Spencer v. Spencer

2023 UT App 1

THE UTAH COURT OF APPEALS

AMBER SPENCER,
Appellee,
v.
REAGAN SPENCER,
Appellant.

Opinion
No. 20210437-CA
Filed January 6, 2023

Third District Court, West Jordan Department
The Honorable William K. Kendall
No. 144401038

Lillian M. Reedy, Attorney for Appellant
Steven B. Wall, Attorney for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred. 1

BENCH, Senior Judge:

¶1 Reagan Spencer appeals the district court’s denial of his
petition to modify a divorce decree. He argues that the court
abused its discretion in determining that there had not been a
substantial and material change in circumstances to warrant
modification. He also challenges several financial determinations
made by the court in relation to several orders to show cause. We
see no error in these determinations of the district court, and we
therefore affirm.

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
Spencer v. Spencer

BACKGROUND

¶2 Reagan and Amber Spencer were married in July 2007, and
they are the parents of two minor children. The parties separated
in May 2014, and Amber 2 petitioned for divorce soon thereafter,
requesting joint legal custody and sole physical custody of the
children. Reagan, through his attorney, timely responded,
requesting joint legal custody and joint physical custody. With his
response, Reagan requested several temporary orders addressing
custody, parent-time, property and debt of the parties, and other
financial issues, including child support. Among other things, he
requested that Amber be restrained from “drinking alcohol to
excess, smoking, using illegal drugs, or abusing prescription[]
drugs immediate[ly] prior to, or during any visitation with the
minor children” and that he be given the right to demand that
Amber submit to a drug test.

¶3 Amber obtained counsel shortly thereafter, at which point
she responded to Reagan’s request for temporary orders and
moved for a different set of temporary orders. Following a
hearing on the competing requests, at which both parties were
represented by counsel, the district court entered temporary
orders, awarding Amber and Reagan joint legal and physical
custody of the children and addressing various other issues raised
by the parties.

¶4 After the district court issued its temporary orders, the
parties mediated and stipulated to the appointment of a custody
evaluator. The parties also ultimately agreed on several other
terms, including terms regarding custody, parent-time, and child
support, and those stipulated terms were accepted by the court. A
final divorce decree incorporating those terms was entered in

2. Because the parties have the same last name, we refer to them
by their first names for clarity, with no disrespect intended by the
apparent informality.

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October 2014, which decree made no mention of the prior alcohol
and drug concerns raised by Reagan.

¶5 Two years later, in late 2016, Reagan moved for orders to
show cause why Amber had not followed certain terms of the
divorce decree, arguing that she had failed to reimburse him for
childcare expenses, reimburse certain debts, dismiss a protective
order, and provide required tax information. 3 Reagan also filed a
petition to modify the divorce decree, requesting sole physical
custody of the children due to an asserted change in
circumstances. Specifically, Reagan alleged that Amber worked
evenings and was away from home, that she failed to come home
at all some nights, that she allowed drug use in her house, that her
house was overcrowded, that she did not make sure the children
completed their homework, that she did not give the children
adequate care for health conditions, and that she “dr[ank]
excessively” while she had the children.

¶6 The parties attended another mediation and were able to
come to a partial agreement as to the issues involving the orders
to show cause before the court. This partial agreement was
thereafter accepted by the court. Later, though, Reagan again filed
motions for temporary orders granting him sole physical custody
of the children, arguing that Amber’s home was not a “safe
environment” for the children. After further mediation was
unsuccessful, the case was eventually certified for trial as to the
issues of custody and child support, and a bench trial was set for
October 2017.

3. In a different case, Amber obtained a protective order against
Reagan in 2011. The protective order was temporarily modified in
June 2014, around the time the divorce case was commenced. The
district court later dismissed the protective order in 2018, after the
parties had reached their stipulated divorce decree.

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¶7 However, in September 2017, the parties participated in a
settlement conference and were able to reach an agreement, which
was eventually memorialized in a court order. The agreement
maintained custody as listed in the original divorce decree but
specified further restrictions, including restrictions on the parties’
consumption of alcohol in front of the children and requiring the
parties to participate in individual counseling for one year.

¶8 In March 2018, Reagan again filed a motion for an order to
show cause, alleging that Amber was disobeying the prior order
by, among many other things, consuming alcohol in the children’s
presence. In May, the court commissioner certified many of the
issues raised for an evidentiary hearing. Shortly thereafter,
Reagan also requested an emergency temporary order awarding
him sole physical custody of the children, claiming that Amber
had been drinking and driving with the children. And he filed
another petition to modify the divorce decree, arguing that
Amber’s “alcohol problems and mental health issues have risen
to a level of harm to the children.” He further informed the court
that the Department of Child and Family Services (DCFS) “ha[d]
supported a finding that Mother has endangered the children.”
The court granted a temporary restraining order a few days later,
awarding Reagan physical custody of the children and awarding
Amber supervised parent-time. After a hearing later that month,
the district court entered a new temporary order, instructing
Amber to “continue counseling for substance abuse issues” and
“follow through with [the] DCFS action plan.” The order also
stated that Amber could “request hearing review . . . by showing
that she has complied with [the] DCFS action plan and proof of
her continued counseling progress.”

¶9 After many motions and determinations regarding
custody and other financial considerations over the following
year, Amber moved to vacate the district court’s most recent
temporary custody order and restore the previous order of joint
custody. Amber explained that Reagan’s allegations of drinking

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and driving were due to his discovery of empty beer cans on the
floor of her vehicle, which she asserted “she hadn’t gotten around
to discarding” after a prior camping trip. After Reagan saw the
beer cans, he had called police, who, after hearing Amber’s
explanation, told her that it was illegal to have even an empty
container in her car but did not cite her for the violation. Reagan
thereafter also notified DCFS of the incident, which commenced
an investigation and led to DCFS conducting interviews with
Reagan, Amber, and the children. The results of the investigation,
which were included with Amber’s motion, stated that “the kids
are believed to be safe at this time.” DCFS had completed risk
assessments on each of the parties’ homes and each had scored
“moderate due to priors.” DCFS determined no services were
needed and concluded, “The current risk in both homes is
considered low as there are no obvious signs of immediate risk.”
Amber also included with her motion a letter from her counselor,
stating that she had been attending counseling “on a regular
basis.”

¶10 In February 2020, after a hearing on Amber’s motion to
vacate the temporary custody change, the district court lifted the
supervision requirement from Amber’s parent-time and
normalized parent-time, but it also ordered her to participate in
random alcohol testing.

¶11 In September 2020, the district court held a bench trial on
Reagan’s petition to modify, and the court thereafter entered
findings and conclusions supporting its denial of Reagan’s
petition. The court recognized Amber’s “extremely active
regimen of 75 breathalyzer tests taken over a six-month period in
2020 which did not yield one positive test” and accounted for the
“few” times Amber had missed a test. 4 The court also examined
several incidents that Reagan had advanced to support his claims

4. The court acknowledged that one test did show “a minute trace
. . . due to having just taken cough syrup.”

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of Amber struggling with alcohol and ultimately determined,
“[Reagan] attempted to present testimony that was suggestive at
best and clearly exaggerated circumstances to support his
narrative that [Amber] had an alcohol problem and neglected the
children.” The court also questioned “just how concerned or
genuine were [Reagan’s] claims” of years of alcohol problems
where he had agreed to a 50/50 custody arrangement just months
before filing this petition to modify. Finally, the court was
persuaded by the contrary DCFS report, “which did not result in
any finding of a drug or alcohol problem of any kind nor did it
even result in a recommendation of a change of [Amber’s] custody
or even the recommendation of any further services of any type.”

¶12 The district court’s decision also addressed several
financial issues that had been raised by the parties while the
petition to modify was pending, specifically, issues relating to
child support, unreimbursed child-related expenses, and
unaddressed debts. And finally, the court denied all Reagan’s
requests for attorney fees but awarded Amber attorney fees in
substantially prevailing in her defense against the petition to
modify and one of the orders to show cause. Reagan then filed
this appeal.

ISSUES AND STANDARDS OF REVIEW

¶13 Reagan appeals the district court’s denial of his petition to
modify child custody. “When reviewing such a decision, we
review the district court’s underlying findings of fact, if any, for
clear error, and we review for abuse of discretion its ultimate
determination regarding the presence or absence of a substantial
change in circumstances. The district court’s choice of legal
standard, however, presents an issue of law that we review for
correctness.” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d
1159 (citations omitted).

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¶14 Reagan also challenges the district court’s determinations
on various financial issues, including the award of attorney fees
to Amber. “We do not reverse a trial court’s findings of fact unless
they are clearly erroneous. Further, to determine if the findings
are against the clear weight of the evidence and thus clearly
erroneous, we view the facts in the light most favorable to the
findings.” Kelley v. Kelley, 2000 UT App 236, ¶ 18, 9 P.3d 171
(quotation simplified). “While the trial court’s findings of fact in
divorce appeals are reviewed under the clearly erroneous
standard, its conclusions of law are reviewed for correctness and
given no special deference on appeal.” Bingham v. Bingham, 872
P.2d 1065, 1067 (Utah Ct. App. 1994) (quotation simplified). As to
the attorney fee issue, “generally, we review a trial court’s
decision regarding attorney fees in a divorce proceeding for an
abuse of discretion.” Hall v. Hall, 2013 UT App 280, ¶ 10, 316 P.3d
970 (quotation simplified).

ANALYSIS

I. Child Custody

¶15 Reagan argues that the district court did not properly
analyze the evidence presented related to his most recent petition
to modify. Specifically, he argues that because prior custody
determinations were stipulated agreements, a much lesser
showing of change of circumstances was required to modify the
custody arrangement. We disagree.

¶16 Modification of a joint custody order is appropriate when
the court finds that “(i) a material and substantial change of
circumstance has occurred; and (ii) a modification of the terms
and conditions of the order would be an improvement for and in
the best interest of the child.” Utah Code Ann. § 30-3-10.4(2)(b)
(LexisNexis 2019). Thus, “generally, the trial court need not
consider evidence of the child’s best interests until it finds

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changed circumstances.” Taylor v. Elison, 2011 UT App 272, ¶ 12,
263 P.3d 448 (quotation simplified). This requirement serves two
policies: First, to “protect[] children from the deleterious effects of
‘ping-pong’ custody awards” and, second, “to prevent the undue
burdening of the courts and the harassing of parties by repetitive
actions.” Id. ¶ 13 (quotation simplified).

¶17 But as Reagan rightly points out, the second of these
considerations “is at a particularly low ebb” when a custody
decree was not litigated in the first instance but was simply an
agreement of the parties. Id. ¶ 14 (quotation simplified). Further,
“an unadjudicated custody decree is not based on an objective,
impartial determination of the best interests of the child and may
in fact be at odds with the best interests of the child.” Id.
(quotation simplified). Thus, in cases involving an unadjudicated
custody decree, “a lesser showing [of change of circumstances]
will support modifying a stipulated award than would be
required to modify an adjudicated award.” Zavala v. Zavala, 2016
UT App 6, ¶ 17, 366 P.3d 422.

¶18 We have, however, more recently clarified that “in
assessing how much ‘lesser’ a showing might be required to
satisfy the change-in-circumstances requirement, courts should
examine the origin of the order in question and analyze the extent
to which the order—even if stipulated—reflects the result of
robustly contested litigation aimed at ascertaining the best
interest of the child.” Peeples v. Peeples, 2019 UT App 207, ¶ 17, 456
P.3d 1159 (citation omitted). Thus, in a situation where a custody
order is technically stipulated, the watered-down change-in-
circumstances requirement may not apply if circumstances are
such that “we have relatively high confidence that the custody
order was in line with the best interests of the children.” Id. ¶ 20
(determining that the district court did not err in applying the
normal change-of-circumstances requirement where there were
years of litigation between the parties during which they were
represented by counsel, and where they had fully litigated

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protective orders and other temporary orders as well as had a full
evaluation by a custody evaluator).

¶19 We determine that the case before us is such a case.
Although the custody determination that Reagan seeks to modify
is technically stipulated, the circumstances surrounding its
creation are such that we have confidence that it was in line with
the best interests of the children. The parties, represented by
counsel, participated in litigation prior to their eventual
agreement to the original divorce decree. They again litigated
custody issues a couple years later, ultimately arriving at an
agreement on the matter. Along the way, the parties have been
largely represented by counsel and have sought several orders to
show cause, filed for protective orders, and participated in
hearings and mediations. This is a far cry from a situation where
the parties came to a stipulation on their own and the court simply
adopted it without much exploration into the best interests of the
children. Thus, we see no error with the district court’s apparent
failure to consider applying a lesser change-of-circumstances
requirement.

¶20 Additionally, we are not convinced that a different
standard would have led to a different result in this case, where
the district court appeared to be entirely unpersuaded that the
alleged changes in circumstances—Amber having alcohol issues
that were “out of control” and mental health issues that had “risen
to a level of harm to the children”—existed in any meaningful
degree. The court stated that Reagan’s evidence was, at best,
“suggestive” and that he “clearly exaggerated circumstances” to
support his claims. It also recognized that several of the incidents
Reagan complained of were “capable of easy corroboration,” yet
none was given. The court appeared doubtful of Reagan’s
credibility, noting Amber’s uncontroverted testimony that
Reagan began to make his accusations only after “she refused to
carry on the sexual relationship” between the two of them.
Additionally, the court questioned how genuine Reagan’s

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concerns were considering that even after asserting similar claims
in the past, he still, just a few months before filing his petition,
“agreed to a 50/50 custody arrangement with [Amber].”

¶21 The district court also considered much of the evidence to
be in Amber’s favor. The court referenced the “extremely active
regimen” of negative breathalyzer tests and listed in some detail
the reasons for the “few” missed tests. The court considered it
important that the DCFS investigation did not support Reagan’s
allegations either:

[The] DCFS investigation did not find the children’s
environment to be unstable or that there were any
hygiene issues, nor did [it] find any mental health
issues on the mother’s part. Rather, and
coincidentally, DCFS found the children to be safe
with [Amber] and that her home presented a low
risk assessment and did not require any ongoing
services which was the same assessment it gave to
[Reagan].

Thus, the court did take into consideration the current
circumstances and relied heavily on the investigation by DCFS—
an entity whose overriding consideration was assuring that the
children were safe.

¶22 Reagan takes issue with the district court’s determinations
and argues that the court “failed to consider the full evidence
presented.” But in view of the detailed findings of the district
court, we cannot say that the court did not consider the complete
picture or otherwise abused its discretion in not finding a material
change in circumstances. And to the extent Reagan challenges any
of the court’s specific findings underlying that determination, he
has not pointed us to any evidence that would lead us to conclude
that those findings were clearly erroneous. Thus, we see no error
in the district court’s denial of Reagan’s petition to modify.

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II. Financial Issues

¶23 Reagan makes a cursory argument contesting several of the
district court’s findings and conclusions regarding financial
issues. “An appellant has the burden of persuasion on appeal and
must point out the perceived errors of the lower court and provide
an argument containing the contentions and reasons with respect
to the issues presented, with citations to the authorities, statutes,
and parts of the record relied on.” Roberts v. Roberts, 2014 UT App
211, ¶ 33, 335 P.3d 378 (quotation simplified); see also Utah R. App.
P. 24(a)(8) (“The argument must explain, with reasoned analysis
supported by citations to legal authority and the record, why the
party should prevail on appeal.”). Reagan has not borne this
burden.

¶24 First, Reagan challenges findings regarding
reimbursement for childcare and child therapy costs. He argues
that an order entered in March 2019 had already determined that
Amber owed these costs, subject to verification. But the “order”
he references is simply a minute entry containing the court
commissioner’s recommendations after an order to show cause
hearing. Further, during that order to show cause hearing, the
commissioner had specifically stated, “I don’t want to do the
order until the 30 days has run and everyone’s exchanged
information and you’ve worked out the numbers.” Thus, there
was no order entered in March 2019 addressing these costs. And
Reagan does not point us to a resulting order that was later
entered on these costs or to where in the record the required proof
of the costs was submitted. Nor does he engage with the
reasoning set forth by the district court in denying reimbursement
on these expenses—that is, that the therapy was not physician-
recommended, that Reagan needed to consult with Amber before
incurring the debt, and that each party was responsible for
childcare expenses for the weeks when they had the children—
and show why such reasoning was in error.

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¶25 Second, Reagan contests the district court’s finding
regarding a judgment against the parties in a different civil case.
The district court made no modification to address this judgment
because it determined it was “for personal loans taken out by
[Reagan] and for a broken lease which [Reagan] never made
[Amber] aware of.” Reagan simply argues that Amber was aware
of this debt; but he does not provide any explanation as to when
and how she became aware of the debt, nor any citation to record
evidence supporting such a claim.

¶26 Finally, Reagan challenges the district court’s refusal to
award him attorney fees below on certain motions and orders to
show cause. He argues simply that the court awarded him some
of the amounts requested in his motions and then “certified
attorney fees for trial.” But Reagan does not explain why partial
initial successes and certifying the fees for trial would make it
erroneous for the district court to later deny those fees after
further consideration at trial. Further, Reagan certainly makes no
effort to address the court’s reasoning for denying fees, including
that both parties were in violation of the divorce decree and so
neither party substantially prevailed on some motions, that
requests for fees had already been denied, that an objection to a
denial of attorney fees was not timely filed, that Amber had
substantially prevailed in defending one of the orders to show
cause, 5 and that a motion Reagan filed was entirely unnecessary.

¶27 In sum, Reagan does not engage with the reasoning of the
district court or point us to evidence in the record or controlling

5. Reagan also challenges the district court’s award of attorney
fees to Amber in defending against this order to show cause and
his petition to modify, arguing that “there is no finding of fact or
conclusions of law to support the award.” But the court clearly
weighed the success of each party and determined that Amber
substantially prevailed on both of those issues. Thus, Reagan also
fails in his challenge to these attorney fees awarded to Amber.

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law that would call the court’s findings or reasoning into
question. Reagan has not borne his burden on appeal, and we
therefore decline to disturb the district court’s decisions regarding
these financial determinations. 6

CONCLUSION

¶28 The district court did not err by applying the general rule
that a material and substantial change of circumstances is
required for a custody modification. And Reagan has not shown
that the court’s determination that the alleged changes were not
existent was an abuse of discretion, nor that the findings
underlying the determination were clearly erroneous. Reagan has
also failed to carry his burden of persuasion as to the challenged
financial determinations. We therefore affirm.

6. Reagan seeks an award of attorney fees as the prevailing party
on appeal. See generally Osguthorpe v. Osguthorpe, 872 P.2d 1057,
1059 (Utah Ct. App. 1994) (“Generally, when the trial court
awards fees in a domestic action to the party who then
substantially prevails on appeal, fees will also be awarded to that
party on appeal.” (quotation simplified)). But as Reagan does not
prevail on any of the issues he raises on appeal, including his
argument that he should have been awarded attorney fees below,
we necessarily deny this request.

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