2016 UT App 6
THE UTAH COURT OF APPEALS
LEONOR ZAVALA,
Appellee,
v.
ARMANDO D. ZAVALA,
Appellant.
Opinion
No. 20141031-CA
Filed January 14, 2016
Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 114900271
David C. Blum, Attorney for Appellant
David Pedrazas, Attorney for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE STEPHEN L. ROTH concurred and SENIOR JUDGE RUSSELL W.
BENCH concurred in the result. 1
VOROS, Judge:
¶1 This is a child custody dispute arising from a 2011
divorce. On cross-petitions for modification, the district court
found a material and substantial change of circumstances and
modified the parties’ stipulated school-year custody schedule
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Zavala v. Zavala
from a 7/7 schedule to a 9/5 schedule. 2 We conclude that the
district court acted within its discretion in modifying the decree;
accordingly, we affirm.
BACKGROUND
¶2 Armando Zavala (Father) and Leonor Zavala (Mother)
married in 2007 and divorced in 2011. They had one child. The
stipulated Decree of Divorce awarded the parties joint legal and
physical custody of the child. The parties stipulated to an equal
time-sharing arrangement under which the child resided with
Father 182 nights a year and with Mother 183 nights a year. The
decree ordered Father to pay $149 per month as base child
support. The decree was entered in February 2011.
¶3 Seven months later, Mother filed a Petition to Modify
Parent Time seeking to reduce Father’s parent time on the
ground that the child “needs routine and a stable environment.”
Two months later, Father filed a counter-petition seeking sole
legal and physical custody of the child on the ground that
Mother’s relocations were not in the child’s best interest. The
court appointed a custody evaluator, Dr. Todd Dunn. Mother
retained an expert, Dr. Matthew Davies.
¶4 The court held a trial over five days. Both parties and both
experts testified. Dr. Dunn recommended that Father have nine
nights out of fourteen nights, because it would “create less
conflict.” Dr. Davies opined that Dr. Dunn’s arrangement would
not reduce conflict.
2. This means that for every two-week period during the school
year, the child spends nine nights with Mother and five with
Father, rather than seven with each.
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¶5 The district court entered Amended Findings of Fact and
Conclusions of Law, an Order of Modification, and an order
denying Father’s post-trial motions. The court amended the
decree in two respects. First, it amended the parties’ school-year
custody schedule, awarding Mother nine out of every fourteen
nights with the child during the school year. The court left the
summer custody schedule intact. Second, based on the amended
custody schedule and Father’s increased income, the court
increased his child support from $149 a month to $354 a month.
The court also ordered Mother to pay Dr. Davies’s fees and
Father to pay Dr. Dunn’s fees. Father appeals.
ISSUES ON APPEAL
¶6 First, Father contends that the district court erred by
modifying the custody arrangement without first finding a
material and substantial change of circumstances since the entry
of the decree.
¶7 Second, Father contends that the district court committed
plain error when it “included and considered events that
occurred prior to the entry of the decree.”
¶8 Third, Father contends that the district court’s findings do
not support its custody order.
¶9 Fourth, Father contends that the district court “failed to
consider the 4-903 factors” under the Utah Rules of Judicial
Administration. See Utah R. Jud. Admin. 4-903.
¶10 Fifth, Father contends that the district court erred in
rejecting the recommendations of Dr. Todd Dunn, the court-
appointed custody evaluator.
¶11 Finally, Father contends that the district court erred in
requiring him to pay Dr. Dunn’s expert witness fees.
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ANALYSIS
I. Father Invited Any Error in the District Court’s Finding of a
Material and Substantial Change of Circumstances
¶12 First, Father contends that the district court erred by
modifying the custody arrangement without first finding a
material and substantial change of circumstances had occurred
since the entry of the divorce decree. The “‘determination of the
trial court that there [has or has not] been a substantial change of
circumstances . . . is presumed valid, and we review the ruling
under an abuse of discretion standard.’” Doyle v. Doyle, 2009 UT
App 306, ¶ 7, 221 P.3d 888 (alteration and omission in original)
(quoting Young v. Young, 2009 UT App 3, ¶ 4, 201 P.3d 301), aff’d
2011 UT 42, 258 P.3d 553.
¶13 Under Utah Code section 30-3-10.4(2)(b), “a court order
modifying . . . an existing joint legal or physical custody order
shall contain written findings that: (i) a material and substantial
change of circumstance has occurred; and (ii) a modification . . .
would be an improvement for and in the best interest of the
child.” Utah Code Ann. § 30-3-10.4(2)(b) (LexisNexis 2012). Thus,
“the party seeking modification must demonstrate (1) that since
the time of the previous decree, there have been changes in the
circumstances upon which the previous award was based; and
(2) that those changes are sufficiently substantial and material to
justify reopening the question of custody.” Hogge v. Hogge, 649
P.2d 51, 54 (Utah 1982).
¶14 The parties disagree over whether modifying a
stipulated—as opposed to an adjudicated—custody award
requires a finding of a material and substantial change of
circumstances. In Elmer v. Elmer, our supreme court held that
when custody decrees are not adjudicated, “the res judicata
policy underlying the changed-circumstances rule is at a
particularly low ebb.” 776 P.2d 599, 603 (Utah 1989).
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¶15 This court seemed to take the analysis a step further when
it applied Elmer in Woodward v. LaFranca, stating that “when the
trial court considers a petition to modify an unadjudicated
divorce decree, . . . it is unnecessary for the trial court to make a
threshold determination of material change in circumstances.”
2013 UT App 147, ¶ 32, 305 P.3d 181. Mother maintains that,
post-Woodward, “courts are no longer required to make a finding
of substantial change in circumstances when the parties
stipulated and agreed upon the custody provisions in the Decree
of Divorce.” We take this opportunity to clarify.
¶16 The required finding of a material and substantial change
of circumstances is statutory. Neither this court nor the supreme
court has purported to—or could—alter that requirement. See
Hooban v. Unicity Int’l, Inc., 2012 UT 40, ¶ 20 n.4, 285 P.3d 766
(stating “our cases cannot be read to override the clear terms of
[a] statute”). Rather, our courts have recognized the requirement
for what it is: a legislative expression of the principle of res
judicata. If a custody award has already been entered, custody
will not be re-examined absent a material and substantial change
of circumstances.
¶17 But whether a change of circumstances qualifies as
“sufficiently substantial and material to justify reopening the
question of custody,” Hogge, 649 P.2d at 54, depends on the
nature of the underlying custody award. In the case of a
stipulated award, in Elmer’s parlance, the res judicata policy
underlying the changed-circumstances rule is at a low ebb,
because “an unadjudicated custody decree is not based on an
objective, impartial determination of the best interests of the
child.” Elmer, 776 P.2d at 603. In such a case, the court does not
re-determine the custody award, but adjudicates it for the first
time. Thus, a lesser showing will support modifying a stipulated
award than would be required to modify an adjudicated award.
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¶18 Elmer’s balancing of interests thus respects the statutory
framework, recognizes the true nature of the inquiry, and—most
importantly—accords priority to the best interest of the child.
Any contrary statements in Woodward notwithstanding, Elmer
does not permit the best-interest inquiry to swallow up the
changed-circumstances inquiry: “Even an overwhelming case for
the best interest of the child could not compensate for a lack of
proof of a change in circumstances.” Doyle v. Doyle, 2011 UT 42,
¶ 38, 258 P.3d 553. 3
¶19 We turn now to Father’s contention that the district court
erred by modifying the custody arrangement without first
finding a material and substantial change of circumstances had
occurred since the entry of the decree. The district court rejected
this contention in connection with Father’s post-trial motions. In
keeping with the foregoing analysis, the district court recognized
its duty to find a material and substantial change of
circumstances. The court also noted, again in keeping with the
foregoing analysis, that the cross-petitions to modify represented
the first opportunity for any court to evaluate the best interest of
the child in the custody context, thus recognizing a relaxed
standard for assessing whether any change of circumstances
qualified as material and substantial.
¶20 The court also observed that both parties had alleged
that circumstances had changed sufficiently to warrant a
modification of the custody award. On appeal, Mother argues
that by filing a petition alleging a material and substantial
change of circumstances, Father waived any claim that such a
change had not occurred. We agree.
3. To the extent our opinion in Woodward v. LaFranca, 2013 UT
App 147, 305 P.3d 181, may vary from this analysis, we disavow
it as inconsistent with Elmer v. Elmer, 776 P.2d 599, 603 (Utah
1989). See State v. Menzies, 889 P.2d 393, 399 n.3 (Utah 1994).
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¶21 Under the invited-error doctrine, “a litigant may not
induce the trial court to make a ruling and then argue on appeal
that the ruling was in error.” Kerr v. Salt Lake City, 2013 UT 75,
¶ 44, 322 P.3d 669. The invited-error doctrine “is crafted to
discourage[] parties from intentionally misleading the trial court
so as to preserve a hidden ground for reversal on appeal” and
“to give the trial court the first opportunity to address the claim
of error.” State v. Geukgeuzian, 2004 UT 16, ¶ 12, 86 P.3d
742 (alteration in original) (citation and internal quotation marks
omitted).
¶22 Father acknowledges that in the district court he alleged a
material and substantial change of circumstances, specifically,
that Mother’s “relocations and conduct constituted changes in
circumstances sufficient to award him custody.” But he disputes
that his allegation could have induced the district court’s finding
of changed circumstances. Father reasons that the court must
have rejected his allegations or it “would not have awarded
custody to [Mother].”
¶23 This is not how we read the record. In denying Father’s
post-trial motions, the district court noted that 27 of its amended
findings “discuss in detail the changed circumstances
warranting a custody modification.” Relevant here, the court
found that “[s]ince the entry of the Decree of Divorce,” Mother
“relocated at least 2 separate occasions,” first from West Valley
City to Layton, then from Layton to Clearfield. The court then
found the number of miles and minutes of travel time separating
each of Mother’s new residences from Father’s residence. We
thus conclude that the district court relied on the very change of
circumstances Father alleged.
¶24 Father reasons that the district court must have rejected
his allegation of a material and substantial change of
circumstances because the court did not award Father sole
custody. This argument confuses the changed-circumstances
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Zavala v. Zavala
inquiry with the best-interest inquiry. The district court’s
findings show that the court rejected Father’s position with
respect to the latter, not the former.
¶25 The district court entered findings on the question of a
material and substantial change of circumstances. And because
the court relied on the very facts that Father himself argued
justified modifying the custody award, we reject under the
invited-error doctrine Father’s contention that the court failed to
find a material and substantial change of circumstances.
II. The District Court Properly Considered Pre-Decree Facts
¶26 Father next contends that the district court committed
plain error when it “included and considered events that
occurred prior to the entry of the decree.” He notes that the
court’s ruling “identifies a number of events that occurred prior
to the parties’ divorce and, by their inclusion in [its] findings,
were obviously part of [its] ruling.”
¶27 To establish plain error, an appellant must show “(i) [a]n
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is
a reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993);
see also Danneman v. Danneman, 2012 UT App 249, ¶ 10, 286 P.3d
309. “To establish that an error should have been obvious to the
trial court, [an appellant] must show that the law governing the
error was clear at the time the alleged error was made.” State v.
Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (citing State v. Eldredge, 773
P.2d 29, 35–36 (Utah 1989)). Thus, an obvious error is one that
contravenes “settled appellate law,” State v. Ross, 951 P.2d 236,
239 (Utah Ct. App. 1997), or “the plain language of the relevant
statute,” State v. Low, 2008 UT 58, ¶ 41, 192 P.3d 867.
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¶28 Here, the relevant statute provides that the district court
may modify an order establishing joint legal or physical custody
only if the circumstances of the child, or one or both parents (or
joint legal or physical custodians), “have materially and
substantially changed since the entry of the order to be
modified.” Utah Code Ann. § 30-3-10.4(1) (LexisNexis 2012).
However, that statute does not remove pre-decree conduct from
the inquiry; in fact the opposite is true. “When determining
whether there has been a substantial change in circumstances,
the district court will consider the nature and materiality of any
changes in those circumstances upon which the earlier award of
custody was based.’” Snyder v. Snyder, 2015 UT App 245, ¶ 10, 360
P.3d 796 (quoting Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982)).
¶29 Furthermore, the controlling statute states, “In
determining whether the best interest of a child will be served by
either modifying or terminating the joint legal or physical
custody order, the court shall, in addition to other factors the
court considers relevant, consider the factors outlined in Section
30-3-10 and Subsection 30-3-10.2(2).” Utah Code Ann. § 30-3-
10.4(2)(a). The factors outlined in those subsections guide the
court’s original custody award and include the parties’ “past
conduct,” id. § 30-3-10(1)(a)(i); their “past and present ability . . .
to cooperate with each other”; “any history of, or potential for,
child abuse”; and “any other factors the court finds relevant,” id.
§ 30-3-10.2(2)(h), -(i), -(j). Nothing in the statutes states or implies
that, in determining whether modifying a custody award would
serve the best interest of the child, the court must confine its
inquiry to the parties’ conduct after entry of the original custody
award.
¶30 Rather than excluding the parties’ pre-decree conduct
from the inquiry, the controlling statutes invite the district court
to include it. Accordingly, the district court did not err,
obviously or otherwise, in considering in the changed-
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circumstances inquiry all material facts, including events and
conduct that occurred before entry of the original divorce decree.
III. The District Court’s Findings Support Its Custody Award
¶31 Father next contends that the district court’s findings do
not support its custody order. Under the court’s custody order,
Father and Mother continue to exercise joint legal and physical
custody of the child; however, the school-year visitation
schedule changes from a 7/7 schedule to a 9/5 schedule, with
Mother having nine overnights and Father having five
overnights per fortnight.
¶32 “A trial court is given particularly broad discretion in the
area of child custody incident to separation or divorce
proceedings.” Doyle v. Doyle, 2011 UT 42, ¶ 40, 258 P.3d 553
(citation and internal quotation marks omitted). We will reverse
“[o]nly where trial court action is so flagrantly unjust as to
constitute an abuse of discretion.” Id. (citation and internal
quotation marks omitted).
¶33 Father acknowledges an adequate evidentiary basis for
the following findings: that since the divorce Mother has been a
more-or-less full-time caregiver; that Mother has greater ability
to provide parental care over surrogate care; that Father has
relied exclusively on child care during the week; that Father
failed to list Mother as a parent or emergency contact at the
child-care facility; that for a period of at least three months—and
perhaps six months—Father cut off all telephone communication
between Mother and the child during Father’s parent time; and
that Father had posted a comment online to the effect that he
was hung over on Christmas morning 2011, a time when the
child was staying with him. In addition, Father does not
challenge the court’s findings that since the divorce, Mother
moved from West Valley City to Layton and then to Clearfield,
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that the child is enrolled in a school in Syracuse, and that the
school is 43 miles from Father’s residence.
¶34 Father challenges other findings as irrelevant, lacking
evidentiary support, or contrary to the court’s ultimate ruling.
But even if Father were correct about those other findings—a
question on which we express no opinion—we could not in the
face of the findings summarized above conclude that the district
court’s alteration of the school-year custody schedule is “so
flagrantly unjust as to constitute an abuse of discretion.” See id.
(citation and internal quotation marks omitted).
IV. The District Court Considered the Relevant Factors
¶35 Father next contends that the district court “failed to
consider the 4-903 factors.” See Utah R. Jud. Admin. 4-903. His
brief discusses the 12 subsections and sub-subsections of Utah
Rule of Judicial Administration 4-903(5) and addresses the extent
to which, in his view, the district court considered or failed to
consider each.
¶36 To be clear, rule 4-903 governs the qualification and
selection of custody evaluators and the evaluations they
generate. Its stated purpose is to “establish uniform guidelines
for the preparation of custody evaluations.” Id. The rule specifies
factors that “evaluators must consider and respond to.” Id. R. 4-
903(5). But it “does not direct the court to consider the factors
enumerated therein; it merely directs that custody evaluations
shall be performed by qualified professionals, and it directs
those professionals to consider a number of factors in making a
report to the court.” Williams v. Williams, 2001 UT App 330U,
para. 1.
¶37 We understand that Father uses the term “4-903 factors”
as shorthand for child custody factors mentioned in case law.
And in fact on appeal he quotes extensively, both directly and
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indirectly, from Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982).
In Hutchinson, our supreme court listed factors to be considered
in a best-interest inquiry. Id. at 41. But the supreme court in
Hutchison did not purport to create a list of factors the court must
consider on peril of reversal. Rather, it listed “[s]ome factors”
that the court “may consider” in determining the child’s best
interest. Id. And this court has held, “Although the court
considers many factors, each is not on equal footing.” Hudema v.
Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “Generally, it is
within the trial court’s discretion to determine, based on the facts
before it and within the confines set by the appellate courts,
where a particular factor falls within the spectrum of relative
importance and to accord each factor its appropriate weight.” Id.
Moreover, “the factors relied on by the trial judge in awarding
custody must be articulable and articulated in the judge’s
written findings and conclusions.” Smith v. Smith, 726 P.2d 423,
426 (Utah 1986). 4
¶38 Mother argues that Father failed to preserve his claim that
the district court failed to consider all the necessary factors. We
agree. Father objected to the court’s findings on the ground that
the court “failed to consider the 4-903 factors.” However, the
objection did not specify any particular factor that the court had
failed to consider. Rather, his objection was a one-line blanket
objection.
¶39 It is well settled that “claims not raised before the trial
court may not be raised on appeal.” State v. Holgate, 2000 UT 74,
¶ 11, 10 P.3d 346. To preserve an issue for appeal, a litigant
“must enter an objection on the record that is both timely and
4. Section 30-3-10(1)(a) states that in determining a change in
custody, the court “shall consider” certain enumerated factors,
but Father does not claim that the court violated that section. See
Utah Code Ann. § 30-3-10(1)(a) (LexisNexis Supp. 2014).
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specific.” State v. Rangel, 866 P.2d 607, 611 (Utah Ct. App. 1993).
“The objection must be specific enough to give the trial court
notice of the very error of which [the party] complains.” State v.
Bryant, 965 P.2d 539, 546 (Utah Ct. App. 1998) (citation and
internal quotation marks omitted). Thus, to be preserved for
appeal, an issue “must be presented to the trial court in such a
way that the trial court has an opportunity to rule on that issue.”
438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801
(citation and internal quotation marks omitted).
¶40 In 438 Main Street the appellant objected that the trial
court’s findings were “inaccurate and incomplete.” Id. ¶ 47. The
supreme court held that this objection did not preserve an
appellate claim that the findings were “insufficiently detailed to
disclose how the court reached its decision.” Id. ¶ 53. Similarly
here, we agree with Mother that Father’s one-line blanket
objection lacked the specificity to preserve his appellate claim
that the court failed to consider each of 12 factors listed in rule 4-
903(5) or the factors listed in Hutchison. We reject his challenge
on that ground.
¶41 Alternatively, we are satisfied that the factors relied on by
the district court in awarding custody are both “articulable and
articulated in the judge’s written findings and conclusions.”
Smith, 726 P.2d at 426. For example, we note the following
findings of the court: that a custody evaluator rated Mother as
the better parent than Father; that Father lived 43 miles from the
child’s school; that the parties admitted to two physical
altercations between the parties in the presence of the child in
which Father was the aggressor; that Mother had the greater
ability to provide personal child care; that Father relied
exclusively on surrogate care; that Father cut off telephone
communication between Mother and the child for a period of
months during his parent time; and that Father failed to list
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Mother as a parent or an emergency contact at the child’s child-
care facility. 5
¶42 The best practice may well be to make findings on each of
the statutory factors that sections 30-3-10 and 30-3-10.2(2) require
the court to consider. And we recognize that the court’s findings
here do not line up neatly with the factors listed in those
sections, rule 4-903, or Hutchison. But a court’s findings are
determined at least in part by “the facts before it.” Hudema v.
Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491.
¶43 In sum, Father failed to preserve his objection based on
custody considerations. But even if he had preserved this
objection, we could not say that the district court’s action was
“so flagrantly unjust as to constitute an abuse of discretion.” See
Doyle v. Doyle, 2011 UT 42, ¶ 40, 258 P.3d 553 (citation and
internal quotation marks omitted).
V. The District Court Did Not Abuse Its Discretion in Rejecting
the Court-Appointed Evaluator’s Recommendations
¶44 Father next contends that the district court erred in
rejecting the recommendations of Dr. Todd Dunn, the court-
appointed custody evaluator. “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.” R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d
137. We will not set aside the district court’s findings unless
clearly erroneous. Woodward v. LaFranca, 2013 UT App 147, ¶ 7,
305 P.3d 181.
5. We note that “interference with visitation may be a factor
relevant to the issues of both a change in circumstances and the
child’s best interests.” Smith v. Smith, 793 P.2d 407, 411 (Utah Ct.
App. 1990).
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¶45 The district court’s findings leave no doubt why the court
rejected Dr. Dunn’s recommendation. For example, the court
found that Dr. Dunn relied heavily on text messages between the
parties given to him by Father without allowing Mother the
opportunity to explain or rebut them and without including all
of Father’s corresponding text messages; Dr. Dunn initially
misapplied the “intimate partner violence schema”; Dr. Dunn
supplied information to Father that he withheld from Mother;
Dr. Dunn failed to assess the step-parents’ role in child care; and
Dr. Dunn failed to consider Father’s alcohol use. For reasons
explained by Father, the court might have found otherwise on
each of these points. But Father does not demonstrate—or even
assert—that any of these findings are clearly erroneous. We thus
conclude that the court here did “articulate some reason for
rejecting” Dr. Dunn’s recommendation. See R.B., 2014 UT App
270, ¶ 18.
VI. The District Court Did Not Abuse Its Discretion in Allocating
Evaluator Costs
¶46 Finally, Father argues that the district court erred in
requiring him to pay Dr. Dunn’s expert witness fees. “The
determination to award taxable costs is within the sound
discretion of the trial court and will not be disturbed absent an
abuse of that discretion.” Ong Int’l (USA), Inc. v. 11th Ave. Corp.,
850 P.2d 447, 460 (Utah 1993).
¶47 Although Father’s actual income is approximately three
times as much as Mother’s imputed income, the district court
ordered the parties to bear their own attorney fees and costs. 6 In
addition, the court ordered Father to pay the fee of Dr. Dunn,
6. With one exception: the court ordered Mother to pay Father
within 90 days $367.20 incurred by him when Mother failed to
appear at the pretrial conference as ordered by the court.
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whom the court appointed, and Mother to pay the fee of Dr.
Davies, whom Mother retained.
¶48 On appeal, Father argues that “the trial court failed to
indicate why [it] would require only [Father] to pay the costs of
the court-appointed evaluator,” Dr. Dunn. Father’s appellate
claim parallels his post-trial motion seeking an “explanation as
to why [Father] should have to bear the entire costs of the
Court’s expert.” But it ignores the explanation given by the
district court in response to that motion: “This decision was
equitable, in part, because [Father’s] income is significantly
higher than that of [Mother,] who does not work outside of her
home and has only minimum wage imputed to her.” “Because
[Father] fails to address the basis of the district court’s ruling, we
reject this challenge.” See Golden Meadows Props., LC v. Strand,
2010 UT App 257, ¶ 17, 241 P.3d 375. 7
CONCLUSION
¶49 For the reasons stated above, the judgment of the district
court is affirmed.
7. In addition, because Father’s brief contains no citation to the
law relevant to this point, it falls short of demonstrating that the
district court erred. See Simmons Media Group, LLC v. Waykar,
LLC, 2014 UT App 145, ¶ 37, 335 P.3d 885.
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