Chaparro v. Torero

2018 UT App 181
THE UTAH COURT OF APPEALS
ELDA C HAPARRO,
Appellant,
v.
ENRIQUE TORERO,
Appellee.
Opinion
No. 20170494-CA
Filed September 20, 2018
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 134901419
Randall W. Richards, Attorney for Appellant
Deborah L. Bulkeley, Attorney for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. O RME and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 	Elda Chaparro (Mother) appeals the district court’s entry
of judgment by default as a sanction for her failure to pay a
custody 	evaluator. 	The 	judgment 	awarded 	Enrique 	Torero
(Father) 	sole 	physical 	custody 	of 	their 	minor 	child, 	A.T.,
modifying the custody arrangement from their divorce decree.
The district court did not take any evidence to support a finding
that a substantial change of circumstances had occurred or that a
transfer in custody was in the child’s best interest. Because the
district court did not make the required findings before entering
the judgment by default, it exceeded its discretion in modifying
the existing custody order. We reverse and remand.

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BACKGROUND
¶2 	Upon their divorce in September 2014, Mother and Father
were granted joint physical and legal custody of their child, A.T.
Eight months later, Mother filed a petition to modify the divorce
decree based on changed circumstances. Mother sought sole
physical custody of A.T. because Father had moved out of the
area, making joint physical custody impractical. Father filed an
answer denying Mother’s allegations and seeking dismissal for
failure to state a cause of action. Father also filed a motion
seeking a court determination of where the child should go to
school as well as a custody evaluation.
¶3 	At a hearing on the motions, the parties stipulated that
A.T. would attend the school Father selected and agreed to a
custody evaluation regarding Mother’s petition to modify. The
court 	then 	ordered 	a 	custody 	evaluation, 	splitting 	the 	cost
equally between the parties.
¶4 	Pursuant to rule 4-903 of the Utah Rules of Judicial
Administration, 	the 	domestic 	relations 	commissioner 	held 	a
settlement 	conference 	in 	which 	the 	custody 	evaluator
participated. When the parties were unable to reach a resolution,
the commissioner certified the case for trial. The commissioner’s
pre-trial order provided that either party could request a written
report from the evaluator and that “both parties shall share the
costs of the written report equally, one-half (1/2) to each.”
¶5 	Father requested a written custody evaluation, and the
evaluator informed the parties that the cost of such a report was
$3,500, which needed to be paid in full before the report could be
prepared. Father promptly paid the evaluator for his half.
¶6 	Roughly two months before trial, the evaluator notified
the court that she had not received payment from Mother and,
consequently, would be unable to submit the report before trial.

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Father subsequently filed a motion to continue the trial as well
as a motion for sanctions and attorney fees.
¶7 	In 	the 	motion 	for 	sanctions, 	Father 	alleged 	that 	the
custody evaluator had recommended, during the settlement
conference, that Father “should have physical and legal custody
to the parties’ minor child and that [Mother’s] parent time
should 	be 	substantially 	reduced.” 	Father 	also 	alleged 	that
Mother had “no intention of complying with the court’s order
and paying” the evaluator because the evaluation was adverse to
her. As a sanction for Mother’s failure to pay, Father sought an
order awarding him “the sole physical and legal custody of the
parties’ minor child,” attorney fees, and other appropriate relief.
¶8 	The district court held a telephone conference with the
parties’ attorneys. Father’s attorney asserted that Mother was
“flat-out refusing to pay” for the custody evaluation because “it
was readily apparent [from the rule 4-903 hearing] that the
report was very negative towards [Mother].” Mother’s attorney
conceded, 	“[Father’s 	counsel] 	is 	correct, 	[the 	evaluator’s]
discussion at the 4-903 hearing was not favorable to [Mother].”
Her attorney explained that Mother did not intend to call the
evaluator as a witness at trial and believed that the evaluator’s
testimony was unnecessary given that Father had not filed a
counterpetition seeking sole custody of A.T.
¶9 	The 	district 	court 	suggested that, 	if 	Father 	was now
asking for sole custody, Father should amend his pleadings to
include that relief. Father’s attorney agreed and indicated that he
would 	immediately 	file 	an 	amended 	answer 	and
counterpetition.
¶10 	The district court granted the motion to continue but
deferred its ruling on sanctions. The court again ordered that
“both sides pay one-half the cost” of the written report. The
court warned that it might impose sanctions if Mother persisted
in her refusal to pay:

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I think I can grant as a sanction custody to the
father if she doesn’t pay, and that’s kind of why I
want 	her 	to 	pay 	one 	half, 	is 	because 	if 	she
continues to take this position, I’m not going to
pay, then to me, a logical sanction is to say fine, the
Court’s going to award custody to the father, but I
don’t think I can do that until the pleadings are
amended.
¶11 	The district court issued an order requiring Mother to
immediately pay the evaluator and allowing Father to amend his
pleadings. Father filed an amended answer and counterpetition
to modify the divorce decree by granting him sole physical and
legal custody.
¶12 	The following month, the district court held a telephone
conference with Father’s attorney and Mother, appearing pro se.1
Father’s 	attorney 	explained 	that 	Mother 	did 	not 	pay 	the
evaluator as ordered and had instead offered to pay $50 per
month until the debt was satisfied. Based on her failure to
comply with the court’s order, Father asked the court to strike
Mother’s pleadings and enter a default judgment granting sole
custody to Father.
1. Mother claimed that she had fired her former attorney because
he misrepresented to the court that she was willfully refusing to
pay. Mother explained:
It’s the 	other 	attorney 	communicating 	[to] 	you
otherwise, that I was not going to pay, and it’s not
my 	fault 	that 	I 	got 	incompetent 	counsel
communicating 	[to] 	you 	other 	than 	what 	I
communicated [to] him. That’s why I’m here, Your
Honor, communicating to you what my intent is.
I’m not refusing to pay [the evaluator]. I will pay
[the evaluator]. I am trying to get the money . . .
[s]o I can pay [the evaluator] all the amount.

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¶13 	Mother objected, insisting she was willing but unable to
pay. Mother confirmed that she was able to “pay $50, . . . until
[she was] able to come up with the whole amount.” The court
explained to Mother that “it just doesn’t work that way” because
she 	had 	already 	been 	ordered 	to 	pay 	one-half 	of 	the 	fee
immediately.
¶14 	Mother again objected, saying, “Your Honor, I don’t have
money. I don’t have money. I don’t have money right now. I will
pay her immediately. I am trying to come up with the funds.”
The 	court 	explained 	that 	taking 	a 	year 	or 	two 	to 	pay 	in
installments was unacceptable because the case needed to move
forward to trial. Mother objected again, saying, “I just got done
telling you that I don’t have all the funds right now.” Mother
insisted that she had told her former attorney that she would
pay the evaluator “when she renders services,” and that her
former attorney had misrepresented her position to the court.
The court asked again, “So you don’t intend to pay your half of
the fee to [the evaluator]?” At that point, Mother suggested that
it might be easier for her to communicate in Spanish and offered
to respond to the court in writing, but she reiterated, “I’m saying
I will pay her as soon as I come up with the full amount. I’m not
refusing to pay.” Mother stated that she was trying to “get
money from [her] kids, or a loan for [her] house” and would try
to come up with the full amount within four to six weeks.
¶15 	The court asked Father’s attorney how long the case had
been pending, but Mother continued speaking. Father’s counsel
stated that “she always interrupts” and “we’ve had problems
with 	her 	complying 	with 	the 	court 	orders,” 	which 	counsel
asserted had resulted in delay. Mother continued to object, but
the court stated, “All right, [Father’s attorney], I’ll grant your
motion. 	We’ll 	just 	strike 	her 	answer 	and 	enter 	a 	default
judgment.”
¶16 	Following the telephone conference, the district court
signed a written order, prepared by Father, stating that because

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Mother had “failed to comply with the Court’s prior Orders, her
Petition for Modification is hereby stricken and judgment shall
be entered pursuant to the [Father’s] Counter Petition to Modify
Decree of Divorce.”2 The court later entered an order modifying
the divorce decree to award Father “sole legal and physical
custody of the parties’ minor child.” The order also provided
that “[Father] is to be awarded his costs and attorney fees against
[Mother].”
¶17 	Contemporaneously, the court entered “Findings of Fact
and Conclusions of Law,” drafted by Father’s attorney, in which
the court purported to make factual findings that (1) there was a
“substantial and material change[] warranting the modification
of the custody” and (2) the change was in the child’s “best
interests.” 	These 	findings 	repeated 	Father’s 	alleged 	facts
verbatim.
¶18 	Mother appealed after the modified divorce decree was
entered but before the court’s final order setting the amount of
attorney fees.
ISSUES AND STANDARDS OF REVIEW
¶19 	While 	Mother 	states 	several 	issues 	on 	appeal, 	the
substance of her arguments relates to three discrete rulings by
the 	district 	court. 	First, 	she 	challenges 	the 	district 	court’s
decision 	to 	allow 	Father 	to 	amend 	his 	answer 	and 	file 	a
counterpetition for sole physical and legal custody. “We review
a 	district 	court’s 	decision 	to 	grant 	an 	amendment 	of 	the
2. 	The 	sanction 	sought 	by 	Father 	was 	to 	strike 	Mother’s
pleadings. Although the court had verbally ordered Mother’s
answer 	stricken, 	Mother 	had 	not 	answered 	Father’s
counterpetition, and thus there was no answer to strike. Instead,
the court struck Mother’s petition to modify.

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pleadings for abuse of discretion resulting in prejudice.” Swan
Creek Vill. Homeowners v. Warne, 2006 UT 22, ¶ 18, 134 P.3d 1122.
¶20 	Second, Mother challenges the district court’s award of
sole physical and legal custody to Father as a sanction for her
failure to pay her share of the custody evaluator’s fee. Generally,
“we overturn a sanction only in cases evidencing a clear abuse of
discretion.” Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82,
¶ 23, 199 P.3d 957 (reviewing discovery sanctions). “An abuse of
discretion may be demonstrated by showing that the district
court relied on an erroneous conclusion of law or that there was
no evidentiary basis for the trial court’s ruling.” Id. (quotation
simplified).
¶21 	Third, Mother challenges the award of attorney fees to
Father. “The [district] court’s decision regarding whether to
award attorney fees will be overturned only if the [district] court
exceeded the bounds of its discretion.” Neff v. Neff, 2011 UT 6,
¶ 48, 247 P.3d 380. “But the related question of whether the
[district] court’s findings of fact in support of an award of fees
are 	sufficient 	is 	a 	question 	of 	law 	that 	we 	review 	for
correctness.” Id. (quotation simplified).
ANALYSIS
I. Subject Matter Jurisdiction
¶22 	Before turning to the issues raised by the parties, we
address 	whether 	we 	have 	jurisdiction 	over 	this 	appeal. 	In
his 	brief, 	Father 	argues 	that 	we 	lack 	jurisdiction 	over 	the
attorney fees issue, but he does not challenge our jurisdiction
over the appeal generally. Nonetheless, “because subject matter
jurisdiction goes to the court’s authority to hear a case, courts
have an independent obligation to raise and decide jurisdictional
questions that the parties either overlook or elect not to press.”

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In re adoption of Baby E.Z., 2011 UT 38, ¶ 36, 266 P.3d 702
(quotation simplified).
¶23 	On May 22, 2017, the district court entered a modified
divorce decree supported by separately entered findings of fact
and conclusions of law. At that time, the court ruled that Father
was entitled to an award of his costs and attorney fees. Mother
filed her notice of appeal on June 19, 2017, seeking review of the
court’s “final order” dated May 22, 2017. When the notice of
appeal was filed, the court had not yet entered an order setting
the amount of attorney fees. The district court docket reflects
that the order awarding attorney fees was entered on September
15, 2017. An amended judgment reflecting the amount of the
attorney fees award was not entered until November 24, 2017.3
Mother never filed an amended notice of appeal.
¶24 	Until 	recently, 	any 	“appeal 	filed 	before 	a 	claim 	for
attorney fees had been resolved was premature and would be
dismissed.” Utah R. Civ. P. 58A advisory committee notes on
2016 amendments. But in 2016, rule 4(b) of the Utah Rules of
Appellate Procedure was amended “to change the effect of a
motion for attorney fees on the appealability of a judgment.” Id.
The rule now provides:
A notice of appeal filed after announcement or
entry of judgment, but before entry of an order
disposing of [a motion or claim for attorney fees
under 	Rule 	73 	of 	the 	Utah 	Rules 	of 	Civil
Procedure], shall be treated as filed after entry of
the order and on the day thereof, except that such a
notice of appeal is effective to appeal only from the
underlying judgment.
3. Neither the order setting the award of attorney fees or the
amended judgment is part of the record on appeal.

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Utah R. App. P. 4(b)(2). In other words, “[i]f a notice of appeal is
filed before the order resolving the timely motion, the appeal is
not 	dismissed; 	it 	is 	treated 	as 	filed 	on 	the 	day 	the
order 	ultimately 	is 	entered.” 	Utah 	R. 	Civ. 	P. 	58A
advisory committee notes on 2016 amendments.
¶25 	In applying the new rule 4(b), Father argues that once the
court 	entered 	the 	order 	setting 	the 	amount 	of 	attorney
fees, Mother’s notice of appeal became effective, but only as to
the May 22, 2017 order modifying the divorce decree. But, in a
recent opinion, this court held that the new rule applies only
if the pending motion for attorney fees is filed post-judgment.
See McQuarrie v. McQuarrie, 2017 UT App 209, ¶ 4, 407 P.3d 1096
(per curiam). “[B]ecause rule 4(b)(1)(F) applies only to post-
judgment 	motions 	for 	attorney 	fees 	and 	no 	such 	motion
was filed,” this court held that “traditional case law concerning
the finality of judgment for purposes of appeal still applies.” Id.
(emphasis added). Under that traditional case law, “a [district]
court must determine the amount of attorney fees awardable to a
party before the judgment becomes final for the purposes of
an appeal” as of right. ProMax Dev. Corp. v. Raile, 2000 UT 4,
¶ 15, 	998 	P.2d 	254. 	If 	the 	notice 	of 	appeal 	is 	prematurely
filed before entry of a final, appealable order, the appellate
court lacks jurisdiction to hear the appeal. Id. ¶ 16.
¶26 	In 	concluding 	that 	the 	new 	rule 	applies 	only 	to
post-judgment 	motions 	for 	attorney 	fees, 	our 	opinion
in McQuarrie relies on 4(b)(1)(F)’s specific reference to “a motion
or claim for attorney fees under rule 73 of the Utah Rules of Civil
Procedure.” 	2017 	UT 	App 	209, 	¶ 	4 	(quotation 	simplified).
Looking to the language of rule 73, we noted that a motion
pursuant to the rule must “specify the judgment.” Id. (quotation
simplified). Because the application of rule 4(b)(1)(F) is limited
to motions under rule 73, which in turn seems to presume that a
judgment will exist when such a motion is filed, we concluded

Chaparro v. Torero
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that rule 4(b)(1)(F) applied only to post-judgment motions for
attorney fees.4
¶27 	Thus, under McQuarrie, we lack jurisdiction, not just over
the attorney fees award as Father contends, but over the entire
appeal. In McQuarrie, we held that we lacked jurisdiction where
the husband filed his notice of appeal from an order dismissing
his motion to modify a divorce decree and awarding attorney
fees in an amount to be determined at a later date. Similarly,
here, 	Mother 	filed 	her 	notice 	of 	appeal 	from 	entry 	of 	the
modified divorce decree, which, among other things, awarded
Father attorney fees in an amount to be determined. Because the
modified 	divorce 	decree, 	like 	the 	order 	in 	McQuarrie,
contemplated additional action by the court, it was not final for
4. McQuarrie’s holding that ProMax still applies to pre-judgment
motions for attorney fees appears to be in tension with the
advisory 	committee’s 	notes 	on 	the 	2016 	amendments. 	The
committee notes state that the amendments were part of a
coordinated effort to “effectively overturn ProMax” to “protect
the appellate rights of parties and avoid the cost of premature
appeals.” Utah R. Civ. P. 58A advisory committee notes on 2016
amendments. However, advisory committee notes “are not law”
and “cannot override the terms of the rules themselves.” In re
Larsen, 2016 UT 26, ¶ 31, 379 P.3d 1209 (addressing advisory
committee notes to the Utah Rules of Professional Conduct); see
also RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 22, 392 P.3d 956
(noting that the advisory committee notes to the Utah Rules of
Civil Procedure “offer persuasive, but not binding, interpretative
guidance for the rule”). If rule 4(b)(1)(F) was intended to apply
whenever the only issue left to be decided is the calculation of
attorney fees, limiting the rule’s application to a “motion or
claim for attorney fees under rule 73 of the Utah Rules of Civil
Procedure” was overly restrictive. See McQuarrie v. McQuarrie,
2017 UT App 209, ¶ 4, 407 P.3d 1096 (per curiam).

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purposes of appeal. And because the unresolved attorney fees
issue did not result from a post-judgment motion under rule 73,
McQuarrie 	holds 	that 	rule 	4(b)(1)(F) 	does 	not 	apply.
Consequently, we lack appellate jurisdiction to hear this case as
an appeal as of right.
¶28 	Ordinarily, this conclusion would necessitate dismissal of
the appeal. See Loffredo v. Holt, 2001 UT 97, ¶ 11, 37 P.3d 1070
(“Where the final judgment rule is not satisfied, the proper
remedy for this court is dismissal.”). “‘In extraordinary cases,’”
however, “‘we may choose to treat a purported [appellate rule 3
appeal of right as an interlocutory appeal under [appellate rule
5].’” A.J. Mackay Co. v. Oakland Constr. Co., 817 P.2d 323, 325
(Utah 1991) (quoting Williams v. State, 716 P.2d 806, 808 (Utah
1986)). We recognize that “the course suggested in Williams is to
be taken very sparingly.” Id. Such exceptional treatment cannot
be justified merely because the jurisdictional defect escaped
earlier detection and the appeal has progressed to a stage where
dismissal would constitute a significant waste of party and
judicial resources. If those circumstances were sufficient, it might
“encourage counsel to attempt to appeal from unappealable
orders and to conceal the nature of the orders from the court.” Id.
We 	are 	also 	mindful 	that 	“every 	case 	that 	we 	permit 	to
improperly occupy a space” on our docket reduces the amount
of resources we can devote to appeals properly taken as of right.
Id. Finally, we understand that “we bear a heavy burden of
justification when we single out one improperly taken appeal for
preferential treatment that has been denied so many others.” Id.
“[F]or 	such 	circumstances 	to 	exist, 	a 	minimum 	threshold
requirement would be that the order appealed from be one we
would have initially deemed worthy of appeal under rule 5.” Id.
at 326. Additionally, “we should also consider how we have
treated 	other 	unappealable 	orders 	that 	have 	evaded 	early
detection by this court” and be able to “explain persuasively
why any one case deserves treatment denied to others.” Id. at
325–26.

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¶29 	We believe that this is such an extraordinary case. The
primary issue on appeal is whether the district court abused its
discretion 	when 	it 	modified 	custody 	as 	a 	sanction 	against
Mother without considering the best interests of the child. As
explained in Part IV, this court has previously held that a district
court cannot impose such a sanction. Any change in custody
must be accompanied by adequately supported findings that the
change is in the best interests of the child. See infra ¶ 38. Given
that the sanctions imposed by the district court over Mother’s
objection were in contravention of controlling authority, we
would 	have 	initially 	deemed 	this 	issue 	worthy 	of 	an
interlocutory appeal under rule 5. This is especially true where,
at the time Mother filed her notice of appeal, Father had yet to
submit 	an 	affidavit 	of 	attorney 	fees 	and 	costs 	and 	a 	final
judgment on the matter was still some months off. Considering
the time-sensitive nature of a child’s custody and the uncertainty
regarding when the attorney fees issue would be resolved, this
case would have been suitable for interlocutory review to correct
the patent error below.
¶30 	The nature of this case also justifies special treatment.
Unlike the order dismissing petitions to modify a divorce decree
in McQuarrie, this case involves a custody order affecting a
minor child. As we explain in Part IV, the child’s best interests
are of paramount importance in making custody determinations.
See infra ¶ 39. A modification in custody to punish a recalcitrant
parent-litigant without considering the best interests of the child
would work a manifest injustice.
¶31 	If the only interest at stake in this appeal was that of
Mother, we would not be inclined to rescue her from her own
oversight, even in light of her pro se status at the time this
appeal was filed and the potential confusion caused by the 2016
amendments to the court rules. However, this appeal involves
the best interests of a minor child, and those interests have not
been properly considered despite well-established law requiring
such findings as a prerequisite to a change in custody. Because

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we conclude that this is an extraordinary case, we choose to treat
it as an interlocutory appeal under rule 5 for which we have
jurisdiction.
II. Inadequate Briefing
¶32 	Father argues that Mother has inadequately briefed each
issue on appeal. Although Mother filed her opening brief pro se,
parties who represent themselves are “held to the same standard
of knowledge and practice as any qualified member of the bar.”
Allen 	v. 	Friel, 	2008 	UT 	56, 	¶ 	11, 	194 	P.3d 	903 	(quotation
simplified). 	We 	require 	a 	party 	to 	“explain, 	with 	reasoned
analysis supported by citations to legal authority and the record,
why the party should prevail on appeal.” Utah R. App. P.
24(a)(8).
¶33 	While Mother’s brief is not in strict compliance with
rule 24, 	appellate 	courts 	are 	“generally 	lenient 	with 	pro 	se
litigants,” extending “every consideration that may reasonably
be indulged.” Bell v. Bell, 2013 UT App 248, ¶¶ 24, 27, 312 P.3d
951 (quotation simplified). This court may, in the interests of
justice, overlook inadequacies in the briefing and reach the
merits. See State v. Gamblin, 2000 UT 44, ¶ 8, 1 P.3d 1108 (holding
that 	an 	appellate 	court 	may 	“choose 	to 	further 	address
defendant’s 	arguments 	in 	the 	interests 	of 	justice”); 	Golden
Meadows Props., LC v. Strand, 2011 UT App 76, ¶ 1 n.1, 249 P.3d
596 (“Despite these inadequacies, we exercise our discretion to
decide this matter on the merits.”).
¶34 	Moreover, the Utah Supreme Court has recently clarified
that inadequate briefing is not “an absolute bar to review of an
argument on appeal.” Bank of Am. v. Adamson, 2017 UT 2, ¶ 11,
391 P.3d 196. “An appellant who fails to adequately brief an
issue will almost certainly fail to carry its burden of persuasion
on appeal,” but the court’s analysis focuses on whether the
appellant has established error, “not on whether there is a
technical deficiency in briefing meriting a default.” Id. ¶ 12

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(quotation simplified). With that standard in mind, we turn to
the merits of each issue on appeal.
III. Allowing Amendment of Pleadings
¶35 	Mother has failed to carry her burden of persuasion in
arguing that the district court abused its discretion in permitting
Father to amend his pleadings. Under rule 15 of the Utah Rules
of Civil Procedure, district courts “should freely give permission
[for a party to amend its pleadings] when justice requires.” Utah
R. 	Civ. 	P. 	15(a)(2). 	“[District] 	courts 	should 	liberally 	allow
amendments 	unless 	the 	amendments 	include 	untimely,
unjustified, 	and 	prejudicial 	factors.” 	Daniels 	v. 	Gamma 	West
Brachytherapy, LLC, 2009 UT 66, ¶ 58, 221 P.3d 256.
¶36 	In her issue statements, Mother faults the district court for
granting Father leave to amend “at such a late stage of the case”
and “in a way that prejudiced and undermined the reasonable
assessments, strategies, and preparations for the case by the
attorney for the Mother.” Aside from these conclusory assertions
in the issue statements, however, Mother’s brief does not further
address this argument. She does not explain how the amended
answer 	and 	counterpetition 	were 	untimely, 	unjustified, 	or
prejudicial in light of the continuance of trial, nor does she
address any other factors that might weigh against allowing the
amendment. With respect to this issue, Mother has failed to
carry her burden of persuasion on appeal.
IV. Awarding Custody as a Sanction
¶37 	Mother contends the district court abused its discretion by
“changing custody of the [child] to the Father, apparently based
entirely on the fact that the Mother had not complied with the
order to pay some remaining portion of her share of the custody
evaluation” and “without taking evidence on the best interests of
the child.” Mother cites Hogge v. Hogge, 649 P.2d 51 (Utah 1982),
which requires a two-step process to modify a custody award.

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Id. at 53. Although Mother does not provide an in-depth legal
analysis, her argument is “sufficient to show an error and why,
under applicable authorities, that error must be redressed.”
Blocker v. Blocker, 2017 UT App 10, ¶ 10, 391 P.3d 1051; see also
State v. Lucero, 2002 UT App 135, ¶ 13, 47 P.3d 107 (“To permit
meaningful 	appellate 	review, 	briefs 	must 	comply 	with 	the
briefing requirements sufficiently to enable us to understand
what particular errors were allegedly made, where in the record
those 	errors 	can 	be 	found, 	and 	why, 	under 	applicable
authorities, those errors are material ones necessitating reversal
or other relief.” (quotation simplified)).
¶38 	Utah law requires courts to make the following two
findings of fact before modifying a child custody order: (1) there
has been a material change in the circumstances upon which the
earlier order was based, and (2) a change in custody is in the best
interests 	of 	the 	child. 	See 	Utah 	Code 	Ann. 	§ 	30-3-10.4(2)
(LexisNexis 	Supp. 	2017). 	This 	two-step 	approach 	was 	first
established by the Utah Supreme Court in Hogge and later
codified. 629 P.2d at 54.
¶39 	Strong public policy reasons support the adoption of the
Hogge test. Stable custody arrangements are critical to a child’s
proper 	development. 	The 	presumption 	is 	that 	“custody
placements, once made, should be as stable as possible unless
the factual basis for them has completely changed.” Becker v.
Becker, 694 P.2d 608, 610 (Utah 1984). The two-step procedure
“allows courts to monitor the best interests of children and
especially to provide stability to children by protecting them
from ‘ping-pong’ custody awards.” Wright v. Wright, 941 P.2d
646, 651 (Utah Ct. App. 1997).
¶40 	“The important public policy to have courts ensure that a
child’s best interests will be met before transferring custody of
the child applies in all cases involving a change in a child’s
custody.” Taylor v. Elison, 2011 UT App 272, ¶ 22, 263 P.3d 448
(quotation simplified). A district court cannot avoid making

Chaparro v. Torero
20170494-CA 	16 	2018 UT App 181
these findings by modifying custody arrangements as a sanction.
See Wright, 941 P.2d at 652; see also Blanco v. Blanco, 311 P.3d 1170,
1175 (Nev. 2013) (“[A] court may not use a change of custody as
a sword to punish parental misconduct, such as refusal to obey
lawful 	court 	orders, 	because 	the 	child’s 	best 	interest 	is
paramount in such custody decisions.”); Fenton v. Webb, 705
N.W.2d 323, 327 (Iowa Ct. App. 2005) (holding that the district
court abused its discretion in determining custody by entering a
default judgment without “evidence to support the custody
change”).
¶41 	In Wright, this court reversed a judgment by default that
transferred custody of the parties’ child without making the
required findings. 941 P.2d at 652. The district court found that
the mother was at fault for failing to respond to the father’s
discovery 	requests 	and 	that 	sanctions 	were 	justified 	under
rule 37 of the Utah Rules of Civil Procedure. Id. at 647. The court
struck the mother’s answer and counterpetition for custody,
entered the mother’s default on the father’s petition for custody,
and entered a judgment transferring custody of the child from
mother to father. Id. at 647.
¶42 	On appeal, this court held that the court acted within its
discretion in ordering rule 37 discovery sanctions against the
mother 	and 	“striking 	the 	[m]other’s 	answers 	and 	counter-
petition 	and 	entering 	default,” 	id. 	at 	650, 	but 	“abused 	its
discretion by modifying the child custody order because it failed
to first take evidence and make the necessary findings,” id. at
652. 	This 	court 	held 	that 	the 	important 	public 	policy
considerations underlying the Hogge test “apply just as much to
cases involving judgments by default as to cases involving a
litigated 	dispute 	decided 	upon 	the 	merits.” 	Id. 	at 	651–52.
Accordingly, “before a [district] court may enter a judgment by
default that transfers custody of a child, the trial court must take
evidence and then make findings that a substantial change of
circumstances has occurred and that transferring custody of the
child is in the child’s best interests.” Id.

Chaparro v. Torero
20170494-CA 	17 	2018 UT App 181
¶43 	In this case, the court entered judgment by default and
modified custody based solely on Mother’s failure to pay her
share 	of 	the 	custody 	evaluator’s 	fee. 	Although 	the 	written
findings of fact and conclusions of law, drafted by Father’s
attorney, 	purported 	to 	reflect 	factual 	findings 	regarding 	a
substantial change of circumstances and the best interests of the
child, the court did not hear any evidence on which those
findings 	could 	be 	based. 	Father 	contends the 	district 	court
considered the custody evaluator’s recommendation, but the
evaluator had not submitted a report or testified before the
district court. The parties’ agree that the evaluation was “not
favorable” to Mother, but this fact did not provide a sufficient
basis on which to assess the child’s best interests. By modifying
the custody arrangement without taking evidence and making
its 	own 	assessment 	regarding 	the 	circumstances 	and 	best
interests of the child, the court exceeded its discretion.
¶44 	The remaining question is whether the court acted within
its discretion in striking Mother’s petition. Our review of this
issue is impeded by the district court’s failure to specify the
authority it was invoking to impose sanctions. Without knowing
the applicable context, we cannot determine what findings, if
any, the court was required to make to support the imposition of
sanctions. For instance, “before a district court may impose
discovery sanctions under rule 37, the court must find on the
part of the noncomplying party willfulness, bad faith, or fault.”
Clifford P.D. Redekop Family LLC v. Utah County Real Estate LLC,
2016 UT App 121, ¶ 14, 378 P.3d 109 (quotation simplified).
Similarly, 	while 	a 	court 	has 	inherent 	authority 	to 	impose
contempt sanctions, “a finding of contempt is proper only when
the person cited for contempt knew what was required, had the
ability to comply, and intentionally failed or refused to do so.”
LD III LLC v. Davis, 2016 UT App 206, ¶ 13, 385 P.3d 689
(quotation simplified).
¶45 	Here, a finding, based on evidence, that Mother was able
to pay the evaluator but nonetheless refused to comply with the

Chaparro v. Torero
20170494-CA 	18 	2018 UT App 181
court’s 	order 	may 	well 	have 	supported 	the 	imposition 	of
sanctions, 	but 	the 	district 	court 	made 	no 	such
finding. Consequently, we vacate the imposition of sanctions in
its 	entirety 	but 	without 	prejudice 	to 	the 	district 	court’s
prerogative 	to 	impose 	appropriate 	sanctions 	on 	a 	sound,
articulated basis, short of modifying custody without conducting
the Hogge test.
V. Attorney Fees
¶46 	Finally, Mother argues that the court failed to consider the
required 	factors 	when 	awarding 	Father 	his 	attorney 	fees.
Father argues that this court lacks jurisdiction to consider this
issue because Mother filed her notice of appeal before entry of
the order setting the amount of attorney fees. Mother does not
contest the reasonableness of the amount of the award but only
the 	initial 	ruling 	that 	Father 	was 	entitled 	to 	attorney 	fees.
Because 	we 	have 	elected 	to 	treat 	this 	as 	an 	interlocutory
appeal from the modified divorce decree, we have jurisdiction
to 	review 	the 	rulings 	made 	in 	that 	order, 	including 	the
conclusion that Father was “to be awarded his costs and attorney
fees.”
¶47 	Generally, “attorney fees are awardable only if authorized
by statute or by contract.” Dahl v. Dahl, 2015 UT 79, ¶ 168
(quotation 	simplified). 	In 	divorce 	cases, 	Utah 	Code 	section
30-3-3(1) permits a court to award attorney fees and costs “to
enable the [receiving] party to prosecute or defend the action.”
Utah Code Ann. § 30-3-3(1) (LexisNexis 2013). To justify such an
award, the court must make specific findings regarding “the
receiving spouse’s financial need, the payor spouse’s ability to
pay, and the reasonableness of the requested fees.” Dahl, 2015
UT 79, ¶ 168 (quotation simplified); see also Utah R. Civ. P. 102(b)
(listing findings required to grant costs and fees under Utah
Code section 30-3-3(1)). “Failure to consider these factors is
grounds for reversal on the fee issue.” Taft v. Taft, 2016 UT App
135, ¶ 87, 379 P.3d 890 (quotation simplified).

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20170494-CA 	19 	2018 UT App 181
¶48 	On the other hand, where attorney fees are awarded as a
sanction, 	“section 	30-3-3 	and 	its 	requirements 	are 	not
implicated.” Liston v. Liston, 2011 UT App 433, ¶ 26, 269 P.3d 169.
A district court may “award attorney fees or other costs in a
situation where one party has been uncooperative and failed to
comply with discovery requests and court orders.” Goggin v.
Goggin, 2013 UT 16, ¶ 32, 299 P.3d 1079. Such awards are
designed to compensate the receiving party for the expense
incurred as a result of the sanctioned party’s misconduct. Id.
¶ 36. A district court’s “authority to impose an award of fees as a
sanction 	against 	a 	party 	who 	has 	been 	obstructive 	or
contemptuous is derived from several statutes and common law
doctrines,” including the contempt statute, court rules, and the
court’s 	equitable 	and 	inherent 	powers. 	Id. 	The 	source 	of
authority determines what factual findings, if any, the court is
required to make before imposing sanctions.
¶49 	Here, the court did not identify the legal basis for the
award of attorney fees. If the court intended to award fees under
section 30-3-3(1), it did not make the required findings regarding
Father’s financial need or Mother’s ability to pay. If the court
intended to award attorney fees as a sanction, it did not identify
the authority on which the sanctions were based or the conduct
that would merit such sanctions. Given the lack of findings to
support an attorney fee award on either ground, we vacate the
award 	without 	prejudice 	to 	the 	district 	court 	entertaining
renewed motions for attorney fees on remand.
CONCLUSION
¶50 	We reverse the imposition of sanctions and vacate the
order modifying the decree of divorce. We remand for further
proceedings consistent with this opinion.