Robertson v. Robertson

2016 UT App 55

THE UTAH COURT OF APPEALS

RACHAEL ROBERTSON,
Appellee,
v.
JOSHUA M. ROBERTSON,
Appellant.

Memorandum Decision
No. 20140807-CA
Filed March 24, 2016

Second District Court, Ogden Department
The Honorable Noel S. Hyde
No. 124900490

John M. Webster and Kenji Kawa, Attorneys
for Appellant
Rachael Robertson, Appellee Pro Se

SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and STEPHEN L.
ROTH concurred. 1

BENCH, Senior Judge:

¶1 Joshua M. Robertson challenges the trial court’s ruling in
favor of his ex-wife, Rachael Linares (fka Robertson),
determining that it was in the children’s best interests to relocate
to Colorado with Linares. We affirm. 2

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).

2. Linares’s pro se brief fails to provide any citation to the record
and appears to rely on a number of facts not in the record. See
Utah R. App. P. 24(a)(7) (“All statements of fact and references to
(continued…)
Robertson v. Robertson

I. Motion to Continue

¶2 Robertson first argues that the trial court abused its
discretion by denying his motion to continue the trial. “We
review a trial court’s decision on a motion to continue for an
abuse of discretion,” Vaughan v. Romander, 2015 UT App 244, ¶ 6,
360 P.3d 761, and “will conclude that a trial court has abused
[its] discretion only if the decision to grant or deny a continuance
is clearly unreasonable and arbitrary,” id. ¶ 10 (citation and
internal quotation marks omitted).

¶3 Robertson asserts that a continuance was necessary to
allow the relocation evaluator to examine the physical living
arrangements of the new home Linares and her new husband
had moved into. The trial court recognized that the physical
living arrangements were relevant to its analysis but determined
that a continuance was unnecessary given that “substantial
additional factors” were relevant to the analysis, that there were
witnesses who could “testify . . . and provide direct response to
any questions” regarding the new living arrangements, and that
it was “in the interest of all parties that this matter be addressed
and resolved as timely as possible.” This decision was not
unreasonable or arbitrary. The trial court clearly articulated
valid reasons for denying the motion, and we are not convinced
that giving the evaluator a chance to review the new living
arrangements would have affected the outcome of the case. The
possibility that a continuance would have allowed Robertson to
rebut evidence indicating that the new home was an

(…continued)
the proceedings below shall be supported by citations to the
record in accordance with paragraph (e) of this rule.”). To the
extent that Linares relies on “facts not properly cited to, or
supported by, the record,” we do not consider them in our
analysis. See Uckerman v. Lincoln Nat’l Life Ins. Co., 588 P.2d 142,
144 (Utah 1978).

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Robertson v. Robertson

improvement on the old one was speculative at best.
Furthermore, given that this factor was only one of many the
trial court considered, we are not convinced that the trial court
would have reached a different conclusion even if it had found
that the physical living arrangements factor weighed in
Robertson’s favor. See infra ¶ 8.

II. Custody Determination

¶4 Robertson next challenges the trial court’s determination
that relocation was in the children’s best interests. See Pingree v.
Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (“In all custody
determinations, the district court’s primary focus must be on the
best interests of the child.” (citation and internal quotation
marks omitted)), petition for cert. filed, Feb. 16, 2016 (No.
20160101). The trial court considered a number of factors
relevant to this determination. The court found that both parents
had an equal bond with the children and that this factor did not
weigh in favor of either party. The court found that factors
concerning the moral standards of the parties, their ability to
encourage the children’s relationship with a non-custodial
parent, the children’s physical living arrangements, the parents’
ability to provide personal rather than surrogate care, and which
party had historically been the children’s primary caretaker
weighed in favor of relocation. The court found that extended
family relationships and community ties in Utah weighed
against relocation. The court did not consider the event of
relocation itself to be a substantial factor, observing that the
children had previously relocated within Utah and had
demonstrated an ability to adapt to such changes, and indicated
that it believed “the relationships and arrangements” it had
considered were “more significant.” Based on these findings, the
trial court concluded that relocation was in the children’s best
interests.

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Robertson v. Robertson

A. Factual Findings

¶5 Robertson challenges the trial court’s findings regarding
the parties’ moral standards, their ability to encourage the
children’s relationship with the other parent, and the physical
living arrangements. “We will not disturb a trial court’s findings
of fact unless they are clearly erroneous,” that is, unless “they
are in conflict with the clear weight of the evidence, or . . . this
court has a definite and firm conviction that a mistake has been
made.” Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262
(citation and internal quotation marks omitted).

¶6 Robertson argues that the trial court should not have
determined that Linares had higher moral standards than he did
based upon the fact that she and her husband were married
while Robertson was cohabitating with his girlfriend. Robertson
asserts that the “significant shift in culture” that has taken place
over the past thirty years means that his decision to cohabitate
rather than marry should not reflect negatively upon his moral
standards. “‘Moral standards’ are a statutory consideration, and
may be relevant to a custody determination to the extent they
affect the children’s best interests.” Roberts v. Roberts, 835 P.2d
193, 197 (Utah Ct. App. 1992) (citing Utah Code Ann. § 30-3-10
(1989) (current version at id. (LexisNexis Supp. 2015))). Compare,
e.g., Hudema v. Carpenter, 1999 UT App 290, ¶ 35, 989 P.2d 491
(holding that the trial court erred in determining that the moral
standards factor weighed against a mother who cohabitated with
her fiancé for six weeks prior to their wedding where there was
no “evidence indicating[] that this short period of cohabitation
had any negative impact on [her child’s] welfare”), with Thomas
v. Thomas, 1999 UT App 239, ¶¶ 10–11, 987 P.2d 603 (holding that
the trial court did not exceed its discretion in relying on the
moral standards factor in awarding custody to a father where it
found that the mother’s extramarital relationship had negatively
impacted her parenting). In concluding that the moral standards
factor weighed in favor of Linares, the trial court explained that
marriage is more stable than cohabitation. We agree with the

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trial court that the stability of a parent’s romantic relationships
affects the children’s best interests, and the court considered the
circumstances of the parties in assessing this factor, which it
considered to weigh only “slightly in favor of the mother.” Thus,
the trial court’s determination that this factor weighed in favor
of relocation is not clearly erroneous.

¶7 Robertson next asserts that the trial court erred in finding
that Linares was better able to encourage the children’s
relationship with a noncustodial parent. The trial court found
that both parties had historically “demonstrated adequate
capacity to be accommodating to one another’s needs” and that
their “communications and interaction . . . [had] been
remarkably civil and positive as it relates to accommodations in
the best interest of the children.” Nevertheless, the trial court
ultimately determined that Linares was slightly more likely to
“encourage continuing contact with a non-custodial parent”
because she had repeatedly requested that Robertson engage
with her in “an open ended discussion” about her desire to
relocate, while, “for the most part,” Robertson’s “reaction to
those requests was an adamant refusal to consider such
discussions.” Because Robertson had flatly refused to discuss the
relocation issue with Linares, the trial court determined that
Linares had “a slightly greater ability . . . to be accommodating
to the needs of” Robertson. To the extent that Linares’s initial
refusal to provide Robertson with the address of her new home
or information about her fiancé appeared antagonistic, the trial
court found that her actions were naïve rather than vindictive
and that she ultimately did provide the requested information.
Robertson’s challenge to this finding merely reargues the
evidence but does not demonstrate that the trial court’s finding
was against the clear weight of the evidence. See Brown, 2015 UT
App 161, ¶ 5.

¶8 Finally, Robertson challenges the trial court’s
determination that the physical living arrangements factor
weighed slightly in favor of Linares because “the Court [had]

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Robertson v. Robertson

more specific information about the location and residence in
Colorado” than Robertson’s residence in Utah. In evaluating this
factor, the trial court seemed to focus more on whether the
residence in Colorado was adequate than whether it was better
than the residence in Utah. Cf. Woodward v. LaFranca, 2013 UT
App 147, ¶ 28, 305 P.3d 181 (explaining that the trial court erred
by finding that the emotional stability factor weighed in favor of
the mother where it found that the mother was emotionally
stable but not that she was more emotionally stable than the
father). For example, the court acknowledged general testimony
indicating that schools and access to medical care were better in
Utah than in Colorado but rejected that testimony because there
was no specific evidence indicating that the schools and medical
care in Colorado were “inadequate or substandard or would
subject the children to any risk of any kind.” Further, Robertson
testified that in his house, four children would be sharing three
bedrooms, whereas Linares’s husband indicated that in his new
house, seven children would be sharing three bedrooms. Thus,
the evidence does suggest that the children would have had
more space in Robertson’s home than in Linares’s. But we are
not prepared to say, in light of the limited and generalized
evidence before the trial court regarding Robertson’s home, that
the trial court’s finding was against the clear weight of the
evidence. And even if we were ultimately to agree with
Robertson that this finding was clearly erroneous, the district
court concluded that this factor weighed only “slightly” in favor
of Linares, and the other factors weighing in favor of relocation
were ultimately sufficient to support the trial court’s
determination that relocation was in the children’s best interests.

B. Best Interests

¶9 Robertson asserts that the trial court exceeded its
discretion in determining that relocation was in the children’s
best interests because although “several factors . . . slightly
support relocation[,] . . . the majority of the factors all weigh
against a relocation.” “We review the district court’s . . . custody

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determinations for an abuse of discretion.” Pingree v. Pingree,
2015 UT App 302, ¶ 6, 365 P.3d 713, petition for cert. filed, Feb. 16,
2016 (No. 20160101).

¶10 Even assuming that the trial court should have found the
physical living arrangements factor to weigh against relocation,
the remaining factors support the trial court’s determination that
relocation was in the children’s best interests, particularly in
light of the weight the court assigned to the primary caretaker
factor. Robertson attempts to downplay the significance of the
factors the court found in favor of relocation and to emphasize
the factors weighing against relocation. For example, he asserts
that the trial court overstated the significance of the primary
caretaker and surrogate care factors because, in practice, he had
exercised more parent time than he was awarded in the parties’
decree of divorce 3 and because he would be able to provide
personal care for the children for all but three days per week. 4
But he ultimately does not contest the trial court’s determination
that these factors weighed in favor of relocation, and as
discussed above, the findings he does contest are not clearly
erroneous.

3. Although the parties’ divorce decree awarded Robertson
every Tuesday and Wednesday and every other Thursday, the
parties mutually agreed for Robertson to have the children every
Tuesday, Wednesday, and Thursday. But even under the
modified arrangement, Linares had four days per week with the
children compared to Robertson’s three days.

4. The trial court found that Linares would be available to care
for the children full time and that even though Robertson
worked only three days per week, his “work requires him to be
out of the home during the weekend period which may be the
primary time that the children are available and will need care.”

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Robertson v. Robertson

¶11 “Although the court considers many factors, each is not
on equal footing. Generally, it is within the trial court’s
discretion to determine, based on the facts before it . . . , where a
particular factor falls within the spectrum of relative importance
and to accord each factor its appropriate weight.” Hudema v.
Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491; see also Sukin v.
Sukin, 842 P.2d 922, 924 (Utah Ct. App. 1992) (“There is no
definitive checklist of factors to be used for determining custody
since such factors are highly personal and individual, and do not
lend themselves to the means of generalization employed in
other areas of the law . . . .” (omission in original) (citation and
internal quotation marks omitted)). In this case, the trial court
determined that it was appropriate to give the primary caretaker
factor “more weight than any of the other individual factors in
this case,” acknowledging the evaluator’s focus on that issue in
reaching his ultimate recommendation in favor of relocation and
his opinion that there was “greater risk associated with the . . .
children not living primarily with their mother” than the risk
associated with relocation. Further, the court found that
additional factors supported relocation and that those factors
ultimately outweighed the factors weighing against relocation.

¶12 As the trial court observed, this was “an extremely
difficult decision in a difficult circumstance” because “both
parents in this case have established a strong bond and
relationship with their children,” “[b]oth care deeply for the
welfare and concern of their children,” and “both have
demonstrated that concern through their actions.” Cf. Hudema,
1999 UT App 290, ¶ 38 (reviewing a trial court’s custody
determination in an “admittedly close case in which the court
had to choose between two good parents”). Indeed, “the
determination of custody may frequently and of necessity
require a choice between good and better.” Tucker v. Tucker, 910
P.2d 1209, 1214 (Utah 1996) (citation and internal quotation
marks omitted). In such cases, we will generally “defer to the
trial court’s broad discretion.” Hudema, 1999 UT App 290, ¶ 38.

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Robertson v. Robertson

Having reviewed the trial court’s findings and its careful
consideration of the relevant custody factors in this case, we are
not convinced that the trial court exceeded its discretion in
determining that relocation was in the children’s best interests.

III. Relocation Statute

¶13 Finally, Robertson argues that the trial court erred in
determining that the relocation statute did not require the
relocation notice to include information about where and with
whom the parent is relocating. 5 “The trial court’s interpretation
of a statute is a question of law that we review for correctness.”
Cox v. Cox, 2012 UT App 225, ¶ 10, 285 P.3d 791.

¶14 Utah’s relocation statute provides that a parent intending
to move “150 miles or more from the residence of the other
parent” “shall provide 60 days advance written notice of the
intended relocation to the other parent.” Utah Code Ann. § 30-3-
37(1)–(2) (LexisNexis Supp. 2015). The statute includes no
explicit requirement that the relocating parent inform the other
of additional details regarding the relocation, such as the
relocating parent’s new address or the identity of the person
with whom the parent is relocating. See id. And we can see no
basis for reading such a requirement into the statute. This is not
to say that it would not be appropriate for a relocating parent to
provide such information or even for a court to order that such
information be provided. Indeed, it would generally be expected
that two people attempting to co-parent their children would
need to have one another’s addresses and other contact

5. Robertson alternatively suggests that if the trial court did
correctly interpret the relocation statute, then the statute is
unconstitutionally vague. This argument is unpreserved and
inadequately briefed, and we therefore decline to consider it
further. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99
P.3d 801; State v. Thomas, 961 P.2d 299, 304–05 (Utah 1998).

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Robertson v. Robertson

information. However, the statute does not require that such
information be included in the relocation notice itself, and in
fact, there may be circumstances where it would be reasonable
for a relocating parent to withhold such information, e.g., where
the relocating parent is the subject of a protective order against
the other parent or there has been a history of serious conflict
between the parents. In any event, Robertson does not explain
how Linares’s failure to include her address and the name of her
new husband in her initial relocation notice affected the outcome
of the case. And as Robertson ultimately obtained this
information prior to the evidentiary hearing, we fail to see how
he was prejudiced by any alleged deficiency in the notice.

IV. Conclusion

¶15 We conclude that the trial court did not exceed its
discretion in denying Robertson’s motion for a continuance or in
determining that relocation was in the children’s best interests.
Further, we conclude that a relocating parent is not statutorily
required to provide the other parent with specific information
regarding the details of her relocation. Accordingly, we affirm.

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