‚did not seek to
depose any other witnesses‛ besides Mother and thus Father
only ‚lost a right [it appears] he never intended to exercise.‛ But
we cannot guess what Father may have done had the identities
been properly disclosed. Our rules of civil procedure require the
disclosure of all witnesses, not merely those that the disclosing
party believes the other side may want to depose. And the
disclosure of potential witnesses serves purposes beyond
facilitating depositions.

¶ 39 Nevertheless, Father bears two burdens on appeal: first, to
demonstrate that the district court erred by admitting the
testimony of the principal and the guidance counselor, and
second, to show that ‚there is a reasonable likelihood that a
different result would have been reached‛ absent the error.
Belden, 752 P.2d at 1319 (citation and internal quotation marks
omitted). Even if we were to agree with Father as to the first
point, he makes no effort to prove the second.

¶ 40 Father does not claim that the result of the hearing would
have differed had the district court excluded the testimony or
continued the hearing to allow Father to take depositions. Nor
does Father argue that the content of the testimony resulted in

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 R.B. v. L.B.

unfair surprise. Indeed, he concedes that affidavits from the
principal and the guidance counselor were attached to Mother’s
motion.16 Father does not claim that the testimony was harmful
to his case and does not identify any additional information that
he would have introduced to rebut the testimony. Cf. Salt Lake
City v. Almansor, 2014 UT App 88, ¶ 11, 325 P.3d 847 (rejecting a
plain error claim regarding a trial court’s failure to procure a
witness, because the defendant did not ‚address the anticipated
content of the witness’s testimony at all‛ and did not
‚demonstrate how her testimony would have helped the
defense‛). And Father does not explain whether the content of
the witnesses’ testimony was corroborated by other evidence. In
essence, he asks us to assume that allowing the testimony
changed the result of the hearing. We decline to do so, and we
therefore conclude that Father has not carried his burden of
demonstrating a reasonable likelihood of a different result.

IV. Timeliness of Mother’s Rule 60(b)(6) Motion

¶ 41 Father next contends that the district court erred ‚by
allowing Mother to challenge the validity of the judgment over
two years after its entry‛ via a motion brought under rule
60(b)(6) of the Utah Rules of Civil Procedure. Mother responds
that her motion was timely because the contested custody
provision did not take effect until August 2012. The district court
ruled that Mother’s motion was, ‚under the circumstances,
timely and brought within a reasonable time as to a future event
as there would have been no trigger to cause the parties to
consider the provision in question.‛

16. We are sympathetic to Father’s complaint that Mother’s
‚gamesmanship‛ in identifying more than twenty potential
witnesses shortly before the hearing forced him to ‚decipher
from tea leaves whom among many she would call.‛ But this
complaint does not suggest that the hearing would have reached
a different outcome had the court prevented the witnesses from
testifying.

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 R.B. v. L.B.

¶ 42 Rule 60(b) allows a court to ‚relieve a party . . . from a
final judgment, order, or proceeding‛ upon a motion made
within a reasonable time and demonstrating one of several
enumerated conditions. The final listed condition justifying relief
is ‚any other reason justifying relief from the operation of the
judgment.‛ Utah R. Civ. P. 60(b)(6). A district court’s decision on
a rule 60(b) motion is generally reviewed for an abuse of
discretion. Lange v. Eby, 2006 UT App 118, ¶ 6, 133 P.3d 451
(explaining that because a district court has discretion in
determining whether a movant has shown rule 60(b) grounds,
we will generally only reverse that ruling when there has been
an abuse of discretion). However, when the ruling is ‚predicated
on the district court’s interpretation of the law, we review that
decision for correctness.‛ Kell v. State, 2012 UT 25, ¶ 7, 285 P.3d
1133. ‚The remedies provided by rule 60(b) should not be
understood to be a substitute for appeal.‛ Id. ¶ 18 (citation and
internal quotation marks omitted). And rule 60(b)(6) in
particular should be invoked with great caution and only in
unusual and exceptional circumstances. Id.

¶ 43 Even if we were to agree with Father that a rule 60(b)
motion was untimely, the district court did not rely on rule 60(b)
as the procedural mechanism to address the dispute. Father filed
a motion to enforce the judgment and decree, and it is that
motion that the court used as an invitation to conduct its best-
interest review. The district court’s amended decree of divorce
noted that this ‚matter came before the Court on a motion from
[Father, asking] that the Court enforce the provisions of its
original Decree.‛ In its memorandum decision, the district court
struggled to characterize the nature of the proceeding:

This proceeding is not easily categorized as most
post-decree cases are. It is not a modification nor is
it strictly an enforcement action . . . . It is an
evidentiary hearing to determine the best interests
of the child, to determine if the agreed upon decree
should be enforced and maintained or whether the
best interests of the child require some other

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 R.B. v. L.B.

custody arrangement than that contemplated by
the parties.

There is no indication in the record that the court relied upon
rule 60(b)(6) as the basis for the actions it took. Nor is there any
question that the district court possessed the authority to
conduct a best-interest review. See supra ¶¶ 15–16. Accordingly,
Father’s argument that Mother’s rule 60(b) motion was tardy
does not cast doubt upon the propriety of the district court’s
actions.

V. Consideration

¶ 44 Father contends that the district court erred by denying
his ‚request to have the additional consideration paid by him to
Mother in exchange for her assent to the custody plan returned
to him in light of Mother’s successful destruction of the
stipulation.‛ He asserts that, in exchange for her stipulation to
the custody provisions, he ‚gave Mother a greater portion of the
marital estate as well as forgave the $1,500.00 court-imposed fine
for her prior contempt and discovery abuses.‛ He also claims
that his concessions totaled $8,848.11.

¶ 45 An issue presented on appeal must be adequately briefed.
See Utah R. App. P. 24(a)(9) (‚The argument shall contain the
contentions and reasons of the appellant with respect to the
issues presented . . . with citation to the authorities, statutes, and
parts of the record relied on.‛). The gist of Father’s claim is that
‚equity demands that Mother refund the additional
consideration paid to her by Father . . . in exchange for Mother’s
empty promises.‛ Father cites no case or statute in support of
this statement. Nor does he offer any legal support for his
assertion that the district court erred by denying his request.
Father has therefore failed to carry his burden on appeal of
demonstrating error. See State v. Robison, 2006 UT 65, ¶ 21, 147
P.3d 448 (noting that the appellant bears the burden of
persuasion on appeal and that an appellate court will not ‚do the
heavy lifting‛ for the appellant). For this reason, we decline to
reverse the district court’s ruling.

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 R.B. v. L.B.

CONCLUSION

¶ 46 The district court did not err in interpreting the parties’
agreement as allowing the court to assess Child’s best interest.
Even if it misread the agreement, the district court retained the
authority to determine Child’s best interest and thus did not err
by conducting a best-interest analysis. Nor did the court err by
weighing evidence and eventually rejecting the evaluator’s
recommendation.

¶ 47 Father did not preserve his claims that the court’s
findings were inadequate. With regard to the sufficiency of the
evidence to support the findings, Father has not carried his
burden on appeal. Specifically, he fails to note and counter
significant evidence that supported the district court’s findings.

¶ 48 Father alleges that the court erred by admitting testimony
by the principal and the guidance counselor. But he does not
show or even claim that the hearing would have reached a
different result absent the alleged errors. Similarly, while he
alleges that the court erred by ruling that Mother timely filed her
motion for relief from judgment, he has not shown that a
contrary ruling would have prevented the court from
conducting a hearing to determine Child’s best interest. Father
also fails to carry his burden of persuasion on appeal on his
claim for the return of additional consideration he asserts he
provided to Mother in exchange for the stipulated custody
agreement.

¶ 49 Affirmed.
______________

20130188-CA 26 2014 UT App 270