Kelly v. Johnson

2025 UT App 175

THE UTAH COURT OF APPEALS

SHAYNE KELLY,
Appellee,
v.
IRIS JOHNSON,
Appellant.

Opinion
No. 20240857
Filed November 28, 2025

Second District Court, Farmington Department
The Honorable David M. Connors
The Honorable Jennifer L. Valencia
No. 164701157

Steve S. Christensen and Clinton R. Brimhall,
Attorneys for Appellant
Julie J. Nelson, Attorney for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.

OLIVER, Judge:

¶1 Shayne Kelly and Iris Johnson have two children together
but never married. Following the end of their relationship, the
district court issued a decree of custody and support (the Decree)
granting the parties joint physical and legal custody of the
children. Johnson sought to relocate with the children to
California and filed a petition to modify the Decree (the Petition).
Kelly filed a counterpetition to modify the Decree (the
Counterpetition). After a bench trial, the district court awarded
Kelly sole physical custody of the children, along with sole legal
custody as to extracurricular activities. Johnson then filed a
Kelly v. Johnson

motion for additional or amended findings of fact, a new trial, or
an amended judgment (the Post-trial Motion). The district court
made additional findings but otherwise denied the Post-trial
Motion. Johnson now appeals. We affirm.

BACKGROUND 1

The Initial Proceedings

¶2 Kelly and Johnson had a relationship from which two
children were born. The parties separated in July 2016. A bench
trial was held in 2018 addressing child support and custody
issues, including Johnson’s proposed unilateral relocation with
the children to California. Following the bench trial, the district
court awarded the parties joint physical and legal custody of the
children, with a 3/4 parent-time split in favor of Johnson. The
court found a unilateral relocation by Johnson was not “necessary
or in the best interest of the children.” The court acknowledged it
could not prevent Johnson from relocating to California but noted
if she went forward with her relocation, it “may then order a
change in custody of the children” under Utah Code section 81-9-
209 (the Relocation Statute). 2 The court then entered the Decree in
accordance with its findings.

1. The custody proceedings between Kelly and Johnson have been
both contentious and lengthy, with the parties needing to engage
a special master to resolve disputes. In the words of the district
court, “the level of litigation here is unbelievable.” Thus, we
include only those facts necessary to decide the issues on appeal.

2. The district court applied Utah Code section 30-3-37, which has
since been renumbered as Utah Code section 81-9-209. As there
have been no material changes to the relevant language of the
statute, we cite the current version for convenience.

20240857 2 2025 UT App 175
Kelly v. Johnson

The Petition and the Counterpetition

¶3 In December 2019, Johnson filed the Petition, expressing
her intent to relocate from Utah to San Diego, California, “within
the next 60 days.” Johnson worked as a flight attendant and stated
her airline “would welcome” her “changing flight hubs from Salt
Lake City to San Diego.”

¶4 Kelly opposed the Petition and filed the Counterpetition.
He asserted the “issue of [Johnson’s] proposed unilateral
relocation to California was front and center at trial,” and because
the district court correctly found that if Johnson relocated, it may
now consider a change in custody pursuant to the Relocation
Statute. Kelly further alleged that Johnson had already relocated
to California and therefore, it would be in the children’s best
interest to grant Kelly full custody.

The Trial

¶5 A three-day bench trial was held in December 2023 and
January 2024 addressing Johnson’s relocation and custody. As the
trial was about to start, Johnson moved to dismiss both the
Petition and the Counterpetition. She argued that because she had
decided not to relocate, neither the Petition nor the
Counterpetition “ha[d] a basis to show a change in
circumstances” as required by Utah Code section 81-9-208 (the
Modification Statute). In response, Kelly argued that this was the
first time he heard Johnson was “not planning on moving forward
with her relocation” and asserted Johnson had already relocated,
as alleged in the Counterpetition. The district court noted that it
too “was surprised” at Johnson’s change in position. It dismissed
the Petition but allowed Kelly to proceed with the
Counterpetition.

¶6 At trial, Kelly called three witnesses: himself, Johnson, and
the parties’ custody evaluator (Custody Evaluator). Kelly testified

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Kelly v. Johnson

that although Johnson had not formally notified him she had
relocated, he believed Johnson lived in San Diego. He testified
Johnson traveled frequently to California with the children and
provided Kelly with the same San Diego address on the travel
notifications she sent him each time she traveled with them. Kelly
testified he was concerned the children had been traveling
excessively due to Johnson’s relocation. 3 Kelly further testified
that Johnson opposed extracurriculars he suggested for the
children in favor of the children spending time in California. For
example, in one email exchange between the parties, Johnson
asked Kelly, “[A]re you taking the [children’s] best interests into
consideration by requesting this specific soccer league (which
only has games on Saturdays)? Are you considering the [children]
when suggesting they do not go to San Diego for all of September
and October?”

¶7 In her testimony, Johnson said she lived in Layton, Utah,
in her parents’ house and had lived there since she and Kelly
separated. She testified she had a Utah driver’s license, was
registered to vote in Utah, and received mail in Utah. She
acknowledged she had not considered the Layton house to be her
primary address for the entirety of the litigation between the
parties, but she testified she no longer lived in San Diego, and she
last considered it home in 2021. She testified she purchased three
houses in California: one she rents as an Airbnb; a second she
previously stayed in with the children but now uses as a rental;
and a third she purchased in 2022 prior to Custody Evaluator’s
visit to San Diego, but which she sold to a friend in 2023. Johnson
testified she paid California state taxes on her rental properties.

3. Kelly testified the children traveled to San Diego eighteen times
in 2022 and eleven times during an eight-month period in 2023.
He introduced exhibits showing that one child had flown 101
times between December 2017 and June 2021 and the other had
flown 107 times between July 2017 and June 2021.

20240857 4 2025 UT App 175
Kelly v. Johnson

She also testified she was in an online Master of Clinical
Psychology program at a California university and planned to
seek licensure in California upon graduation. She testified she
decided not to relocate to California “when it was evident that the
[custody] evaluation said that the relocation was not in the best
interests of the [children].” When asked why she did not move to
dismiss the Petition prior to the morning of trial, she stated, “Well,
I wouldn’t have filed anything . . . personally. I don’t know.”

¶8 Custody Evaluator testified that the court appointed him
to perform a custody evaluation after Johnson requested one “to
resolve the dispute over the [children’s] relocation.” He testified
it was his understanding that “one of the main reasons for the
custody evaluation from [Johnson’s] perspective was her desire to
move to California.” He testified he visited her house in California
in September 2022, where the children’s rooms were full of toys,
and it “looked like a home that was lived in.” He testified one of
the children told him they live in California with their mom.
When asked whether it would surprise him that Johnson testified
“she had not resided in California except for brief periods of
staying down there,” Custody Evaluator answered that it would.
He further testified his recommendation was for Johnson not to
relocate and for the parties to have a 50/50 week-on, week-off joint
physical custody arrangement. When asked whether this
recommendation would work if Johnson moved to California,
Custody Evaluator replied, “It doesn’t.” He also testified the
frequent travel between Utah and California was “a stressor to the
kids” and “led to missed soccer games and other things of that
nature that the kids talked about.”

¶9 Following the testimony, Johnson orally moved to dismiss
the Counterpetition on the grounds that Kelly did not
demonstrate a change in circumstances. Johnson argued it was
“undisputed” she did not relocate to California and the only
travel was Johnson “traveling to her work and the kids going with
her for summer trips and once a month, at most, to California.”

20240857 5 2025 UT App 175
Kelly v. Johnson

She asserted the only change was that the children were now
older, which is not a change in circumstance.

¶10 The district court denied Johnson’s motion to dismiss. In
doing so, the court explained it had concerns with Johnson’s
credibility. The court explained it considered the dismissal of the
Petition “a tactic . . . intended to avoid what [Custody Evaluator]
delved into,” namely whether relocation was in the children’s best
interest. The court found there was “sufficient evidence” Johnson
resided in California from at least 2019 through September 2023
and, at the time of trial, had no verifiable address. The court then
found “a material and substantial change of circumstances”
existed because Johnson “did effectively relocate” to California.

The Order

¶11 After taking the matter under advisement, the district court
issued a lengthy written order granting the Counterpetition (the
Order). The district court found Johnson’s “testimony to be
disingenuous” and “largely disregarded [it] because it lack[ed]
candor, credibility, and trustworthiness.” The district court found
that though Johnson testified she decided not to relocate to San
Diego and had not considered it home since 2021, “[a]ll pleadings
and positions taken by [her] since December of 2019 st[ood] in
direct conflict with her testimony.” The district court found
Johnson “not only indicated she intended to relocate, but she in
fact did relocate to California within 60 days of the notice of such
intent” and “continue[d] to primarily reside in California.” The
court found Johnson’s parents’ address was not Johnson’s
primary residence and Johnson was “perpetrat[ing] a fraud upon
the [c]ourt by claiming she still live[d] in her parent[s’] home—
despite all evidence to the contrary.” The court further found
Johnson’s testimony “demonstrated a pattern of selectively
hearing statements which might coincide with her position,”
resulting in her creating a narrative, which was “at times wildly

20240857 6 2025 UT App 175
Kelly v. Johnson

inconsistent with reality.” By contrast, the court found Kelly’s
testimony “to be largely credible.”

¶12 The court then applied the Relocation Statute. The district
court found that Johnson chose to move to California despite the
finding in the Decree that Johnson’s relocation was not in the best
interest of the children. The court then modified the existing joint
custody order and granted Kelly full physical custody in
accordance with the Relocation Statute.

¶13 The court next addressed Johnson’s contention that “a
material and substantial change of circumstances was required”
to modify the Decree. The court stated it did not “perceive” such
a finding was required by the Relocation Statute, but regardless,
it found “that a material and substantial change of circumstances
had occurred. Namely, that [Johnson] not only relocated herself
to California subsequent to the Decree, but also ha[d] taken the
children with her to California during much of her parent-time
over the past four years.”

¶14 The court also made additional best interest findings. It
found that Johnson had

demonstrated a continuous and repeated pattern
under the existing joint custody order over the past
four years of traveling by airplane to and from San
Diego with the children multiple times per month
during her parent-time. The pattern and extent of
travel was not and is not in the best interest of the
children. . . . [Johnson] will continue the pattern
absent a change of custody.

The court further found “the time the children spend each month
in airports, in travel to and from California, and in California
during [Johnson’s] parent-time, is excessive and not in their best
interests,” “the present pattern of parent-time . . . is ‘wholly

20240857 7 2025 UT App 175
Kelly v. Johnson

unworkable,’” and “the children do not have time available for
their own individual development.” The court stated it could not
“imagine how [the] children could be expected to develop as
healthy, happy, and successful individuals under the existing
circumstances.” The court then awarded Johnson parent-time as
the parties could agree—so long as Johnson exercised her time
primarily in Utah—and limited the children’s travel to one trip
per month. If the parties were unable to agree, parent-time would
be the statutory minimum under the Relocation Statute. The court
also awarded Kelly sole legal custody as to extracurricular
activities. The court then issued a modified decree in line with its
findings (the Modified Decree).

The Post-trial Motion

¶15 Johnson then filed the Post-trial Motion, requesting the
court make additional findings as to, among other things, her
relocation to California, why the court “depart[ed]” from Custody
Evaluator’s recommendation of 50/50 joint custody, and why the
court granted Kelly sole legal custody as to extracurriculars.

¶16 The district court denied the Post-trial Motion (the Post-
trial Order), stating the Order “adequately addressed” Johnson’s
claimed deficiencies. Nevertheless, the court stated, “To the extent
[Johnson] seeks confirmation from the [c]ourt that the parent-time
schedule ordered pursuant to [the Order and the Modified
Decree] is in the best interests of the minor children, the [c]ourt so
finds.” It found the Order “sufficiently address[ed] . . . whether
altering the existing custody arrangement [was] in the best
interests of the children.”

¶17 But regarding extracurricular activities, the court entered
multiple additional findings, including the following: Kelly’s
testimony on the issue was more credible than Johnson’s; though
parallel parenting can be useful “in general, it can result in a
scenario where a single child is expected to be in two different

20240857 8 2025 UT App 175
Kelly v. Johnson

places and/or engage in two different activities at the same time,”
which “is untenable for any single child”; and it was in the
children’s best interest for Kelly “to have sole legal custody over
extracurricular activities.” The court further found that granting
Kelly full legal custody in this realm would prevent Johnson from
thwarting the children’s “participation in soccer (as she ha[d]
done in the past).”

ISSUES AND STANDARDS OF REVIEW

¶18 Johnson first argues the district court erred by applying the
Relocation Statute rather than the Modification Statute. We
review the “applicability of a particular . . . statute” for
correctness. Gullickson v. Gullickson, 2013 UT App 83, ¶ 16, 301
P.3d 1011.

¶19 Johnson next argues the district court abused its discretion
in its custody and parent-time decisions. “We review the district
court’s custody and parent-time determination for abuse of
discretion,” and “as long as the court exercises [its discretion]
within the confines of the legal standards we have set, and the
facts and reasons for the decision are set forth fully in appropriate
findings and conclusions, we will not disturb the resulting
award.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 17, 509 P.3d 806
(cleaned up).

ANALYSIS

I. The Relocation Statute

¶20 Johnson argues the district court erred when it applied the
Relocation Statute rather than the Modification Statute. In her
view, the Modification Statute applies here because the matter
being decided at trial was the Counterpetition. And since she
“withdrew her request to relocate with the children before trial”

20240857 9 2025 UT App 175
Kelly v. Johnson

and “conceded that there would be no relocation,” the district
court “was not operating under the procedure set forth” in the
Relocation Statute and was required to follow the Modification
Statute. As a result, Johnson argues, the district court failed to
make the required factual findings that there was a change of
circumstances and that awarding custody to Kelly was in the
children’s best interest. We disagree.

¶21 Johnson’s argument overlooks two key points. First, the
Counterpetition alleged that she had already relocated, so the
issue of relocation was squarely before the district court even after
she withdrew the Petition. Second, and more importantly,
Johnson does not challenge the district court’s finding that she
had relocated to California. She generally points to evidence that
she took the children to school and extracurricular activities in
Utah, but “mere assertions . . . are insufficient to challenge a
district court’s factual findings on appeal, and we may accept
unchallenged findings of fact as true.” Bel Courtyard Invs., Inc. v.
Wolfe, 2013 UT App 217, ¶ 23, 310 P.3d 747 (cleaned up). Put
simply, Johnson does not challenge the court’s factual finding that
she relocated to California. “Accordingly, [she] falls short of
showing that the district court’s legal conclusion” concerning
application of the Relocation Statute was “erroneous as a matter
of law.” Bradshaw v. Pelley-Whelan, 2019 UT App 201, ¶ 1, 456 P.3d
765. Because the district court found that Johnson relocated, it
correctly applied the Relocation Statute.

¶22 And under the Relocation Statute, no additional best
interest findings are required. As this court explained in Pingree v.
Pingree, 2015 UT App 302, 365 P.3d 713,

[I]f a court determines that relocation is not in a
child’s best interest, it then has authority to order a
change in custody if a custodial parent chooses to
relocate. . . . Notably, the statute does not require a
separate analysis of whether such a change in

20240857 10 2025 UT App 175
Kelly v. Johnson

custody would be in the child’s best interest.
Instead, such a conclusion is implicit in the initial
best-interests analysis: if it is not in [the child’s] best
interest to relocate, it is in [his or] her best interest to
remain where [he or] she currently lives. And if
Mother opts to relocate, the only way for [the child]
to remain in Utah is with a change in custody.

Id. ¶ 12. Here, the district court performed a best interest analysis
in the Decree. It found Johnson’s relocation to California was not
“necessary or in the best interest of the children” and if Johnson
relocated to California, the court “may then order a change in
custody of the children” pursuant to the Relocation Statute. Thus,
no additional best interest analysis was required before changing
custody due to Johnson’s relocation. See id.

¶23 Moreover, even if Johnson was correct that the Relocation
Statute did not apply (thus necessitating findings on a change of
circumstances) or that the Relocation Statute required an
additional best interest analysis, she is simply wrong when she
asserts that the district court failed to make such findings. Indeed,
the court made factual findings on both a change of circumstances
and the best interest of the children. First, the court “verbally
found on the record . . . that a material and substantial change of
circumstances had occurred.” Second, the court “specifically”
found that the travel time was “excessive and not in [the
children’s] best interests,” and that Johnson would continue to
engage in such excessive travel until there was a change of
custody. The court also affirmed in the Post-trial Order that the
parent-time schedule it ordered under the Relocation Statute was
“in the best interests of the minor children.”

¶24 In sum, because the district court’s finding that Johnson
relocated to California stands unchallenged, the district court
correctly applied the Relocation Statute. No additional best

20240857 11 2025 UT App 175
Kelly v. Johnson

interest analysis is required under the Relocation Statute, and
such analysis was conducted in any event.

II. Physical and Legal Custody

¶25 Johnson next argues the district court abused its discretion
in its decisions on physical custody and parent-time, as well as in
its decision on legal custody over the extracurricular activities. We
find neither argument persuasive.

A. Physical Custody and Parent-time

¶26 Johnson asserts the Order and the Post-trial Order did not
“articulate some reason for rejecting” Custody Evaluator’s
recommendation of joint physical custody and equal parent-time.
At trial, Custody Evaluator testified he recommended Johnson
not relocate and if Johnson relocated to California, equal parent-
time would not work. And the district court found Johnson
relocated. Thus, the district court did not “reject” Custody
Evaluator’s recommendation for equal parent-time but rather
determined it did not apply because Johnson had relocated. With
Custody Evaluator’s recommendation no longer an option, the
court applied the Relocation Statute, granting Kelly full physical
custody and Johnson parent-time as the parties could agree, or the
statutory parent-time if they could not.

¶27 “To successfully challenge a district court’s factual findings
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 . . . .” Lobendahn v. Lobendahn, 2023 UT
App 137, ¶ 23, 540 P.3d 727 (cleaned up). But, as discussed supra
¶ 21, Johnson does not challenge the district court’s finding that
she relocated to California, nor does she acknowledge that
Custody Evaluator’s 50/50 custody recommendation was based
on her living in Utah full time. Thus, it was well within the court’s

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Kelly v. Johnson

discretion to change physical custody and award the Relocation
Statute’s minimum parent-time if the parties were unable to agree
on an alternative schedule. 4

B. Legal Custody Over Extracurricular Activities

¶28 Johnson asserts the district court abused its discretion in
awarding Kelly sole legal custody regarding the children’s
extracurricular activities. Specifically, she complains the district
court’s findings on this issue were “lacking” and “do not appear
to have rational basis or logic.”

¶29 Here, the district court specifically articulated the reasons
for its legal custody award, finding it would be “untenable for any
single child” to be “expected to be in two different places and/or
engage in two different activities at the same time.” It further
found Kelly’s testimony on this issue to be more credible than
Johnson’s and agreed with Kelly that granting him full legal
custody in this realm would prevent Johnson from thwarting the
children’s participation in soccer, which she had done previously.
Contrary to Johnson’s assertion, this reasoning is both “rational”
and “logical.”

¶30 Essentially, Johnson is displeased her request for
additional findings in the Post-trial Motion did not result in

4. Johnson further argues that even if the Relocation Statute
applies, she should not have been awarded the statutory
minimum parent-time because nothing in the Relocation Statute
indicates Utah Code section 81-9-206, which provides guidelines
for determining parent-time in a modification proceeding, does
not apply. But the district court found Johnson relocated.
Therefore, this was a relocation case, not a modification case, and
the district court properly ordered parent-time “as the parties can
agree” or according to the Relocation Statute.

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Kelly v. Johnson

findings in her favor. “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 . . . record evidence that would have
supported contrary findings.” Kimball v. Kimball, 2009 UT App
233, ¶ 20 n.5, 217 P.3d 733. Here, sufficient evidence supports the
district court’s finding, including that Johnson’s repeated travel to
San Diego with the children prevented them from participating in
extracurricular activities and Custody Evaluator’s testimony that
the children reported missing soccer games to be with Johnson in
California. And to the extent the issue turns on the credibility of
the witnesses, we must defer to the district court’s finding that
Kelly was more credible than Johnson. See Meyer v. Aposhian, 2016
UT App 47, ¶ 16, 369 P.3d 1284 (“Because the district court judge
was uniquely equipped to make credibility determinations, we
defer to the credibility findings of the district court . . . .” (cleaned
up)).

¶31 The only contrary evidence Johnson points to is that the
parties previously engaged a special master to assist with
disputes involving extracurriculars, and she argues that they
should still be able to do so. Johnson “clearly views th[is] evidence
as compelling a different outcome, but it is not within our
purview to engage in a reweighing of the evidence.” Lobendahn,
2023 UT App 137, ¶ 24 (cleaned up). And Johnson “has not
demonstrated that the evidence underlying the district court’s
findings” as to extracurricular activities is insufficient. Id. (cleaned
up). Therefore, the district court did not abuse its discretion in
awarding Kelly sole legal custody as to extracurricular activities.

CONCLUSION

The district court correctly applied the Relocation Statute and did
not abuse its discretion in its custody and parent-time decisions.
Accordingly, we affirm.

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