Lobendahn v. Lobendahn

2023 UT App 137

THE UTAH COURT OF APPEALS

MARCUS JAMES LOBENDAHN,
Appellant and Cross-appellee,
v.
LEEYEN MOEVAI LOBENDAHN,
Appellee and Cross-appellant.

Opinion
No. 20210278-CA
Filed November 16, 2023

Fourth District Court, Provo Department
The Honorable Thomas Low
No. 164400262

Luke A. Shaw and Jill L. Coil,
Attorneys for Appellant
Julie J. Nelson, Daniel Ybarra, and Alexandra
Mareschal, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN M. HARRIS and RYAN D. TENNEY
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Marcus James Lobendahn (Father) appeals the district
court’s denial of his petition to modify the parties’ divorce decree.
LeeYen Moevai Lobendahn (Mother) 1 also appeals the court’s
order denying her request for attorney fees incurred in
responding to Father’s petition to modify. We affirm the district
court’s order in all respects.

1. Mother has remarried and has adopted her husband’s surname,
Sahim.
Lobendahn v. Lobendahn

BACKGROUND

¶2 The parties were married in 2008 in Hawaii. Following
their marriage, the parties moved to Utah and had two children—
a daughter and a son (Son). In May 2015, Father moved to New
Jersey for employment purposes, and Mother and the children
followed a little while later. Shortly after Mother arrived in New
Jersey, Father asked Mother for a divorce and filed for a divorce
in Utah. Mother suggested that the children live with Father in the
marital apartment while she rented a separate place and cared for
the children while Father was at work. Father declined the offer
and advised Mother that she and the children should move back
to Utah, which they did. The parties’ divorce was finalized
through a stipulated decree in Utah in early 2016 while Father still
lived in New Jersey. The decree awarded the parties joint legal
and physical custody of the children and Father parent-time
under section 30-3-37 of the Utah Code with additional time
during certain breaks.

¶3 Father moved back to Utah in the fall of 2016, and Mother
allowed him parent-time every other weekend, similar to the
schedule provided in section 30-3-35 of the Utah Code. In 2017,
Father filed a petition to modify based on his relocation, and the
parties resolved the petition through a stipulation modifying the
decree of divorce. Based upon their agreement, Father would
exercise parent-time as provided in section 30-3-35 until he moved
within fifteen miles of Mother’s residence in Utah County, at
which time his parent-time would increase pursuant to the
schedule described in section 30-3-35.1, with some modifications.
Father did not move within fifteen miles of Mother and the
children at that time but remarried and moved to his wife’s
residence in Salt Lake County. Even so, Mother allowed Father to
exercise increased parent-time.

¶4 Mother sent a letter to Father in March 2018, notifying him
of her intent to remarry and relocate with the children to

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Washington state. A few weeks later, Father notified Mother that
he had signed a lease for an apartment in an area within fifteen
miles of her residence in Utah County. Father continued to reside
with his wife in Salt Lake County but would stay at the apartment
when exercising parent-time with the children. Thereafter, Father
filed a motion to restrain Mother from relocating, which the court
denied, concluding that Mother’s move to Washington was in the
best interest of the children. Mother remarried and moved to
Washington in the summer of 2018.

¶5 While the parties were litigating Mother’s relocation,
Father filed a second petition to modify. Father argued that he
should be awarded primary physical custody of the children, who
should live with him in Utah, and that Mother should be awarded
parent-time under section 30-3-37 of the Utah Code. Father’s
petition alleged that Mother had not been entirely truthful in
describing the reasons for her relocation, that the children
struggled in school upon moving to Washington, that Mother had
been evasive about Father’s proposal to relocate to Washington to
live close to the children, that Mother interfered with his parent-
time since she had relocated, that Mother had been uncooperative
in planning the children’s travel, and that Mother interfered with
Father’s participation in Son’s baptism. Father also requested that
a custody evaluator be appointed to make recommendations
about what custodial arrangement would be in the best interest of
the children, and the court granted that request.

¶6 The court appointed a custody evaluator (Evaluator), who
began her evaluation in July and completed her work in
November 2019. Evaluator interviewed the parties, their
respective spouses, and Son, and she observed the children with
both parents in their homes. At the time Evaluator conducted her
evaluation, the children had lived in Washington with Mother for
approximately one year. Evaluator delivered her
recommendations to the parties at a settlement conference in
April 2020, and completed her report five months later. Evaluator

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recommended that the parties continue to share joint physical and
legal custody but that the children should relocate back to Utah.
Evaluator recommended that if Mother did not return with the
children, Father should have primary physical custody with
statutory visitation for Mother. Later, at the trial on Father’s
petition to modify, Evaluator advised that in her opinion—while
both parents shared a close, positive relationship with the
children and Mother had been the children’s primary caretaker
for their entire lives—Mother did not truly support the children’s
relationship with Father and the broad benefit of having access to
Father outweighed the potential risk that a second relocation
adjustment would be hard for the children. And she
acknowledged that her relocation recommendation was based on
her understanding that if the court ordered the children to
relocate back to Utah, Mother would move back to Utah as well.
Evaluator also conceded that by the time of trial, the children had
lived in Washington for two-and-a-half years and that the delay
between her evaluation and the trial could be significant. She
agreed that “some of the facts that [she] relied on to make [her]
determinations are now out of date.” She agreed that the children
had probably changed and matured emotionally, psychologically,
socially, and physically and that she had not had any contact with
the children in more than a year and a half.

¶7 The court held a trial in March 2021 on Father’s petition to
modify. Father’s petition was based on his contention that
Mother’s move to Washington was selfishly motivated and
harmed the children and that Mother had failed to facilitate
Father’s role in the children’s lives and had excluded him from
decision-making. Father testified about particular instances that,
in his view, demonstrated Mother’s inability to co-parent and
unwillingness to facilitate his role in the children’s lives. These
included:

• Son’s difficulty in school after the relocation and
resultant disputes between the parties about whether to

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move him to a different classroom or have him tested
for autism;

• Son’s baptism in July 2019 and Father’s role in that
event;

• Mother’s apparent unwillingness to commit to living in
Washington for the long term when Father was
contemplating relocating there to be closer to the
children;

• Father’s participation in obtaining passports for the
children so they could visit Mother’s ill father in Tahiti
and Father’s contention that he did not intend to use
these circumstances to coerce Mother into moving back
to Utah; and

• Mother’s alleged interference with Father’s visitation in
February 2019.

¶8 Mother testified to her version of the events and issues
raised in Father’s testimony. Specifically, Mother testified:

• That her decision to move from Utah was not to get
herself and the children away from Father;

• That she addressed Son’s difficulties in school
following the relocation and how she wanted to have
him tested for autism as recommended by his teacher
but Father did not want the school to do any testing;

• That Son’s school difficulties had mostly been resolved
by the time of trial and that his recent less-than-stellar
report card had more to do with remote learning than
continued transition issues;

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• That given Son’s his age and stage of development, she
believed it was appropriate to let him choose who
would baptize him and where the baptism would take
place and that Mother never interfered with Father’s
wish to perform the baptism;

• That Father caused a big scene before the baptism
ceremony, which Son overheard, and Father demanded
that he perform both the baptism and the confirmation;

• That when Father considered moving to Washington
and asked Mother to commit to remaining in the area,
Mother did not think it was wise to promise Father that
she would live in Washington forever because of the
constant litigation she had already experienced over
custody;

• That the conflict that arose when Mother tried to obtain
passports for the children in 2018 to visit her father in
Tahiti after he had been diagnosed with cancer required
her to file an order to show cause in December 2019 to
compel Father to complete an affidavit and sign the
passport applications, which he eventually did, but the
children’s passports did not arrive in time for them to
travel to Tahiti before Mother’s father passed away; and

• That Father does a good job keeping up with and
supporting the children’s interests.

¶9 At the conclusion of the trial, Mother asked the court to
award her attorney fees.

¶10 In its written ruling issued after the trial, the court
addressed Mother’s alleged failure to facilitate Father’s role in the
children’s lives. Regarding Son’s baptism, the court found that
Father had adduced no evidence demonstrating that Mother had

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broached the subject of baptism with Son in an attempt to create
contention, or that Son had suffered any psychological harm from
Mother’s actions. The court found, however, that the evidence
admitted “demonstrates poor judgment on Father’s part,” that the
only evidence of conflict surrounding the baptism was created by
Father himself, and that the “only harm [Son] suffered was having
to overhear Father yelling at [Son’s] bishop . . . inside the closed
bishop’s office.”

¶11 Regarding the circumstances surrounding obtaining the
children’s passports, the court was extremely critical of Father’s
actions. Among other things, it found that Father’s actions were
“senselessly cruel” and “among the most reprobate [the] court
[had] encountered in a domestic relations case.” It faulted Father
for using “the imminent death of a grandparent as a bargaining
chip” and found that his behavior “demonstrates that his control
over the children’s welfare must be reduced.”

¶12 The court also addressed Mother’s move to Washington,
finding that the move did not cause the children harm or interfere
with the parties’ ability to co-parent. Specifically, the court
determined that both parents had chosen to live in places that did
not prioritize proximity to the other parent—Mother moving to
Washington to remarry and attend school after living in Utah for
more than three years and Father remaining in New Jersey while
Mother and the children returned to Utah and then moving to Salt
Lake County with his wife rather than moving to a place within
fifteen miles of the children (until Mother indicated she would be
relocating). Moreover, the court noted that although Father is
“untethered,” in that he is employed for a company that allows
him to work from home and he could live and work anywhere, he
is unwilling to move unless Mother commits to remain in
Washington, which she had not done because she eventually
wants to work as a pharmacist and may need to move for that
career. The court found that Father’s decision to remain in Utah

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despite his ability to move reflects his choice not to live close to
the children.

¶13 As far as the children’s best interest in staying in their
current placement, the court found that Mother’s spouse has an
extensive family network with whom the children have grown
close and share a Pacific Islander heritage. Besides a strong family
connection, the children also have close friends in the area, which
the court found to be good for the children. And due in part to the
length of time spent in Washington, the court found that
“[o]verall, the children’s social network is stronger in
Washington” than in Utah. The court also determined that no
evidence supported Father’s assertion that the move to
Washington caused Son to have behavioral issues at school. If
anything, Father’s refusal to allow Son to be tested for autism or
to allow him to change classrooms when he started having trouble
has potentially caused continuing suffering for Son and created
stalemates between the parents that Father chose to address in the
courts. Father’s proclivity for litigation, which he can afford and
which the court found bordered on harassment, caused harm to
the children, created unpredictability, and demonstrated less-
responsive parenting.

¶14 The court found that both Mother and Father have capacity
to parent and to co-parent and have excellent parenting skills. But
the court determined that Mother “exhibits greater respect of
Father’s role than Father does of Mother’s.” Specifically, the court
found that “[w]hen the children ask Mother a question on which
Father should be consulted, she tells them ‘I’ll talk to your dad
about that and we’ll decide together.’” The court recognized that
the children’s bond with Father is very strong, but it agreed with
Evaluator that “the children are more bonded with Mother in light
of being under her primary care for their entire lifetimes.”

¶15 The court analyzed the custody factors found in section 30-
3-10(2) of the Utah Code and made the following determinations:

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• Both parents demonstrate an appropriate
understanding of, and responsiveness to, the
developmental needs of the children, but Mother’s
openness to the advice and assistance of professionals
exceeds Father’s.

• Both parents have an excellent capacity to parent and
co-parent and endorse the other’s role in the presence
of the children. Except for Mother’s use of
inappropriate terms in some of her written
communication (which the court believed was on the
mend), “both parents appropriately communicate with
the other, encourage the sharing of love and affection,
and exhibit a willingness to allow frequent and
continuous contact with the other parent.” However,
Mother exhibits a greater respect for Father’s role in the
children’s lives than Father does for Mother’s.

• Father has relinquished both custody and parent-time
in the past.

• Both parents desire custody and time with the children.
Mother has been the primary caretaker and Father has
made it a priority to maintain good contact with the
children. But “Mother’s commitment to the care and
custody of the children exceeds Father’s.”

• Both parents have always cared for the children
financially and are financially responsible, but “Mother
has expressed more constant and less evasive financial
responsibility than Father.”

• The children enjoy a strong social and familial network
in Washington with their stepfather and his side of the
family and have close friends there. The children also
enjoy the close proximity of their stepmother and her

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family and their maternal aunt and grandmother in
Utah. Overall, the children’s social network is stronger
in Washington.

• The children are more bonded to Mother because she
has always been their primary caretaker.

• The children have both benefitted and suffered from
the sharing of parental responsibilities. Father is very
involved and committed to his role. “But Father’s veto-
power over decisions regarding the children’s health,
education, and welfare” has prevented Son from being
tested for autism, prevented Father from honoring
Son’s preferences at his baptism, and “prevented the
children from traveling to see their dying grandfather
in Tahiti.”

• The parents are generally able to cooperate with each
other and make decisions jointly but struggle to reach
agreement on significant decisions in the children’s best
interest and these frequent stalemates harm the
children. Specifically, the court noted that the parents
could not communicate effectively to make Son’s
baptism conflict-free and they could not agree on how
to address Son’s difficulties in school after the
relocation or obtain passports for the children. “Given
her less affluent status, Mother usually surrenders in
the face of disagreement because she cannot afford to
take the matter further. Father, however, has
substantial funds at his disposal, and has exhibited the
ability and willingness to press his concerns in the
courts.”

• Both parents ensure that the children are protected
from conflict, except for Father’s refusal to complete the
passport paperwork to allow the children to travel to

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Tahiti, which harmed the children, and allowing Son to
overhear the conflict over his baptism.

¶16 After weighing the evidence and the statutory factors, the
court concluded that granting Father’s petition and relocating the
children back to Utah would not be in their best interest. The court
found that the children are doing well in their current
circumstances and that they are primarily bonded with Mother as
their primary caretaker. “Father has presented no evidence that
removing primary custody from Mother would be in the
children’s best interests. . . . [Rather,] doing so would be harmful
to the children.” The court determined that “the children are
happy in Washington, that the parties have successfully mitigated
the effects of distance on parent-time, that Father continues to
enjoy a healthy relationship and strong bond with the children,
and that the current custody arrangement is working well.” The
court noted that the trial evidence “establish[ed] that [Father] and
Mother have been extraordinarily successful in managing the
geographical distance between them,” “that the children do not
grasp the gravity of the distance,” and that “all evidence indicates
that the children are happy, thriving, and well-adjusted in the
current circumstances.” The court found that none of the statutory
custody factors favored a change in custody.

¶17 Accordingly, the court denied Father’s petition to modify
custody and his request that he be awarded primary custody if
Mother did not relocate to Utah. The court ordered joint legal
custody to continue but awarded Mother final decision-making
authority as to the children’s health, education, and welfare. It
also ordered that Mother “should be designated as the parent
with the sole legal right to determine the residence of the
children.” The court denied Mother’s request for an award of
attorney fees because (1) she presented no evidence of her need
for such an award and (2) even though Mother had ultimately
prevailed, Father’s petition was not frivolous because it had been
supported by Evaluator’s recommendation for a change in

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Lobendahn v. Lobendahn

custody. But the court then explained that it chose to disregard
the custody evaluation because it was “outdated and fail[ed] to
adequately address the evidence presented at trial.”

ISSUES AND STANDARDS OF REVIEW

¶18 Father now appeals the court’s denial of his petition to
modify, including its decision to reject Evaluator’s
recommendation. “We review custody determinations under an
abuse of discretion standard, giving the district court broad
discretion to make custody awards.” Hinds v. Hinds-Holm, 2022
UT App 13, ¶ 26, 505 P.3d 1136 (quotation simplified). We will not
disturb a district court’s findings of fact unless they are clearly
erroneous. See Robertson v. Robertson, 2016 UT App 55, ¶ 5, 370
P.3d 569. And “[a]lthough a district court is not bound to accept a
custody evaluator’s recommendation, the court is expected to
articulate some reason for rejecting that recommendation.” R.B. v.
L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137.

¶19 Mother cross-appeals and challenges the court’s denial of
her request for attorney fees. We review a district court’s attorney
fee determination for an abuse of discretion. Jensen v. Jensen, 2009
UT App 1, ¶ 7, 203 P.3d 1020.

ANALYSIS

¶20 Father argues the district court erred in denying his
petition to modify. Father’s challenge comprises two parts. First,
Father takes issue with the court’s weighing of the evidence and
its associated factual findings and conclusions. Second, Father
challenges the court’s decision to reject Evaluator’s
recommendation. We address each of Father’s arguments in turn.
Lastly, we address Mother’s cross-appeal concerning the denial of
her request for attorney fees.

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Lobendahn v. Lobendahn

I. The Evidence Supports the District Court’s Determination to
Deny the Petition to Modify

¶21 Father’s first argument on appeal is that the district court
ignored the evidence presented at trial that supported Father’s
position that it was in the best interest of the children to move
them back to Utah and that he should be awarded primary
custody if Mother did not relocate with them. Father also argues
that the court viewed the evidence presented from a biased
perspective. In the context of determining custody, the district
court is to analyze the best interest of the children through the
custody factors outlined in section 30-3-10(2) of the Utah Code.
Generally, it is within the court’s discretion to consider each
custody factor and accord each factor the appropriate weight. See
Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. The
“court’s discretion stems from the reality that in some cases the
court must choose one custodian from two excellent parents, and
its proximity to the evidence places it in a more advantaged
position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209,
1214 (Utah 1996). Thus, a custody determination “may frequently
and of necessity require a choice between good and better.” Hogge
v. Hogge, 649 P.2d 51, 55 (Utah 1982).

¶22 While the district court is accorded discretion in weighing
the statutory custody factors, “it must be guided at all times by
the best interests of the child,” see Tucker, 910 P.2d at 1214, and it
“must set forth written findings of fact and conclusions of law
which specify the reasons for its custody decision,” see id. at 1215.
“Whenever custody is contested, the district court must provide
the necessary supporting factual findings that link the evidence
presented at trial to the child’s best interest and the ability of each
parent to meet the child’s needs.” K.P.S. v. E.J.P., 2018 UT App 5,
¶ 27, 414 P.3d 933.

¶23 Moreover, the factual findings of the district court “will not
be disturbed unless they are clearly erroneous” by being “in

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conflict with the clear weight of the evidence.” Kimball v. Kimball,
2009 UT App 233, ¶ 14, 217 P.3d 733 (quotation simplified). And
“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 (quotation simplified). Rather, “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, generally
through marshaling the evidence.” Taft v. Taft, 2016 UT App 135,
¶ 19, 379 P.3d 890 (quotation simplified). 2 Thus, a party
challenging the sufficiency of the evidence to support a custody
decision will almost certainly fail to carry its burden of persuasion
on appeal if it fails to marshal. See State v. Nielsen, 2014 UT 10, ¶ 42,
326 P.3d 645. In addition, a district court “may make findings,
credibility determinations, or other assessments without detailing
its justification for finding particular evidence more credible or
persuasive than other evidence supporting a different outcome.”
Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation
simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

2. As this court stated in Kimball v. Kimball, 2009 UT App 233, 217
P.3d 733:
After all, it is the [district] court’s singularly
important mission to consider and weigh all the
conflicting evidence and find the facts. No matter
what contrary facts might have been found from all
the evidence, our deference to the [district] court’s
pre-eminent role as fact-finder requires us to take
the findings of fact as our starting point, unless
particular findings have been shown, in the course
of an appellant’s meeting the marshaling
requirement, to lack legally adequate evidentiary
support.
Id. ¶ 20 n.5.

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¶24 On appeal, Father asserts that the district court ignored
evidence that was presented to Evaluator and to the court at trial.
But on appeal, Father has not wrestled with the evidence that
supports the court’s conclusion that most of the custody factors
favor Mother, and he has made no attempt to marshal the
evidence that supports the court’s factual findings. Father “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 id. ¶ 9 (quotation
simplified). We address Father’s specific challenges to the court’s
conclusions below.

A. Father’s relinquishment of parent-time with the children
by voluntarily choosing not to live close to them

¶25 Father complains that the district court misunderstood and
ignored the evidence when it determined that Father had made
decisions that minimized his parent-time. But Father has not
addressed the evidence the court chose to credit nor
demonstrated how that evidence was insufficient for the court to
conclude that Father had not prioritized living close to the
children to maximize his parent-time. That is, the court found the
following evidence convincing:

• While the family lived in New Jersey in 2015, and after
Father announced he wanted a divorce, Mother offered
to move out of their apartment so the children could
remain with Father. Father declined this offer and
advised Mother to return to Utah with the children.

• Father remained in New Jersey for over a year before
moving back to Utah.

• After the parties mediated a settlement in August 2017
wherein Father could exercise more parent-time if he

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moved within fifteen miles of Mother’s residence, he
did not do so. Instead, Father remarried in 2018 and
moved to his wife’s residence in Salt Lake County
(Mother’s residence was in Utah County).

• Father rented an apartment within fifteen miles of
Mother’s residence in Utah County only after she had
announced her intention to relocate to Washington.

• Father is employed by a company that allows him to
work from home and his wife does not work outside
the home, so Father’s employment does not necessarily
tie him to Utah. Father has even shopped for houses in
Washington but requires a commitment from Mother
that she will remain there long term before he will
move.

• Evaluator opined that despite Father’s valid
professional and financial motives for staying in New
Jersey and then in Utah, Father failed to capitalize on
the opportunity for more frequent parent-time by living
close to the children.

¶26 Father appears to fault the court for not considering
dispositive his testimony that he sought and exercised more than
the minimum parent-time once he returned to Utah in 2016.
Father asserts that this evidence disproves the court’s
determination that Father had not prioritized his time with the
children. But “Father [doing] what was within his rights . . . to
exercise the expanded parent-time” was not persuasive to the
court given the evidence listed above. And Father has not
challenged any of the factual findings that support the court’s
conclusion that he did not make choices for his living situation to
be closer to the children. Father simply challenges how the court
considered the evidence that supports his position.

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¶27 The existence of conflicting evidence in the record is not
sufficient to set aside a district court’s findings. See Nebeker v.
Orton, 2019 UT App 23, ¶ 16, 438 P.3d 1053. “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 (quotation simplified). The
district court’s “mission” is “to consider and weigh all the
conflicting evidence and find the facts.” Id. Thus, even though
“contrary facts might have been found from all the evidence,” this
court defers to the district court’s “pre-eminent role as fact-
finder,” and we “take the findings of fact as our starting point,
unless particular findings have been shown . . . to lack legally
adequate evidentiary support.” Id. Because Father has not directly
challenged any of the court’s subsidiary findings supporting its
determination that Father made decisions that minimized, rather
than maximized, his parent-time, we will not reweigh the
evidence.

B. The circumstances surrounding Son’s baptism

¶28 Father complains that the issue surrounding Son’s baptism
“is an issue of legal custody . . . [and] should [have been]
discussed between the parents before decisions [were] made.”
Father asserts that the district court committed legal error when it
failed to rule that a decision about who will perform a child’s
baptism is a major parenting decision that should not be left up to
a child. Father also takes issue with the court crediting Mother’s
testimony about the dispute that occurred before the baptism—
and not Father’s testimony that he did not agree with the accounts
that he was yelling or losing his cool—to determine that the
circumstances of the event demonstrated poor judgment on
Father’s part and that Father’s actions caused Son harm.

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¶29 On the facts of this case, we cannot fault the district court
for its determination that who performs the various parts of a
child’s religious ceremonies within the shared religious tradition
of both parents (as opposed to whether the ceremonies will be
performed at all) is not a major parenting decision requiring the
agreement of both parents. Father cites no authority for the
proposition that the decision about who performs a religious
ceremony is equivalent to decisions concerning a child’s medical
care, school attendance, or overall religious practice. Nor has
Father challenged any of the factual findings that support the
court’s conclusion that Father had failed to demonstrate that
Mother’s decision to allow Son to have “input regarding his own
baptism was an unhealthy or unwise parenting decision.” Thus,
Father cannot show the court erred in considering this decision to
be something other than a major parenting decision. And while
we understand that Father is unhappy with the court’s conclusion
that Father’s behavior before Son’s baptism showed poor
judgment on his part rather than ineffective co-parenting on
Mother’s part, the evidence in the record supports the court’s
conclusion that Mother’s parenting regarding the baptism was
not problematic, and we will not reweigh the evidence.

C. The circumstances surrounding having Son tested for
autism

¶30 Father next takes issue with the court’s findings about
whether the children have benefitted from the parties’ sharing of
parenting responsibilities and about the abilities “of the parents
to give first priority to the welfare of the [children] and reach
shared decisions in the [children’s] best interest.” See Utah Code
§ 30-3-10.2(2)(b). Among other things, in determining that Mother
should be designated the final decision-maker as to the children’s
health, education, and welfare, the court found that Father
exhibited an “injudicious use of his veto power over decisions
relating to the children’s health” and had “evidenced [a] tendency
to act contrary to the children’s interests and to use those interests

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as leverage against Mother.” But Father’s complaint that the
evidence demonstrated that he suggested they not rush into
testing Son for autism rather than that he objected to the testing
does not diminish the court’s determination that “Father’s veto-
power over decisions regarding the children’s health, education,
and welfare [] prevented [Son] from being tested for autism at a
time when educational professionals believed the test would be
helpful to address his needs.” Thus, we agree with Mother that
“[e]ven if the court should have used the word ‘delayed’ rather
than ‘prevented’” in its finding, Father has not shown how the
court’s decision to award Mother final decision-making authority
was an abuse of discretion or legal error.

D. The circumstances surrounding obtaining the children’s
passports

¶31 Father next challenges the court’s view of the
circumstances surrounding Mother’s attempts to obtain passports
for the children in time to visit her cancer-stricken father in Tahiti
in 2019. Father argues that the court’s pointed and direct
comments about this incident are overly aggressive and suggest
that this evidence was the “ultimate basis for [the court’s] ultimate
conclusion.” Father asserts that he did not interfere with the
passport applications or attempt to condition his facilitation of the
passports upon Mother’s promise to return to Utah and suggests
that Mother was at fault for not obtaining the passports in time.
But, once again, on appeal, Father selectively highlights the
evidence he submitted at trial, asserts that the evidence supports
a different outcome, and criticizes the court for not crediting his
testimony rather than Mother’s. It is not this court’s “purview to
engage in a reweighing of the evidence.” Shuman v. Shuman, 2017
UT App 192, ¶ 9, 406 P.3d 258 (quotation simplified), cert. denied,
412 P.3d 1257 (Utah 2018). In fact, when “a foundation for the
court’s decision exists in the evidence, [we] may not engage in a
reweighing of the evidence.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d
435. On appeal, this court will look to whether the district court’s

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decision is supported by the evidence and in cases where the
appellant has “merely point[ed] to evidence that might have
supported findings more favorable to them” rather than
“identify[ing] flaws in the evidence relied on by the [district] court
that rendered” the court’s findings clearly erroneous, we will not
reverse. Shuman, 2017 UT App 192, ¶ 8 (quotation simplified).
Because the court’s decision is supported by the record and Father
has identified no fatal flaws in the evidence upon which the court
relied, we will not reweigh the evidence.

E. The reasons and representations given for Mother’s
relocation to Washington

¶32 Father next challenges the court’s view of Mother’s
relocation. Father appears to attack Mother’s honesty and
credibility by asserting that the reasons she gave for her move to
Washington were not true. But Father did not appeal the court’s
order approving Mother’s relocation, and by not directly
challenging the district court’s findings about Mother’s move,
Father has failed to persuade us that the court’s determination
that “Mother’s move to Washington was not contrary to the
children’s interests” was an abuse of discretion or legal error since
it “is undisputed that the children are thriving and happy there”.

F. The district court’s custody factor findings

¶33 Father challenges the court’s determination that evaluation
of the statutory custody factors favored denying his petition to
modify and awarding Mother more decision-making authority.
Specifically, Father argues that the court’s analysis of the custody
factors is not supported by the evidence with regard to (1) the
parents’ commitment to the care and custody of the children,
(2) not disrupting a custody arrangement where the children are
happy and well-adjusted in their current circumstances, (3) the
respect each parent affords the other parent’s role, (4) the parents’

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ability to make decisions jointly, and (5) whether it was better to
remain in Washington versus returning to Utah.

¶34 But Father does not tie his argument to a particular custody
factor or explain how the court’s findings in these areas are
critically important to the overall custody determination. Nor
does Father explain how the court’s findings on these factors are
against the clear weight of the evidence. “Generally, it is within
the [district] court’s discretion to determine . . . where a particular
factor falls within the spectrum of relative importance and to
accord each factor its appropriate weight.” Hudema v. Carpenter,
1999 UT App 290, ¶ 26, 989 P.2d 491. “While the district court is
accorded discretion in weighing these factors, it must be guided
at all times by the best interests of the child.” Hinds v. Hinds-Holm,
2022 UT App 13, ¶ 30, 505 P.3d 1136 (quotation simplified).

¶35 Father’s argument that the court disregarded the evidence
that supports his preferred evaluation of the statutory custody
factors is not persuasive. It is not this court’s role to reweigh the
evidence to see if we would reach a different conclusion from that
of the district court. Father has not demonstrated that the court’s
evaluation of the custody factors lacks evidentiary support or that
any finding regarding each factor is against the clear weight of the
evidence. Given this, we cannot say that the court abused its
discretion or committed legal error in concluding that “none of
the factors favor a change in custody” or that “[t]he critically
important factors—bonding and continuity of placement—
strongly favor leaving primary custody with Mother.”

¶36 In sum, Father has not directly challenged any of the
court’s specific findings supporting the determinations listed
above. Indeed, he simply highlights evidence he claims the
district court ignored. Without a direct challenge to any specific
finding, we consider the district court’s findings as established
and will not reweigh the evidence.

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II. The District Court Did Not Abuse Its Discretion When It
Rejected Evaluator’s Recommendation

¶37 Father contends that the district court erred in rejecting the
recommendations and testimony of Evaluator. “Courts are not
bound to accept the testimony of an expert and are free to judge
the expert testimony as to its credibility and its persuasive
influence in light of all of the other evidence in the case.” Barrani
v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation
simplified). “This is because . . . the fact-finder is in the best
position to judge the credibility of witnesses and is free to
disbelieve their testimony . . . even if that testimony comes from
an expert witness.” Woodward v. Lafranca, 2016 UT App 141, ¶ 13,
381 P.3d 1125 (quotation simplified), cert. denied, 384 P.3d 570
(Utah 2016). These principles apply to a court’s assessment of the
opinions offered by a custody evaluator. Indeed, a “district court
is not bound to accept a custody evaluator’s recommendation,”
but if a court chooses to reject the evaluator’s opinion, it “is
expected to articulate some reason for” doing so. See R.B. v. L.B.,
2014 UT App 270, ¶ 18, 339 P.3d 137. In this case, while the court
could have perhaps more fully explained its reasons for rejecting
Evaluator’s recommendations, in our view the court had
sufficient reasons for doing so and adequately explained itself.

¶38 Father first contends that the district court erroneously
rejected Evaluator’s recommendations because the court had
unreasonable expectations of Evaluator, that it was incumbent on
the court to solicit further information from Evaluator through
questioning at trial if the court thought her report was insufficient,
and that the court should have accepted Evaluator’s
recommendation without question because the court did not
contest her qualifications and admitted her report into evidence
without objection. But the record does not support Father’s
complaints, and he does not support his argument with legal
citation. The court invited Evaluator to augment her report at trial
by “putt[ing] in context or explain[ing] or add[ing] flesh to the

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bones of the report,” and the court dialogued at length with
Evaluator during direct questioning and cross-examination.
Father’s complaint that the court discouraged additional
testimony or additional explanation from Evaluator because it
stated during her examination that “[n]ow that I have received the
report, if she’s just going to read it, maybe there’s more effective
ways for her to spend her time” is not compelling, especially
because Father’s counsel agreed to “expedite the process a bit” by
then focusing on Evaluator’s recommendations. Thus, Father
does not persuade us that the court abused its discretion or
committed legal error in choosing not to ask Evaluator further
questions.

¶39 Next, Father takes issue with the court’s decision to reject
Evaluator’s recommendation because it was “outdated” at the
time of trial.3 But Father fails to acknowledge that while all the
statutory custody factors are equally important, “[a]t the critically
important end of the spectrum, when [a] child is thriving, happy,

3. In addition to rejecting Evaluator’s report for being outdated,
the court rejected the report because it “fail[ed] to adequately
address the evidence presented at trial.” Specifically, the court
noted that the report “mentions but glosses over Father’s sending
the children away from New Jersey, choosing several times
thereafter not to live near the children (including now),
preventing them from traveling to Tahiti, and declining to engage
[Son] regarding his baptism.” Father takes issue with the court’s
reasoning on each point, arguing that the court “did not agree
with [Evaluator’s] expert view and analysis of the evidence.” But
his argument is limited to merely explaining his view of why each
of these events happened and why Evaluator did not find them
important. Father does not show that the court’s view was
unsupported by the evidence. And regardless of these stated
reasons, the court’s decision to reject the report because it was
outdated was entirely proper.

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and well-adjusted, lies continuity of placement.” Hudema v.
Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Utah law requires
courts to “give substantial weight to the existing joint legal . . .
custody order when the child is thriving, happy, and well-
adjusted.” Utah Code § 30-3-10.4(2)(c). And here, the court relied
heavily on continuity of placement as the basis for rejecting
Evaluator’s report. The court found that the evidence presented
at trial was “virtually unanimous” in establishing that the
children were “happy, well-adjusted, and thriving under [their]
current arrangement” and it rejected Evaluator’s contention that
relocating the children back to Utah would not be that big of a
deal because “[w]e don’t have a child . . . moving into a different
developmental phase or a child with specific developmental
needs.” Because the court heard the evidence on both sides and it
explained why it was rejecting certain evidence, the court did not
abuse its discretion or commit legal error. Thus, we see no
infirmity in the court’s determination that Evaluator’s report was
outdated by the time of trial.

¶40 We are, of course, sensitive to the emotional undercurrents
giving rise to Father’s challenges on appeal. This appears to have
been a very difficult case for both parties—both of whom love and
care for their children. And we acknowledge the district court’s
determination that both “parents are well suited to parent the
children [who] are surrounded by an unusual amount of love on
both sides of the family. . . . All children everywhere deserve to be
loved as much as these children are.” But ultimately, the fact that
Father disagrees with the court’s decision to deny his petition to
modify does not render the district court’s findings inadequate or
unsupported by the evidence, nor does it require an outright grant
of custody in his favor. See Shuman v. Shuman, 2017 UT App 192,
¶ 10, 406 P.3d 258, cert. denied, 412 P.3d 1257 (Utah 2018).

¶41 In sum, Father has failed to meaningfully address the
evidence supporting the district court’s findings or persuasively
demonstrate that those findings are against the clear weight of the

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evidence or legally erroneous. We therefore affirm the district
court’s denial of Father’s petition to modify custody and its
associated adjustment to the parties’ legal custody arrangement.

III. Mother’s Attorney Fees Request

¶42 Finally, we address Mother’s challenge to the district
court’s denial of her request for attorney fees incurred in
responding to Father’s petition to modify. Mother asserts
entitlement to fees under two different statutes, but we reject both
of her arguments.

¶43 First, Mother claims that the court should have awarded
her fees pursuant to a statute authorizing a court to award fees in
cases where the “action” was “filed or answered frivolously and
in a manner designed to harass the other party.” See Utah Code
§ 30-3-10.4(5). The court determined that whether the litigation
was frivolous or filed with the intent to harass was “a very close
call” but that Evaluator’s change-of-custody recommendation
provided Father with at least some basis to file his petition. We
agree. The district court has discretion to determine whether an
action was filed frivolously or with an intent to harass, and we
will not substitute our judgment for that of the district court
unless the action it takes is so flagrantly unjust as to constitute an
abuse of discretion. See Wall v. Wall, 700 P.2d 1124, 1125 (Utah
1985). We discern no abuse of discretion in the court’s
determination not to award fees under section 30-3-10.4(5) of the
Utah Code.

¶44 Second, Mother claims that the court should have awarded
her fees under a different statute, one that authorizes courts to
order one party to pay fees to the other in order “to enable the
other party to prosecute or defend the action.” See Utah Code § 30-
3-3(1). The court denied Mother’s request for fees under this
statute based on its determination that Mother did not produce
evidence of her financial need. When reviewing requests for

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attorney fees in divorce proceedings, “both the decision to award
attorney fees and the amount of such fees are within the [district]
court’s sound discretion.” Stonehocker v. Stonehocker, 2008 UT App
11, ¶ 10, 176 P.3d 476 (quotation simplified). However, the party
to be awarded attorney fees under this statute has the burden to
prove (1) that the payee spouse has a financial need, (2) that the
payor spouse has the ability to pay, and (3) that the fees requested
are reasonable. See Dahl v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276.

¶45 Here, Mother argues that the district court erred in
concluding that an award of fees was not warranted when it
determined that “Mother did not adduce any evidence of her need
for an award of attorney’s fees under section 30-3-3(1).” Mother
contends that there was evidence before the court to demonstrate
her need and Father’s ability to pay. Specifically, Mother points to
the parties’ stipulated order from 2017 that showed the parties’
incomes and the custody evaluation that reported the parties’
incomes in 2020. But Mother did not point to this evidence in
connection with her fee request, and we do not think it is
incumbent on a district court to comb through the record to find
evidence of a party’s need. Rather, the party to be awarded fees
has the burden to submit that evidence or at least point the court
to that evidence and ask that the court utilize that evidence to
determine need.

¶46 Accordingly, we affirm the district court’s conclusion that
fees were not warranted in this case.

CONCLUSION

¶47 We conclude that the evidence supports the district court’s
findings and conclusions that relocating the children back to Utah
would not be in the children’s best interest and supports the
denial of Father’s petition to modify. We further conclude that the

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district court did not abuse its discretion in denying Mother’s
request for attorney fees. Affirmed.

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