Nebeker v. Orton

2019 UT App 23

THE UTAH COURT OF APPEALS

SHANE NEBEKER,
Appellant,
v.
TRISHA ANN ORTON,
Appellee.

Opinion
No. 20170438-CA
Filed February 14, 2019

Sixth District Court, Richfield Department
The Honorable Marvin D. Bagley
No. 154600140

Jared L. Peterson, Attorney for Appellant
Benjamin Kearns, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1 Shane Nebeker (Father) and Trisha Ann Orton’s (Mother)
extramarital relationship resulted in the birth of a son (Child).
For the first eighteen months of Child’s life, Father saw him only
a few times. Then, concerned about Mother’s illegal activities,
Father took Child away from Mother without her consent.
Sometime thereafter, Father and Mother worked out an
extrajudicial, temporary custody arrangement that they
perpetuated until a custody trial. After a bench trial, Mother was
awarded primary physical custody of Child, and Father was
awarded statutory minimum parent-time. Father appeals. We
affirm in part—affirming the district court’s decision regarding
primary custody—and reverse in part—reversing the district
court’s decision related to Father’s parent-time.
Nebeker v. Orton

BACKGROUND 1

¶2 Father and Mother are parents of Child, born in December
2013. Mother and Father ended their relationship before Child
was born, and they lived about 100 miles apart. During the first
eighteen months of Child’s life, Father saw Child on two
occasions shortly after his birth. Mother stated that Father “was
more than welcome to come down any time he wanted to” visit
Child, but Father repeatedly told Mother, “I refuse to have
anything to do with you to see my child.” Mother did not allow
Father to remove Child from her supervision because (1) Child
was nursing and (2) Mother felt Child needed “to get to know”
Father before he took him for a visit. Father admitted Mother
told him he could visit Child at her residence, but Father said it
would have been “uncomfortable” because there were “still
feelings.” 2

¶3 Father did not provide financial support to Child or
Mother during the first eighteen months of Child’s life. The
Office of Recovery Services opened a case, and the matter came
before the district court in early May 2015, where Father’s
support obligation was determined.

¶4 In late May 2015, Mother allowed Father to visit Child.
Mother’s daughter (Daughter) picked up Child and took him to

1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the [district] court’s findings, and therefore
recite the facts consistent with that standard.” Lake Philgas Service
v. Valley Bank & Trust Co., 845 P.2d 951, 953 n.1 (Utah Ct. App.
1993).

2. Shortly after Child was born, Father reunited with his ex-wife.
They had married for the first time in 2006, separated, divorced,
and then remarried in June 2016.

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meet Father at a nearby restaurant. Daughter allowed Father to
take Child for a few minutes to buy a toy. But Father then sent
Daughter a text message informing her that he was not returning
Child. Father characterized this action as “rescuing” Child from
the dangerous situation created by Mother’s drug use. Father
took Child to his house. Mother stated that the day Father took
Child was the “darkest day of [her] life” and admitted that she
“wasn’t probably in the best place in [her] life.” For the first
week after Father took Child, Father allowed Mother to call and
read Child a bedtime story, but after that week Father refused to
answer the phone, and Mother “was not allowed to see [Child]
for six months.” Mother did not report Father’s taking of Child
to the police or any other authority.

¶5 Mother realized that she was “never going to get [her]
baby back” unless she “got clean.” She testified that she “found a
new way of life” in a treatment center and “never touched
[drugs] again.”

¶6 In October 2015, Father filed a parentage petition in which
he sought sole custody of Child and child support from Mother.
Around January 2016, Mother and Father “agreed” to an
ongoing extrajudicial temporary custody arrangement under
which Child stayed ten out of every twenty-eight days with
Mother and the balance of the days with Father. 3 Mother said
that she felt “bullied” into accepting the temporary arrangement.
Father stated that Child did well under the arrangement.

¶7 Ultimately, a two-day bench trial was held in October and
November 2016. The district court made the following findings

3. The temporary arrangement began about ten months prior to
the November 2016 trial. A temporary order allowing Mother
parent-time was in place from late December 2015 through early
January 2016.

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of fact: (1) Mother and Father began a relationship when they
were teenagers; (2) each had been married or in relationships
with other persons; (3) each had other children from prior
marriages or relationships; (4) each had a history of using illegal
drugs and violating the law; (5) Father was married and Mother
was single at the time of trial; (6) Child had his own bed and
bedroom in Father’s house; (7) Child had his own bed in
Mother’s room at Mother’s house; (8) Father and Mother resided
approximately 105 miles apart and had no plans to move closer
to each other; (9) Mother had a good support system where she
lived and believed she could avoid adverse influences she might
encounter elsewhere; (10) Mother and Father each had family
members to provide support and a positive influence on Child;
(11) Father’s employment required him to be away from home
for fourteen hours per day during scheduled work periods;
(12) Mother worked six-and-one-half hours daily, Monday
through Thursday; (13) Child had been residing with both
parents pursuant to an informal, temporary parent-time
schedule; (14) Child was well-adjusted and doing well under the
informal agreement. The district court also found:

Both parties acknowledged past deficiencies in
their parenting abilities. In essence both parties
have had periods in their [lives] when they have
been less than fit parents. However, at the present
time both parties contribute financially to the
welfare of [Child]; and both parties spend
appropriate time with, and provide appropriate
emotional support to [Child]. Essentially, both
parents are fit parents. Both are very bonded with
[Child].

¶8 In its analysis, the district court acknowledged that both
parties had a history of drug problems, criminal activities, and
extramarital sexual relations. “While Father cleaned his life up
sooner than Mother, there is insufficient evidence for [the district

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court] to make a decision as to whether one of the parties’ past
conduct was better or worse than the other.” Indeed, Father
admitted having a history of criminal activity, including “a
couple DUIs,” methamphetamine and marijuana use with
Mother, and being incarcerated more than three times. Mother
likewise admitted that she had a history of drug use and selling
drugs, but she had been “over a year clean” at the time of the
trial. Thus, the district court determined that “evidence relating
to past conduct and moral standards is equally balanced
between the parties.“

¶9 In determining which parent should have primary
physical care of Child, the district court highlighted four factors.
First, in analyzing which party was most likely to allow
“frequent and continuing contact with the other parent,” the
district court noted that the facts did not weigh in Father’s favor,
particularly because Father “surreptitiously” and
“underhandedly” took Child and did not allow Mother to
contact Child for a significant period. At the same time, the court
acknowledged that taking Child motivated Mother’s recovery
from drug use. The district court found the evidence supported
the conclusion that Child was “doing very well” in the care of
both parents and that both parties were cooperating in providing
the other “meaningful parent time.”

¶10 Second, the district court determined that Child had a
greater bond with Mother:

While [Child] has recently spent considerable
periods of time with Father, [Child] has overall
lived more with Mother than Father. Prior to the
time Father became concerned enough with
Mother’s drug use that he took self-help action,
Father was content to allow [Child] to live
primarily with Mother. The [district court]
considers such action (or non-action) on the part of

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Father to be a tacit acknowledgement that the best
interests of [Child] were being best served by
[Child] living primarily with Mother.

Thus, the district court determined that Mother had been the
primary caregiver for Child.

¶11 Third, “Mother’s work schedule is also more conducive to
her having primary physical care of [Child].” The court reasoned
that Mother could “devote more time to [Child’s] needs than
Father” because she “works fewer hours, travels less time to and
from work, and has a more consistent work schedule than
Father.”

¶12 Fourth, the court cited the distance separating the parties
as a motivating factor in its determination. “If the parties were
living in the same community, or within a reasonably close
distance from each other, the [district court] would likely have
found a joint physical custody arrangement to be in [Child’s]
best interests.” Indeed, both parties acknowledged at trial that
once Child begins school, one parent must necessarily have
primary custody. As Father noted, “Obviously when school
starts, I think that’s why we’re here today. . . . I don’t think we
could possibly do a two week on or a one week on schedule
when he’s going to school.”

¶13 Having weighed these factors, the court determined that
it was in Child’s best interests to award the parties joint legal
custody, with Mother having primary physical custody. The
district court further specified that “Father be allowed to exercise
liberal and meaningful parent time with [Child]. At a minimum
Father should be entitled to the aggregate amount of parent time
provided by Utah Code Ann. § 30-3-35; with adjustments being
made to that schedule to ensure Father’s parent time is
exercised, as much as is reasonably possible, at times Father is
off work.” Father appeals.

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ISSUES AND STANDARDS OF REVIEW

¶14 The first issue is whether the district court’s factual
findings were properly supported by the evidence. “A challenge
to the sufficiency of the evidence concerns the [district] court’s
findings of fact. Those findings will not be disturbed unless they
are clearly erroneous.” Kimball v. Kimball, 2009 UT App 233, ¶ 14,
217 P.3d 733 (cleaned up). And a “court’s factual determinations
are clearly erroneous only if they are in conflict with the clear
weight of the evidence, or if this court has a definite and firm
conviction that a mistake has been made.” Id. (cleaned up).

¶15 The second issue is whether the district court erred when
it departed from the informal custody arrangement and awarded
primary physical custody to Mother and only the statutory
minimum parent-time to Father. “We review custody
determinations under an abuse of discretion standard, giving the
district court broad discretion to make custody awards.” K.P.S.
v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (cleaned up). We will
not disturb the district court’s judgment “unless we determine
the [district] court has exceeded the scope of permitted
discretion or has acted contrary to law.” Davis v. Davis, 2001 UT
App 225, ¶ 6, 29 P.3d 676 (cleaned up). Further, “[i]t has long
been the law in this state that conclusions of law must be
predicated upon and find support in the findings of fact and that
the judgment or decree must follow the conclusions of law.”
Gillmor v. Wright, 850 P.2d 431, 436 (Utah 1993).

ANALYSIS

I. The Evidence Supported the District Court’s Factual Findings

¶16 Father’s first argument is that the evidence does not
support the court’s factual findings. The factual findings of the
district court “will not be disturbed unless they are clearly

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erroneous” by being “in conflict with the clear weight of the
evidence.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d
733 (cleaned up). But “the existence of conflicting evidence is not
sufficient to set aside a [district] court’s finding.” Bond v. Bond,
2018 UT App 38, ¶ 6, 420 P.3d 53 (cleaned up). Rather, “to
successfully challenge a [district] court’s factual finding on
appeal, the appellant must overcome the healthy dose of
deference owed to factual findings by identifying and dealing
with the supportive evidence and demonstrating the legal
problem in that evidence, generally through marshaling the
evidence.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890
(cleaned up). “The pill that is hard for many appellants to
swallow is that if there is evidence supporting a finding, absent a
legal problem—a ‘fatal flaw’—with that evidence, the finding
will stand, even though there is ample record evidence that
would have supported contrary findings.” Kimball, 2009 UT App
233, ¶ 20 n.5. Thus, “a party challenging a factual finding or
sufficiency of the evidence to support a verdict will almost
certainly fail to carry its burden of persuasion on appeal if it fails
to marshal.” State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645.

¶17 Here, Father has not addressed many of the district
“court’s findings and makes no attempt to marshal the evidence
in support of them. He clearly views the evidence as compelling
a different outcome, but it is not within our purview to engage in
a reweighing of the evidence, and [Father] has not demonstrated
that the evidence underlying the [district] court’s findings is
insufficient.” See Shuman v. Shuman, 2017 UT App 192, ¶ 9, 406
P.3d 258 (cleaned up). We illustrate a portion of the absence of
marshaling as follows.

A. Child’s Best Interests

¶18 Father disagrees that Mother is more likely than he is to
act in Child’s best interests. The court found that Father
“underhandedly” and “surreptitiously” took Child and “kept

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Child from Mother for some time.” Father responded that he
allowed phone contact between Mother and Child, and noted
that Mother never filed a police report against him after he took
Child, implying that she tacitly supported Father’s decision to
take Child. But Father fails to address why Mother would have
been reluctant to call police. Mother had warrants out for her
arrest. If she had filed a report, she likely would have lost
custody of Child because she would have been arrested. By
taking Child and withholding him from Mother, Father placed
Mother in a no-win situation.

¶19 In contrast to Father’s actions, the record indicates that
Mother was willing to let Father visit Child. Shortly after Child
was born and before paternity had been established, Mother
allowed Father to visit Child. Father admitted that Mother told
him he could come visit Child at her parents’ house, but Father
declined because there were “still feelings” and he was
“uncomfortable” with such an arrangement. After paternity was
established and Father agreed to pay child support, Mother
allowed him to spend time with Child at a restaurant—a
decision that led to her losing physical possession of Child.
Furthermore, unlike Father, Mother never attempted to
regain exclusive possession of Child through surreptitious
means.

¶20 The district court also found that Father’s “non-action” in
allowing Child to remain with Mother for the first eighteen
months of his life was a “tacit acknowledgment” that Child’s
best interests were served by remaining primarily with Mother.
The court also noted that, although there was some dispute in
the evidence at trial, Father told Mother shortly after taking
Child that this arrangement was temporary and “she would get
[Child] back after she cleaned up her drug use.”

¶21 From this evidence the court concluded that “the parties
have recognized it is in the best interest of [Child] that [Mother]

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continue” to be his primary caregiver. As we noted in Shuman,
Father “views the evidence as compelling a different outcome”—
that his efforts to gain custody of Child demonstrate he was not
content with allowing Child to live primarily with Mother—“but
it is not within our purview to engage in a reweighing of the
evidence.” 2017 UT App 192, ¶ 9 (cleaned up). Thus, the district
court’s determination that Child’s best interests were served by
awarding Mother primary custody was sufficiently supported
by the evidence and was not clearly erroneous. 4

B. Primary Caretaker Assessment

¶22 Father next argues that the district court’s finding that
Mother was the primary caretaker for the majority of Child’s life
is “contrary to the law and evidence.” But Child lived exclusively
with Mother for the first eighteen months of his life. In contrast,
the parties shared custody from January 2016 until trial in late
2016. Father had sole custody for only about seven months—
from May 2015 when he took child until January 2016 when the
parties agreed to a temporary custody arrangement.

4. The court concluded that Mother would be more likely than
Father to allow contact because Father resorted to self-help to
take possession of Child and then kept Child from Mother for
some time. Father did not deny taking and keeping Child. But he
asserted Mother stopped calling Child and never filed a police
report. Father further argued that the district court ignored
(1) Mother withholding Child from Father prior to the self-help
incident and (2) Father’s willingness to allow additional contact
under the informal custody arrangement. Although Father
presented evidence that would have supported a contrary
finding, we will not disturb the district court’s finding that
Mother was more likely to allow frequent and continuing
contact for the simple reason that this finding was also
supported by the evidence.

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¶23 Father responds that “[i]t is not who the child has lived
with the majority of his life, but who the child has lived with
once a party initiates legal action.” Father cites Davis v. Davis,
749 P.2d 647 (Utah 1988), in support of this proposition. We find
Father’s reading of Davis selective and inaccurate. In Davis, the
parties in a divorce proceeding agreed that the father would
have custody of a minor child so the child could stay in the
family home. Id. at 648. About one month later, the divorce
decree was set aside on the grounds that the mother was
emotionally unstable at the time of the original proceeding and
did not realize the consequences of her actions. Id. In the
renewed divorce proceedings, the court awarded custody of the
child to the father. Id. Our supreme court upheld the decision,
noting that the father had been the child’s “primary caregiver for
over a year and had provided a very stable environment.” Id.
From this holding, Father argues that because he had primary
custody of Child during the pendency of this matter, “[t]he
District Court erred in disregarding this information in favor of
the care provided by [Mother].”

¶24 As Mother points out in her brief, this “position is
contrary to Utah law and basic logic.” Such an approach might
require a court to award primary caretaker status to the parent
who filed for custody after only recently gaining possession of a
child over the interests of the parent who had a previous, but
much longer, possession. Father’s position is also contrary to
Davis. Directly following the statement that the current custody
arrangement should be given special weight, the Davis court
warned, “Of course, if the primary caregiver gained that status
wrongfully, courts should be careful not to reward such conduct
by giving the wrongdoer a consequential advantage in
evaluating the custody question.” Id. at 648–49. We find Father’s
reliance on Davis misplaced precisely because, as the district
court noted, he gained primary caregiver status wrongfully
when he “surreptitiously” and “underhandedly” took

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possession of Child through “self-help.” Therefore, the district
court’s finding was not clearly erroneous.

C. Work Schedule Analysis

¶25 Father also challenges the district court’s finding that
Mother’s work schedule was more conducive to her having
primary physical custody. Father argues that the district court’s
decision “[e]ssentially . . . came down to its finding that
[Mother’s] work schedule, a schedule where she worked more
days, but fewer hours in a two-week period than [Father] served
[Child’s] best interest.” Father’s characterization of the district
court’s analysis of the parties’ work schedules is flawed in three
respects.

¶26 First, Father fails to acknowledge that the work schedule
was one of three factors the district court highlighted in Mother’s
favor. The court also determined that Mother was more likely to
allow “frequent and continuing contact with the other parent”
and that Mother had a greater bond with Child.

¶27 Second, Father asserts that in Fullmer v. Fullmer, 761 P.2d
942 (Utah Ct. App. 1988), this court held that it is an abuse of
discretion to base a custody award on the parties’ work
schedules. But Father misreads that case. Fullmer stated that the
“[district] court abused its discretion by relying on [a minor
child’s] placement in full-time day care to change [the child’s]
custody placement” because “more and more children are raised
by single parents who must work.” Id. at 948. In the present case,
the district court did not punish Father for working. Rather, it
stated that Mother’s work schedule was more conducive to
devoting more time to Child.

¶28 Third, Father ignores the totality of the evidence. Father’s
job as a supervisor at a coal mine required that he work
variable twelve-hour shifts fourteen days out of every four

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weeks. In addition, Father has a nearly one-hour commute
each way to work. He admits that the length of his commute
requires him to rely on his extended family and his spouse to
address emergencies involving Child that might arise while he is
working. In contrast, Mother works Monday through Thursday
from 10:30 a.m. to 5:00 p.m. at a convenience store close to
home. Her employment affords her the flexibility to leave
during her shift if the need arises. Therefore, Father has not
shown that the district court’s finding that Mother can
devote more time to Child’s needs than Father was clearly
erroneous.

¶29 By failing to marshal the evidence in favor of the district
court’s findings, Father has not met his burden of persuasion.
Accordingly, we do not conclude that the findings are clearly
erroneous and instead conclude that, although we might
subjectively view the import of the evidence differently from the
district court, we cannot say that the conclusions are against the
great weight of evidence nor are we convinced that a mistake
has been made.

II. The District Court Erred in Awarding Father Minimum
Parent-Time

A. Deviation from the Informal Custody Arrangement

¶30 Father next argues that the district court erred by failing
to identify a compelling reason to deviate from the informal
custody arrangement—under which Child was thriving, happy,
and well-adjusted—and awarding primary physical custody to
Mother and parent-time to Father.5 “The importance of the

5. Father contends that Hudema v. Carpenter, 1999 UT App 290,
989 P.2d 491, stands for the proposition that the court must have
a compelling reason to disrupt a stable custody situation. We
(continued…)

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myriad of factors used in determining a child’s best interests
ranges from the possibly relevant to the critically important. At
the critically important end of the spectrum, when the child is
thriving, happy, and well-adjusted, lies continuity of
placement.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989
P.2d 491. “A very short custody arrangement of a few months,
even if nurturing to some extent, is not entitled to as much
weight as a similar arrangement of substantial duration. Of
course, a lengthy custody arrangement in which a child has
thrived ought rarely, if at all, to be disturbed, and then only if
the circumstances are compelling.” Elmer v. Elmer, 776 P.2d 599,
604 (Utah 1989) (cleaned up). In Davis v. Davis, 749 P.2d 647,
(Utah 1988), a custody arrangement that had been in place for
just over a year was held sufficient to establish continuity. Id. at
648.

(…continued)
disagree and find Father’s reliance on Hudema misplaced. In that
decision, a panel of this court noted, “[N]ot all continuity [of
custody arrangements] is alike. A heavy emphasis on preserving
stability presupposes that the prior arrangement is not only
satisfactory, but will in fact continue.” Id. ¶ 27. In Hudema, the
mother had sole physical custody pursuant to a court order. Id.
¶ 3. While the district court was considering a petition to modify
custody, the mother moved to another state. Id. ¶¶ 3–4. The
district court determined that the custody arrangement could
not continue due to changed circumstances. Id. ¶ 6. Accordingly,
this court in Pingree v. Pingree, 2015 UT App 302, 365 P.3d 713,
clarified that Hudema does not stand “for the proposition that a
court must find compelling circumstances before ordering a
change in custody when the child thrives under the current
arrangement” but for the proposition that “[a] modification is
premised on a finding of changed circumstances.” Id. ¶ 13. The
present case is not presented in that context.

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¶31 In the present case, we note that the informal custody
arrangement was temporary and had been in place for about ten
months—from January 2016 until the district court’s decision in
November 2016—falling between the lengths of duration
established in our case law. But the length of the informal
custody arrangement is not the dispositive factor here. Rather,
the district court recognized that the agreement could not
continue because Child would be starting school the following
year. And Father admits that “when [Child] turns five and
begins kindergarten, the Court really does have to pick one
parent for [Child] to reside with, at least Monday through
Friday.” Mother also acknowledges that where Child attends
school is an issue that must be addressed. Thus, the district court
acted within its discretion and supported its decision with
adequate findings when it departed from the informal custody
arrangement. An imminent change in circumstance, namely
Child’s starting school, required a change in the custody
arrangement. Father fails to address this significant undisputed
fact.

¶32 The district court acknowledged that joint physical
custody would be in Child’s best interests if the parties lived in
the same community, but the parties’ distance from each other
precluded such an arrangement. Prompted by this reality, the
district court weighed the factors, see supra ¶¶ 9–11, and
concluded that Child’s best interests were served by awarding
Mother primary physical custody. It noted that (1) Mother had
been the primary caregiver for the majority of Child’s life,
(2) Mother was more likely to allow “frequent and continuing
contact with the other parent,” and (3) Mother’s work schedule
was more conducive to having primary physical care of Child.
As this court noted in Kimball v. Kimball, 2009 UT App 233, 217
P.3d 733, “if there is evidence supporting a finding, absent a
legal problem—a ‘fatal flaw’—with that evidence, the finding

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will stand, even though there is ample record evidence that
would have supported contrary findings.” Id. ¶ 20 n.5.

¶33 Thus, we conclude that the district court did not exceed
its discretion in relying on evidence of changed circumstances in
departing from the informal custody arrangement and awarding
Mother primary physical custody of Child.

B. The Award of Parent-Time to Father

¶34 Father argues that the district court erred in awarding
him minimum parent-time, asserting that he showed by a
preponderance of the evidence that he should be awarded
parent-time in excess of the minimum guidelines in Utah Code
sections 30-3-35 and 30-3-35.5. We agree that the district court’s
award of only minimum parent-time was not supported by its
findings.

¶35 “[T]he parent-time schedule as provided in Sections
30-3-35 and 30-3-35.5 shall be presumed to be in the best interests
of the child . . . .” Utah Code Ann. § 30-3-34(2) (LexisNexis Supp.
2018). 6 But these parent-time schedules are subject to
adjustment. See id. The schedules represent the minimum parent-
time to which the noncustodial parent is entitled unless one of
the parents can establish, by a preponderance of the evidence,
that more or less time should be awarded based upon a number
of criteria. See id. Criteria relevant to the case at hand include,
amongst a lengthy list, (1) the distance between the residences of
the custodial and noncustodial parents, (2) shared interests
between the child and the noncustodial parent, (3) involvement
of the noncustodial parent in the child’s community activities,

6. We cite to the current version of this section because the recent
amendments do not affect our analysis or the issue as presented
by the parties.

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and (4) “any other criteria the court determines relevant to the
best interests of the child.” Id. § 30-3-34(2)(b), (h), (i), (o).
Regardless of whether the court awards minimum parent-time
or awards more or less than the statutory minimum, the statute
requires the court to “enter the reasons underlying its order.” Id.
§ 30-3-34(3).

¶36 Without specifically referencing the statutory criteria,
Father contends that the following evidence supported awarding
him parent-time in excess of the statutory minimum:
(1) Mother’s testimony that Child should have equal time with
both parents; (2) neither distance nor finances made “frequent
and meaningful” visitation prohibitive; (3) travel between the
parents’ residences was not harmful to Child; (4) Child shared a
strong bond with Father and Father’s wife and other children;
and (5) Child thrived by following the routine in Father’s
household.

¶37 “It has long been the law in this state that conclusions of
law must be predicated upon and find support in the findings of
fact and that the judgment or decree must follow the conclusions
of law. When there is variance, the judgment must be corrected
to conform with the findings of fact.” Gillmor v. Wright, 850 P.2d
431, 436 (Utah 1993). Such correction is appropriate in this case.

¶38 In the very sentence stating that it found Child’s best
interests were served by awarding primary physical custody to
Mother, the district court also stated that it “would likely have
found a joint physical custody arrangement to be in [Child’s]
best interests” if the parties lived reasonably close to each other.
The district court reasonably concluded that the distance
separating the parties’ residences justified something less than
equal parent-time, especially once Child starts attending school.
After all, Mother and Father agree that a 100-mile commute to
school is unworkable. But this distance does not prevent other
possible accommodations that could be accomplished without

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Nebeker v. Orton

undue disruption to Child’s school schedule, such as awarding
Father additional weekend time or more parent-time over the
summer vacation, fall break, spring break, and holidays.

¶39 The district court made no attempt to explain, as required
by the statute, its reason for awarding minimum parent-time. See
Utah Code Ann. § 30-3-34(3). Given the district court’s findings
that (1) Child was “well adjusted and doing very well pursuant”
to the informal custody arrangement, (2) “[b]oth parents deeply
love and are committed to [Child],” (3) “both parents are
extremely motivated to be awarded physical custody of [Child],”
(4) both parties offer financial and emotional support to Child,
(5) “both parties spend appropriate time with” Child, (6) both
parents are “fit” and “very bonded” with Child, and (7) the
parties agree that Child needs a “relationship” and “substantial
time with” the other parent, we would have expected that the
court attempt to increase Father’s parent-time over the statutory
minimum. Indeed, we are hard-pressed to understand the
process by which the court awarded Father minimum
parent-time when—in its own words—Father should be
“allowed to exercise liberal and meaningful parent time” and
where Mother argued at trial that both parents should have
equal time with Child. In reality, the record reflects that Mother
was arguing that she should have enhanced parent-time, likely
believing that Father would prevail as the primary caretaker.
Both through the presentation of evidence and in argument,
Mother supported the notion that in this case enhanced
parent-time should be awarded to the non-primary caregiver.
Accordingly, awarding Father the statutory minimum
parent-time while simultaneously concluding that the evidence
supports awarding Father “liberal and meaningful” parent-time
presents a conclusion that does not follow from the findings
stated.

¶40 On this single issue we determine that the district court’s
conclusion is not supported by its findings, and therefore the

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Nebeker v. Orton

court exceeded its discretion when it minimized Father’s
parent-time. Thus, we reverse on this issue because of
inadequate findings and remand for additional findings and, if
necessary, a reevaluation of what additional parent-time should
be awarded.

CONCLUSION

¶41 We conclude that the evidence supports the district
court’s findings leading it to determine that Child’s best interests
were served by awarding primary physical custody to Mother.
We further conclude that the district court made adequate
findings supported by the record to depart from the informal
custody arrangement, but we conclude that the court’s findings
are inadequate to justify an award of only minimum parent-time
to Father. Accordingly, we remand this matter for further
proceedings.

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