Brown v. Babbitt

2015 UT App 291

THE UTAH COURT OF APPEALS

KELSEY BROWN,
Appellee,
v.
ANTHONY BABBITT,
Appellant.

Memorandum Decision
No. 20140918-CA
Filed December 3, 2015

Third District Court, West Jordan Department
The Honorable Mark S. Kouris
No. 104400226

Terry R. Spencer, Attorney for Appellant
J. Preston Stieff, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY
concurred.

ORME, Judge:

¶1 Anthony Babbitt, having lost a separate but related
appeal, see Brown v. Babbitt, 2015 UT App 161, 353 P.3d 1262,
once again appeals the trial court’s custody and parent-time
orders regarding his and Kelsey Brown’s child (Child). He raises
six issues in the current appeal, three of which our previous
decision resolved.1 Babbitt’s claims not resolved by our prior

1. These three resolved issues are (1) a challenge to the trial
court’s refusal to allow him, during a hearing held to determine
the accuracy of the trial court’s factual findings in the divorce
decree, to present evidence purportedly demonstrating perjury
by Brown; (2) a challenge to the trial court’s decision limiting
(continued…)
Brown v. Babbitt

decision are challenges to (1) the sufficiency of the evidence
supporting the trial court’s conclusion that Brown did not
perjure herself regarding her residency during the divorce trial;
(2) the trial court’s conclusion that even if Brown had committed
perjury, neither her alleged perjury nor her move to North
Carolina constituted substantial and material changes in
circumstances that would justify altering the court’s original
parent-time and custody determinations; and (3) the validity of
the trial court’s decision to further limit Babbitt’s parent-time in
the total absence, he alleges, of proper testimony or appropriate
briefing from the parties on the issue. We affirm.

¶2 Babbitt and Brown married in July 2009. Although their
marriage was brief—Brown filed for divorce six months later,
less than a week after Child’s birth—the legal battle for custody
of Child has endured nearly six years.

¶3 Early in the divorce proceeding, the trial court appointed
a custody evaluator to assess the best interests of Child. After
receiving the evaluator’s report, which flattered neither parent
but was particularly negative as to Babbitt, the trial court
conducted a two-day bench trial in December 2012 and
ultimately awarded sole physical and legal custody of Child to
Brown. The court supported this decision, included in the
divorce decree entered in April 2013, with the evaluator’s
conclusion that Babbitt engaged in a pattern of cruel and

(…continued)
Babbitt’s parent-time to less than the statutory minimum under
Utah Code sections 30-3-32(2)(b) and 30-3-34(2) because it failed
to make factual findings required under those sections; and (3) a
claim that the purported violations of Utah Code sections 30-3-
32(2)(b) and 30-3-34(2) amounted to a deprivation of Babbitt’s
fundamental due process right to parent Child. See Brown v.
Babbitt, 2015 UT App 161, ¶¶ 8–12 & n.1, 353 P.3d 1262. We will
have occasion to revisit these arguments, and their resolution in
our prior decision, in the course of resolving the instant appeal.

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Brown v. Babbitt

deceitful behavior designed to manipulate those closest to him
and that his behavior during the custody action demonstrated
less a love for Child and desire to care for her than Babbitt’s own
interest in ‚winning‛ the custody dispute.2 For example, the
court found that Babbitt intentionally failed to exercise parent-
time for over a year in order to fabricate a custodial interference
claim against Brown. Babbitt also engaged in inappropriate
behavior, such as trying to take Child with him following a
supervised visit in May 2012 and calling Child by a name other
than her own.3

¶4 The court also noted Babbitt’s history of domestic
violence, failure to obey previous court orders with regard to the
payment of child support for his other children, and decision to
feed Child milk-based formula during supervised visits after
being ordered not to do so because Child had had adverse
reactions to milk-based products. These factors led the court to

2. Not content to limit the dispute to the prolonged custody
battle, Babbitt has expanded the war to two additional fronts. He
sued in federal court the judge who presided over the divorce,
along with the presiding judge who ruled on Babbitt’s motions
to disqualify that judge, and the executive director and members
of Utah’s Judicial Conduct Commission because the Commission
dismissed his complaint against the two judges. See
Memorandum Decision and Order Granting Motion to Dismiss,
Babbitt v. Kouris, No. 2:15-cv-208 (D. Utah, Oct. 5, 2015), available
at http://www.law.justia.com/cases/federal/district-courts/utah/
utdce/2:2015cv00208/96007/17/. That lawsuit was recently
dismissed. See id. And he has sued Child’s North Carolina
therapist in Utah’s Third District Court. See Complaint, Babbitt v.
Bertolino, No. 140907250, 2014 WL 5454638 (Oct. 20, 2014).

3. The evaluator’s report characterizes such behavior as
‚consistent with behavior found in parents who abduct their
children and hide them from their other parent.‛

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Brown v. Babbitt

express concern for Child while in Babbitt’s care and thus to
restrict Babbitt to less than the minimum statutory parent-time.

¶5 In the divorce decree, the trial court directed Babbitt to
undergo psychotherapy with one of six specified
psychotherapists. According to the divorce decree this therapy
was to

continue for at least 40 sessions in a calendar year.
[Babbitt] may only be released from therapy when
the therapist deems that he is no longer a danger to
[Child], that he no longer uses manipulation and
deceit for his own gain, and when the therapist can
safely assure that [Babbitt] will not take [Child]
from [Brown]. Additionally, the . . . therapist must
conclude that [Babbitt] has ceased to engage in
aggressive, manipulative or coercive behavior.
[Babbitt] will provide the therapist a copy of . . .
these Findings of Fact and Conclusions of Law.

Babbitt disputed the majority of the trial court’s findings and
filed a rule 52 motion for the court to reconsider or alter every
finding adverse to him.4 See Utah R. Civ. P. 52(b).

¶6 In June 2013, the trial court held a hearing on Babbitt’s
rule 52(b) motion and declined to make any changes to its
findings. Also at this hearing, Babbitt raised the argument that
Brown perjured herself during the original trial because Brown
stated that she resided in Arizona, but Babbitt was convinced
that Brown actually resided in North Carolina. The trial court,

4. On at least one other occasion Babbitt has had some difficulty
accepting the sufficiency of evidence supporting findings that do
not portray him in a positive light. See State v. Babbitt, 762
N.W.2d 58, 60–61 (Neb. 2009) (upholding Babbitt’s conviction for
criminal impersonation despite Babbitt’s challenge ‚that the
State failed to adduce sufficient evidence to support his
convictions‛).

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Brown v. Babbitt

however, refused to address Babbitt’s claim or allow Babbitt to
introduce evidence supporting the claim during this hearing
because ‚*t+hat’s relitigating the case and we’re not going to
relitigate the case.‛5 In July, Babbitt filed both his first motion to
disqualify the trial court judge6 and his first notice of appeal.7

5. In his prior appeal, Babbitt contended that this refusal was a
violation of the ‚open courts‛ provision of the Utah
Constitution. Brown v. Babbitt, 2015 UT App 161, ¶ 12, 353 P.3d
1262. Babbitt raises this argument again in the instant appeal
with regard to the same alleged violation. We previously
concluded that this argument was ‚moot because Babbitt ha[d]
since been given the opportunity to present this evidence in a
hearing on his petition to modify the decree of divorce.‛ Id. After
reviewing Babbitt’s argument in this appeal and our decision in
Babbitt’s first appeal, we see no reason to disturb our previous
ruling, which is the law of the case. See generally IHC Health
Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 26, 196 P.3d 588
(‚*U+nder the law of the case doctrine, ‘a decision made on an
issue during one stage of a case is binding in successive stages of
the same litigation.’ Thus, the doctrine allows a court to decline
to revisit issues within the same case once the court has ruled on
them.‛) (footnote omitted) (quoting Thurston v. Box Elder County,
892 P.2d 1034, 1037 (Utah 1995)).

6. The presiding judge denied this motion. Babbitt’s appellate
brief fails to mention a second, prohibited motion to disqualify
the trial judge, which the presiding judge also denied. See Utah
R. Civ. P. 63(b)(1)(C) (‚No party may file more than one motion
to disqualify in an action.‛).

7. Babbitt’s first appeal challenged the April 2013 divorce decree
and the June 2013 denial of his rule 52(b) motion. Brown, 2015 UT
App 161, ¶¶ 2–4. In that appeal, Babbitt argued—as he does
here—that the court failed to make the findings required by
Utah Code sections 30-3-32(2)(b) and 30-3-34(2) before restricting
(continued…)

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¶7 Just over a year later, on August 13, 2014, the trial court
held an evidentiary hearing related to Brown’s alleged perjury
and Babbitt’s additional claims that Brown’s ‚perjury‛ and move
to North Carolina following the divorce constituted ‚substantial
and material change[s] in circumstances supporting a
modification of the existing custody and/or parent-time
provision of the decree of divorce.‛ At the hearing, both Babbitt
and Brown had the opportunity to present evidence and the trial
court heard and received evidence submitted by Babbitt.

¶8 Also at the hearing, counsel for Babbitt informed the court
that Babbitt had completed the required psychotherapy some
time before, but with a different therapist because none of the
therapists listed in the order were available. Counsel assured the
court that ‚within 10 days‛ the court would receive a letter from
Babbitt’s therapist attesting to the completion of the therapy and
‚saying the therapy on issues A through Z ha*d+ been
completed‛ as required by the trial court. The court told Babbitt
that it would consider the letter in reaching its decision. Counsel
for Brown also requested that the trial court decrease Babbitt’s
parent-time. Babbitt interposed no objection to the making of
this request, but his counsel did argue that Babbitt’s visitation
should remain at two visits per month. Five days later, the trial
court, in a letter directed to counsel for both parties, reiterated
that the psychotherapist’s letter must specify that all of the
requirements imposed by the court had been satisfied.

(…continued)
his parent-time with Child. Id. ¶¶ 8–10. On this issue, we held
that the trial court did not commit error because its findings
were adequate to support its decision. Id. ¶¶ 9, 11. As counsel for
Babbitt acknowledged at oral argument in the instant appeal,
that decision necessarily disposes of Babbitt’s claim as renewed
in this appeal. See id. ¶ 11. Furthermore, because the trial court
fulfilled its statutory responsibility, Babbitt’s constitutional-
rights argument premised upon the supposed violation of the
same statutes fails as well. See id. ¶ 11 n.1.

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Brown v. Babbitt

¶9 On August 25, 2014,8 about one week after receiving the
court’s letter, Babbitt’s counsel filed a letter written by a licensed
professional counselor (the LPC). The LPC’s letter was deficient
in nearly every material respect. The letter, dated January 31,
2013, stated that Babbitt completed therapy in December 2012,
which was before the trial court issued the April 2013 divorce
decree that required particularized therapy as spelled out in the
decree and that was necessarily to be accomplished thereafter.
As noted, the trial court had been forewarned that the LPC did
not appear on the list of approved therapists from which Babbitt
was supposed to choose. But the court had not been advised that
the letter submitted by the LPC would document therapy
completed pre-decree and that it would not specify that the
several items mandated in the divorce decree had been
completed. Contrary to what the decree required, the letter
merely recited that Babbitt had completed therapy, was working
on employing ‚I statements‛ and ‚on being fine with everyone
not agreeing with him,‛ understood that it would be harmful to
take Child away from her mother, and had ‚developed different
strategies to address *his+ problems.‛ Even more concerning,
because the therapy conducted by the LPC was completed in
December 2012, Babbitt could not possibly have presented the
LPC with a copy of the trial court’s Findings of Fact and
Conclusions of Law, as the divorce decree required, because
those findings were not even entered until some months later.
And again, the therapy referred to in the letter was therapy that
occurred prior to issuance of the divorce decree, not after.

¶10 In mid-September 2014, the trial court issued a
memorandum decision addressing the perjury and residency
issues as well as Babbitt’s apparent bad faith in regard to his
attempt to demonstrate completion of the psychotherapy

8. The trial court’s September 17, 2014 order contains an
apparent typographical error because it states that the court
received the letter on April 25, 2014, even though Babbitt’s
counsel filed the letter on August 25, 2014.

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ordered in the divorce decree. As to the perjury claim, the trial
court concluded that Brown did not perjure herself at trial when
she claimed to reside in Arizona, even though she ‚travelled
frequently to Utah and North Carolina to visit family and for
*Child+ to see *Babbitt+.‛ The court further concluded that even if
Brown did perjure herself, Babbitt failed to show that Brown’s
perjury constituted a material change in the circumstances
underlying the court’s custody determination. Finally, the court
concluded that even if Brown’s recent move to North Carolina
constituted a material change in circumstances, Babbitt failed ‚to
show that modification would be an improvement for and in the
best interest of [Child].‛ Babbitt’s noncompliance with the
psychotherapy component of the original divorce decree,
coupled with his apparent bad faith in submitting a therapist’s
letter dated before entry of the divorce decree and which
addressed an earlier round of therapy, gave the court ‚concern*+
for the health and wellbeing of [Child].‛

¶11 Given its concerns, the trial court denied Babbitt’s petition
to modify the divorce decree and instead decreased Babbitt’s
parent-time. The original divorce decree had ordered two
monthly visits with Child, totaling six hours, but also providing
that in early 2014, parent-time would increase to two monthly
visits totaling eight hours. The trial court, in its September 2014
memorandum decision, amended Babbitt’s parent-time by
countermanding the change to eight hours and instead leaving
his visits with Child at twice per month for a total of six hours.

¶12 Babbitt challenges the sufficiency of the evidence
supporting the trial court’s findings that neither Brown’s alleged
perjury nor her recent move to North Carolina constituted a
material change in circumstances justifying a change in custody.
Babbitt does so, however, without properly marshaling the
evidence and by misusing the addendum to his appellate brief.
This same failure characterized his prior appeal and was
highlighted in our prior decision, and for the reasons explained
there, we again decline to disturb the trial court’s factual
findings. See Brown v. Babbitt, 2015 UT App 161, ¶ 7, 353 P.3d
1262.

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Brown v. Babbitt

¶13 Babbitt’s remaining claim is that the trial court violated
the open courts provision of the Utah Constitution and the due
process clause of the United States Constitution when it
modified Babbitt’s parent-time schedule. We disagree.

¶14 The trial court imposed a very specific therapy regimen in
the divorce decree. See supra ¶ 5. One of several specified
therapists had to be consulted post-decree, and the therapist had
to certify, in writing, Babbitt’s compliance with very detailed
requirements. Despite counsel’s assurances of imminent
compliance, Babbitt did not consult one of the approved
therapists in the post-decree timeline envisioned by the court,
and the therapist’s letter he submitted met none of the decree’s
requirements. While the court apparently acquiesced in Babbitt’s
consulting a different therapist upon being advised that Babbitt
could not secure the services of any of the specified therapists,
there was no corresponding change in the substantive
requirements imposed by the trial court. Indeed, the court made
a point of reiterating that those requirements continued to apply.
Nonetheless, Babbitt wholly failed to comply with those
requirements. The letter submitted on his behalf documented
therapy that had been provided much earlier. And it included
none of the specific assurances mandated by the decree. Thus,
the submission of the LPC’s letter did not satisfy the decree’s
requirements and, frankly, demonstrated a disregard for those
requirements. And given how long he was given to comply and
how specific the court was in spelling out its expectations,
Babbitt’s right to due process was simply not violated.9 See

9. Despite his protest on appeal, Babbitt acquiesced in the trial
court’s reconsideration of his parent-time. During the August 13
hearing, the trial court informed Babbitt that the therapist’s letter
would be ‚include*d+ . . . as part of *its+ decision.‛ Counsel for
Brown, citing Babbitt’s continued problematic behavior,
violation of the court’s order prohibiting Babbitt from taking
Child to his home during visits, lack of empathy toward Child
and Brown, and use of welfare checks on Child conducted at
(continued…)

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generally Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983)
(‚‘[T]he demands of due process rest on the concept of basic
fairness of procedure and demand a procedure appropriate to
the case and just to the parties involved.’‛) (quoting Rupp v.
Grantsville City, 610 P.2d 338, 341 (Utah 1980)).

¶15 As to the decision reached, it was well within the trial
court’s discretion given that Babbitt did not comply with the
clear mandates of the divorce decree. Given this lack of
compliance, the trial court could reasonably find that Babbitt
remained a threat to Child. And Babbitt’s apparent willingness
to mislead the court about the timing and adequacy of his
ordered therapy only buttresses the legitimacy of the court’s
concern.

¶16 The trial court had ample justification to amend its earlier
order to eliminate the provision giving Babbitt an increased

(…continued)
Babbitt’s request to harass Brown, asked the trial court to
decrease Babbitt’s parent-time. During the hearing, Babbitt
neither contested nor objected to the court’s renewed
consideration of its prior order in this regard. If Babbitt had an
objection to the trial court’s reconsideration of his parent-time,
the time to object was during the hearing when opposing counsel
asked the court to reconsider its order and the court indicated
that it might do so. See, e.g., Hodges v. Smoot, 125 P.2d 419, 421
(Utah 1942) (determining that where there is ‚apparent*+ if not
complete acquiescence [in] what the court did as a matter of
procedure,‛ ‚*n+either party is in a position to complain as to
*that+ procedure‛ on appeal); Clark Props., Inc. v. JDW-CM, LLC,
2012 UT App 163, ¶ 8, 282 P.3d 1009 (‚*W+hen a party is
surprised by a court’s action, . . . . it ha[s] an obligation to
contemporaneously express those concerns in some way.‚).

20140918-CA 10 2015 UT App 291
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amount of supervised parent-time.10 And far from overreacting
given its stated concerns, the court confirmed in its decision that
after Babbitt completes the required psychotherapy, it could still
consider allowing unsupervised parent-time.

¶17 Thus, the way forward for Babbitt is clear: he must
successfully complete the required therapy to the satisfaction of
the trial court. Having done so, and with the required assurances
from his therapist, he may then qualify for increased parent-time
and, perhaps eventually, unsupervised parent-time with Child,
if the trial court determines that it would be in the best interest
of Child. See Utah Code Ann. § 30-3-34.5(1), (5)–(6) (LexisNexis
Supp. 2014).

¶18 Affirmed.

10. Babbitt’s counsel argues that the ‚new‛ six-hour restriction
was the most restrictive order yet. But the only difference
between the new order and the original decree is that the twice-
a-month, six-hour parent-time scheme was to continue
indefinitely rather than being for only four months before being
automatically increased.

20140918-CA 11 2015 UT App 291