Lay v. Lay

2018 UT App 137

THE UTAH COURT OF APPEALS

BRANDON CHRISTOPHER LAY,
Appellant,
v.
CORINNA NICOLE LAY,
Appellee.

Opinion
No. 20170230-CA
Filed July 12, 2018

Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 074400807

Steve S. Christensen and Clinton R. Brimhall,
Attorneys for Appellant
J. Brady Kronmiller and Amy G. Larsen, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and RYAN M. HARRIS
concurred.

POHLMAN, Judge:

¶1 Brandon Christopher Lay and Corinna Nicole Lay, now
Corinna Nicole Gustafson, divorced in 2008. The divorce decree
awarded the parties joint legal and physical custody of their
minor daughter (Child). Gustafson was designated as Child’s
primary physical caretaker, and Lay was granted six out of every
fourteen overnights for parent-time. Around 2011, the parties
informally agreed to a new parent-time schedule due to conflicts
with Lay’s work schedule and Child’s need for more stability.
Under their agreement, Lay would have Child only on
alternating weekends, Friday night through Sunday night.
Although Lay’s scheduling conflict was eventually resolved, the
Lay v. Lay

parties continued to operate under the revised parent-time
schedule for approximately five years.

¶2 In 2015, the parties—for different reasons—each asked the
district court to modify the divorce decree. The district court
ordered that the parent-time schedule originally established in
the divorce decree be followed during the summer months. For
the school year, the court ordered that Lay would have Child
only on alternating weekends but that his parent-time “should
be Friday and Saturday nights only, not Sunday nights, to better
accommodate school attendance.”

¶3 Lay appeals, raising two main challenges. First, Lay
contends that the district court misinterpreted the statute that
provides for increased parent-time for the noncustodial parent
and erred by not adopting the optional schedule described in
that statute. Second, Lay contends that the district court
exceeded its discretion and made legally inadequate findings
regarding its decision to grant him “only alternating Friday and
Saturday overnights during the school year instead of
alternating Friday, Saturday, and Sunday overnights” and its
decision to deny him midweek parent-time during the school
year. We affirm with respect to Lay’s first contention, but
because we agree with Lay that the district court’s findings are
inadequately detailed, we remand for further proceedings.

STANDARDS OF REVIEW

¶4 We generally will not disturb the district court’s
parent-time determination absent a showing that the court has
abused its discretion. See Wight v. Wight, 2011 UT App 424, ¶ 23,
268 P.3d 861. However, we review the district court’s
interpretation of a statute for correctness. Id. Likewise, “we
review the legal adequacy of findings of fact for correctness as a
question of law.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 15, 257
P.3d 478 (quotation simplified); see also Brown v. Babbitt, 2015 UT
App 161, ¶ 5, 353 P.3d 1262 (“We review the legal sufficiency of

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Lay v. Lay

factual findings—that is, whether the [district] court’s factual
findings are sufficient to support its legal conclusions—under a
correction-of-error standard, according no particular deference
to the [district] court.” (quotation simplified)).

ANALYSIS

I. The Statutory Optional Parent-Time Schedule

¶5 Lay first contends that the district court misinterpreted
Utah Code section 30-3-35.1, which sets forth an optional
parent-time schedule that provides more parent-time for the
noncustodial parent than the default minimum amount.
According to Lay, he satisfied his evidentiary burden under that
statute, and the district court was therefore required to adopt that
statute’s optional parent-time schedule. 1

¶6 Each divorced parent “is entitled to and responsible for
frequent, meaningful, and continuing access with the parent’s

1. In the alternative, Lay contends that the court should have
adopted the parent-time schedule under Utah Code section
30-3-35.1 because it is in Child’s best interest. As we discuss
below, infra ¶¶ 26–28, the court’s findings are not adequately
detailed to permit meaningful appellate review. It is therefore
premature for us to consider a challenge to the district court’s
assessment of Child’s best interest.
Lay also alternatively contends that the district court’s
factual findings related to section 30-3-35.1 are “wholly
insufficient” and provide “no explanation” for its decision not to
implement the schedule under that section. While we observe
that district courts “are not required . . . to discuss all aspects of a
case that might support a contrary ruling,” Shuman v. Shuman,
2017 UT App 192, ¶ 6, 406 P.3d 258, because we are remanding
this case for the entry of more detailed findings, we need not
consider this argument further.

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child consistent with the child’s best interests.” Utah Code Ann.
§ 30-3-32(2)(b)(ii) (LexisNexis Supp. 2017). To that end, Utah
Code section 30-3-35 sets a default minimum parent-time
schedule “to which the noncustodial parent and the child [who
is between five and eighteen years old] shall be entitled,” id.
§ 30-3-35(2), unless “the court determines that Section 30-3-35.1
should apply” or a parent can establish “that more or less
parent-time should be awarded,” id. § 30-3-34(2). Under the
default minimum schedule in section 30-3-35, the noncustodial
parent is entitled to parent-time with the child during one
weekday evening and on alternating weekends, which include
Friday and Saturday overnights. See id. § 30-3-35(2)(a)(i), (2)(b)(i).

¶7 The Utah Code also provides an alternative statutory
parent-time schedule for children between five and eighteen
years old. Enacted in 2015, Utah Code section 30-3-35.1 describes
an “optional” increased parent-time schedule. Id. § 30-3-35.1.
Under this schedule, the noncustodial parent has parent-time for
one weekday overnight and, on alternating weekends, three
overnights (Friday through Sunday nights), resulting in the
noncustodial parent having approximately 145 overnights with
the child during a calendar year. Id. § 30-3-35.1(1), (6).

¶8 The statute directs that “[t]he parents and the court may
consider” the increased parent-time schedule under section
30-3-35.1 “as a minimum” in two circumstances: when “the
parties agree,” or when “the noncustodial parent can
demonstrate” the existence of certain factors. Id. § 30-3-35.1(2)
(emphasis added). Those factors are:

(a) the noncustodial parent has been actively
involved in the child’s life;

(b) the parties are able to communicate effectively
regarding the child, or the noncustodial parent has
a plan to accomplish effective communications
regarding the child;

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(c) the noncustodial parent has the ability to
facilitate the increased parent-time;

(d) the increased parent-time would be in the best
interest of the child; and

(e) any other factor the court considers relevant.

Id.

¶9 Lay contends that, if a noncustodial parent successfully
demonstrates that the factors listed in Utah Code section
30-3-35.1(2) are present, then the parent-time schedule in that
section “becom[es] the minimum amount of parent time that a
trial court may award to the noncustodial parent.” Specifically,
he asserts that once the noncustodial parent makes the required
showing, the district court must order the parent-time schedule
laid out in section 30-3-35.1. Lay acknowledges the statute
provides that the court “may consider” the increased
parent-time schedule upon such a showing, but he asserts that
“[t]he word may in the statute should be construed . . . as shall.”
We disagree.

¶10 “When we interpret statutes, our primary objective is to
ascertain the intent of the legislature.” Scott v. Scott, 2017 UT 66,
¶ 22 (quotation simplified). Because “the best evidence of the
legislature’s intent is the plain language of the statute itself, we
look first to the plain language of the statute.” Id. (quotation
simplified). “In so doing, we presume that the legislature used
each word advisedly” and that “the expression of one term
should be interpreted as the exclusion of another, thereby
presuming all omissions to be purposeful.” Bagley v. Bagley, 2016
UT 48, ¶ 10, 387 P.3d 1000 (quotations simplified). “Further, we
interpret statutes to give meaning to all parts, and avoid
rendering portions of the statute superfluous.” Dahl v. Dahl, 2015
UT 79, ¶ 159 (quotation simplified). “To do so, we read the plain
language of the statute as a whole, and interpret its provisions in
harmony with other statutes in the same chapter and related

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chapters.” Id. (quotation simplified). “When we can ascertain the
intent of the legislature from the statutory terms alone, no other
interpretive tools are needed, and our task of statutory
construction is typically at an end.” Scott, 2017 UT 66, ¶ 22
(quotation simplified).

¶11 Section 30-3-35.1 states, “The parents and the court may
consider the following increased parent-time schedule as a
minimum when the parties agree or the noncustodial parent can
demonstrate [certain factors] . . . .” Utah Code Ann. § 30-3-35.1(2)
(LexisNexis Supp. 2017) (emphasis added). Assuming, without
deciding, that Lay has demonstrated the existence of those
factors, see id. § 30-3-35.1(2)–(4), we conclude that the district
court was not required to adopt the section 30-3-35.1 parent-time
schedule.

¶12 The Utah Code defines the meaning of the words “may”
and “shall.” “‘May’ means that an action is authorized or
permissive.” Utah Code Ann. § 68-3-12(1)(g) (LexisNexis 2016);
see also May, Black’s Law Dictionary (10th ed. 2014) (“[t]o be
permitted to” and “[t]o be a possibility”); In re A.J.B., 2017 UT
App 237, ¶ 25, 414 P.3d 552 (indicating that the “use of the term
‘may’ means that a court is certainly authorized” to take a
particular action but “is not necessarily required to do so”). The
word “shall,” on the other hand, means “an action is required or
mandatory.” Utah Code Ann. § 68-3-12(1)(j); see also John Kuhni
& Sons Inc. v. Labor Comm’n, 2018 UT App 6, ¶ 10, 414 P.3d 952
(noting that “shall” is “a mandatory word requiring strict
compliance with its directive” (quotation simplified)); Diener v.
Diener, 2004 UT App 314, ¶ 12, 98 P.3d 1178 (“Ordinarily, the use
of the word ‘shall’ in a statute creates a mandatory condition,
eliminating any discretion on the part of the courts.”).

¶13 Here, section 30-3-35.1’s use of the term “may,”
rather than “shall,” indicates that, provided the parties agree
or the noncustodial parent makes the required showing, the
district court is authorized, but not required, to
consider the optional increased parent-time schedule as

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described in the statute. Stated differently, the noncustodial
parent’s demonstration of the enumerated factors gives the
court the discretion to consider the increased parent-
time schedule, but there is no language in the statute
making the court’s consideration of that schedule—much less its
adoption—mandatory. Indeed,the statute describes the parent-
time schedule at issue as the “optional parent-time schedule.”
Utah Code Ann. § 30-3-35.1(1) (emphasis added). The
use of the term “optional” indicates that the increased parent-
time schedule involves a choice on the part of the district court
and is “not compulsory.” See Optional, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/optional (last
visited June 26, 2018) (“involving an option” and “not
compulsory”); Option, Merriam-Webster.com, https://www.
merriam-webster.com/dictionary/option (last visited June 26,
2018) (“an act of choosing,” “the power or right to choose,” or
“something that may be chosen”).

¶14 Notwithstanding the statute’s plain language, Lay
effectively invites us to construe the phrase “may consider” as
“shall adopt.” Lay argues that treating section 30-3-35.1 “as
merely permissive instead of required would lead to absurd
results and would render [the statute], in its entirety,
superfluous.” In other words, he suggests that unless we
interpret section 30-3-35.1 as mandating the adoption of the
increased parent-time schedule under certain circumstances, the
statute is rendered superfluous and therefore absurd. We are not
persuaded.

¶15 The absurdity doctrine applies “to reform unambiguous
statutory language where applying the plain language leads to
results so overwhelmingly absurd no rational legislator could
have intended them.” 2 Utley v. Mill Man Steel, Inc., 2015 UT 75,

2. In arguing that our interpretation would lead to absurd
results, Lay also invokes the absurd consequences canon, an
interpretive canon that shares some similarity with the absurdity
(continued…)

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¶ 46, 357 P.3d 992 (Durrant, C.J., concurring). Invocation of this
doctrine has been described as “a drastic step” and as “strong
medicine, not to be administered lightly.” Id. ¶ 48 (quotation
simplified). That is because the text of an unambiguous statute
“is almost always irrefutable evidence of the legislature’s intent,
even if it leads to results we regard as impractical or ill-advised.”
Id. With this standard in mind, we readily conclude that the
doctrine has no application here.

¶16 Section 30-3-35.1 is not rendered absurd by interpreting it
as reserving in the district court the discretion of whether to
consider ordering the increased parent-time. After all, district
courts are generally afforded “broad discretion” to establish
parent-time. See Tobler v. Tobler, 2014 UT App 239, ¶ 24, 337 P.3d
296 (“The district court has the discretion to establish parent-
time in the best interests of the children.”); Utah Code Ann.
§ 30-3-34(1) (LexisNexis Supp. 2017) (“If the parties are unable to
agree on a parent-time schedule, the court may establish a
parent-time schedule consistent with the best interests of the
child.”). And it is not absurd to conclude that the legislature
intended to provide the district court with some guidance and
tools for adopting increased parent-time schedules without
eliminating the court’s discretion to apply those tools in the best
interest of the child. At the very least, the statute provides

(…continued)
doctrine but that applies under different circumstances. See Utley
v. Mill Man Steel, Inc., 2015 UT 75, ¶¶ 46–47, 357 P.3d 992
(Durrant, C.J., concurring) (drawing distinctions between the
absurd consequences canon and the absurdity doctrine). “In
applying the absurd consequences canon, we merely resolve an
ambiguity by choosing the reading that avoids absurd results
when statutory language plausibly presents us with two
alternative readings.” Id. ¶ 47 (quotation simplified). We have no
occasion to consider this canon here because Lay has not
persuaded us that the word “may” in section 30-3-35.1 is
ambiguous.

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legislatively established standards for the district court to apply
in evaluating whether increased parent-time is warranted, and it
eliminates the need for a district court to independently fashion
an increased parent-time schedule by providing a detailed
schedule for the court to modify or adopt. We cannot conclude
that this operation—even if its reach is more permissive than
mandatory—is “so overwhelmingly absurd that no rational
legislator could have intended the statute to operate in such a
manner.” See Utley, 2015 UT 75, ¶ 48.

¶17 For these reasons, we conclude that the plain language of
section 30-3-35.1 gives the court discretion to consider, under
appropriate circumstances, ordering parent-time above the
minimum set in section 30-3-35, and we reject Lay’s contention
that the district court here was required to grant him increased
parent-time pursuant to section 30-3-35.1.

II. The District Court’s Parent-Time Order

¶18 Lay next challenges the district court’s decisions granting
him “only alternating Friday and Saturday overnights” and
denying him midweek parent-time during the school year. He
raises two contentions in support. First, he contends that the
court exceeded its discretion. Second, he contends that the court
made legally inadequate findings. Because we agree with Lay on
his second contention, we do not reach the first. 3

¶19 The district court’s factual findings “are adequate only if
they are sufficiently detailed and include enough subsidiary
facts to disclose the steps by which the ultimate conclusion on

3. Lay also contends that, regardless of whether the court abused
its discretion or the findings are inadequate, the court’s decision
was not in Child’s best interest. As with Lay’s alternative
argument about Child’s best interest in connection with section
30-3-35.1, supra note 1, our consideration of Child’s best interest
at this juncture is premature.

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Lay v. Lay

each factual issue was reached.” Rayner v. Rayner, 2013 UT App
269, ¶ 11, 316 P.3d 455 (quotation simplified); see also Shuman v.
Shuman, 2017 UT App 192, ¶ 5, 406 P.3d 258 (“A trial court’s
factual findings must be sufficiently detailed and include
enough subsidiary facts to clearly show the evidence upon
which they are grounded.” (quotation simplified)). Put another
way, findings “are adequate when they contain sufficient detail
to permit appellate review to ensure that the district court’s
discretionary determination was rationally based.” Fish v. Fish,
2016 UT App 125, ¶ 22, 379 P.3d 882. Indeed, the district court’s
obligation to render adequate findings “facilitates meaningful
appellate review and ensures the parties are informed of the
[district] court’s reasoning.” Shuman, 2017 UT App 192, ¶ 5.

¶20 In reviewing the legal adequacy of the district court’s
findings, we also bear in mind that the Utah Code requires that,
in ordering parent-time, the court “shall enter the reasons
underlying its order.” Utah Code Ann. § 30-3-34(3) (LexisNexis
Supp. 2017) (“The court shall enter the reasons underlying its
order for parent-time that: (a) incorporates a parent-time
schedule provided in Section 30-3-35 . . . ; or (b) provides more
or less parent-time than a parent-time schedule provided in
Section 30-3-35 . . . .”).

¶21 Lay contends that the district court’s factual findings were
legally inadequate to support its decisions regarding both the
weekend overnights schedule and his request for midweek
parent-time. With regard to the weekend overnights schedule,
Lay asserts that the district court’s findings did not adequately
explain its decision to grant him parent-time “only alternating
Friday and Saturday overnights during the school year but not
Sunday overnights,” when Child “had been thriving under a
schedule with Sunday overnights.” Lay concedes that “the
district court mentioned the accommodation of school
attendance as a justification,” but he asserts that “there are no
findings about a need to better accommodate [Child’s] school
attendance.” With regard to midweek parent-time, Lay contends
that “the district court’s decision not to allow the midweek visits

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Lay v. Lay

required by the minimum parent time statute is supported by
inadequate findings.” To buttress this position, Lay asserts that
the “statutory minimum schedule requires midweek visits,” that
he had regularly exercised his midweek parent-time by spending
lunchtime with Child, and that “this case [does] not fall under
any of the exceptions to the statutory minimum schedule.”

¶22 The district court made the following findings regarding
the parent-time schedules that the parties had followed since
their divorce. The parties’ divorce decree was entered when
Child was under the age of three and provided that, in a
two-week period, Lay would have Child for six overnights and
that Gustafson would have eight overnights. In 2011, after Child
finished kindergarten, the parties informally agreed to change
the parent-time schedule such that Lay would not have midweek
parent-time and instead would have parent-time with Child only
every other weekend from Friday night through Monday
morning, amounting to three overnights during every two-week
period. This informal agreement was driven by Lay’s work
schedule and by Child’s need for stability given that “the
number of transfers between parents [had] interfered with [her]
well being.” With rare exceptions, the parties lived by this
parent-time schedule, even during the summers, for five years.
The parties cooperated well under that agreement until shortly
before the parties petitioned to modify the decree.

¶23 The court also made findings related to Child’s schooling.
Child attends a school roughly equidistant from Lay’s and
Gustafson’s residences. Gustafson takes Child to school and has
a work schedule that “allows greater flexibility as to getting
[Child] to and from school than does [Lay].” In 2014 and 2015,
Lay regularly would have lunch with Child during recess. At
school, Child has shown that she is “doing better” and “getting
more used to transition[s].”

¶24 As for Child’s overall well-being, the district court found
that she is “well adjusted and happy and doing well, and doing
better as she gets older.” Although she “still demands lots of

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structure and routine,” Child’s behavior is “getting better,” and
Child responds better to changes when she is given advance
notice and explanation. On the whole, Child is “making good
progress,” “getting more resilient,” and is “more content now.”

¶25 Ultimately, the district court modified the parent-time
schedule. Although the parties had operated under a schedule
for the past five years where Lay had parent-time every other
weekend, Friday through Sunday nights, the court ordered that,
for the non-school months, Lay’s parent-time would remain as
under the divorce decree, that is, Lay would have six overnights
and Gustafson would have eight overnights in each two-week
period. During the school year, however, the court ordered that
Lay would have only two overnights on alternating weekends.
The court explained that Lay’s parent-time every other weekend
“should be Friday and Saturday nights only, not Sunday nights,
to better accommodate school attendance, with a return of
[Child] by [Lay] to [Gustafson] on Sunday evening at 7:00 pm
during school months.”

¶26 We agree with Lay that the district court’s findings were
not sufficiently detailed “to disclose the steps” the court took to
reach its ultimate conclusion to adjust Lay’s alternating weekend
parent-time from three overnights to two overnights. See Rayner
v. Rayner, 2013 UT App 269, ¶ 11, 316 P.3d 455 (quotation
simplified); see also Maak v. IHC Health Services, Inc., 2016 UT App
73, ¶¶ 45–46, 372 P.3d 64 (explaining that without insight into
the district court’s reasoning and what record evidence
supported its decision, the reviewing court was “unable to
ascertain whether the district court’s [decision] follows logically
from, and is supported by, the evidence” (quotation simplified)).
The court found that under the working parent-time schedule,
which included Sunday overnights, Child was “well adjusted”
and “doing well.” Yet the court ordered a change to that
schedule on the basis of “better accommodat[ing] [Child’s]
school attendance.” And the court’s factual findings do not
explain why having Lay return Child to Gustafson on Sunday
evenings, as opposed to dropping Child off at school on Monday

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mornings, would “better accommodate [Child’s] school
attendance.” The court did find that Gustafson drives Child to
school and generally has more flexibility than Lay to take Child
to and from school. But the court did not say, for instance, that
Lay is incapable of taking Child to school on Monday or that his
Sunday overnights under the existing schedule contributed to
school absences or tardiness on Child’s part.

¶27 We thus conclude that the district court’s factual findings
fail to support its conclusion that Sunday overnights with Lay
did not accommodate Child’s school attendance at least as well
as Sunday overnights with Gustafson. Moreover, at oral
argument before this court, Gustafson could not identify any
specific findings or record evidence that could support the
court’s decision that Child spending Sunday nights with
Gustafson better accommodated Child’s school attendance; thus,
we cannot conclude that the court impliedly relied on any
particular evidence to so conclude. 4 See generally Fish v. Fish, 2016
UT App 125, ¶ 22, 379 P.3d 882 (“Unstated findings can be
implied if it is reasonable to assume that the trial court actually
considered the controverted evidence and necessarily made a
finding to resolve the controversy, but simply failed to record
the factual determination it made.” (quotation simplified)). The
district court specifically found that Child was “doing well”
under the existing parent-time schedule, so therefore its decision
to change Lay’s alternating weekend parent-time from three to
two overnights is inconsistent with that finding and requires
explanation so that we can ensure on review that that decision
was rationally based. See id.; see also In re S.T., 928 P.2d 393, 398
(Utah Ct. App. 1996) (stating that the trial court’s findings must
include enough detail “to clearly show the evidence upon which
they are grounded”).

4. In fact, Gustafson told this court that she would “almost
welcome a remand” for the district court to elucidate its
thinking.

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¶28 Our conclusion in this regard also leads us to agree with
Lay that the district court’s findings were inadequate to disclose
the steps by which the court reached its ultimate conclusion that
Lay was not entitled to midweek parent-time during the school
year. It is possible that the district court so concluded because
Lay did not have midweek parent-time under the existing
schedule or because the court did not want to increase the
number of Child’s transfers in light of her need for stability. But
the court did not provide any such explanation. And given that
the court ordered a change to the existing schedule for Sunday
nights—a change that is inconsistent with its finding that Child
was “doing well” under that schedule—we are unable to simply
infer the court’s reasoning or its evidentiary basis for denying
midweek parent-time. Accordingly, we conclude that the district
court’s decisions to adjust Lay’s weekend parent-time and to
deny him midweek parent-time are not supported by adequate
findings.

CONCLUSION

¶29 The district court did not err in declining to adopt Lay’s
proposed interpretation of the statute providing for an optional
parent-time schedule. The district court’s factual findings,
however, do not contain sufficient detail for us to ensure that its
discretionary determination regarding the parent-time schedule
was rationally based. Accordingly, we remand this case with the
instruction that the district court make additional findings with
respect to (1) whether Lay’s weekend parent-time during the
school year should include a Sunday overnight and (2) whether
Lay should have midweek parent-time during the school year.

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