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Vaughan v. Romander, 2015 UT App 244

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Case Summary

David Vaughan (Father) and Emily Romander (Mother) are the biological parents of a minor child. Father petitioned for adjudication of custody, parent-time, and child support, and the trial court initially entered temporary orders awarding Mother primary physical custody. During the litigation, a court-appointed child-custody evaluator (the Evaluator) twice evaluated the family, first recommending that Mother retain primary physical custody and later reversing course to recommend that Father be awarded primary physical custody. After a bench trial, the trial court awarded primary physical custody to Father, adopted a parent-time schedule for Mother that departed in part from the Evaluator’s recommendation, and limited the parties’ right of first refusal to provide child care to periods of overnight absence. Mother appealed, challenging the denial of her pretrial motion to continue, the custody award, the parent-time schedule, and the right-of-first-refusal ruling. The Court of Appeals affirmed on every issue, though it split 2-1 on the parent-time schedule.

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Facts

Custody Evaluation and Trial Preparation

  • The Evaluator conducted an initial custody evaluation from July 2012 to January 2013 and, at a February 2013 settlement conference, indicated she would recommend that Mother retain primary physical custody.
  • The parties could not settle, and the case was set for trial; in July 2013 they stipulated that the Evaluator would complete and submit an updated custody evaluation at least fourteen days before trial.
  • The stipulation followed Father’s request for an updated evaluation based on his concerns about Mother’s housing and employment stability, her physical care of the child, and issues relating to her suspended driver license.
  • The Evaluator submitted her final, updated evaluation on September 5, 2013 — exactly fourteen days before the September 19, 2013 trial date — this time recommending that Father be awarded primary physical custody, with Mother’s parent-time to include alternating weekends (Friday to Monday) and an alternating Monday/Thursday weekday overnight to minimize gaps in Mother’s parent-time given the child’s young age.

Motion to Continue

  • Mother moved to continue the trial, arguing that the timing of the Evaluator’s revised, adverse recommendation left her little or no time to respond.
  • The trial court denied the motion on the morning of trial, finding that the parties had adequate opportunity to prepare, that they had stipulated to the updated evaluation, and that the Evaluator had timely delivered it under the terms of that stipulation.

Trial Court’s Custody Determination

  • After trial, the court awarded primary physical custody to Father, finding, among other things, that Mother had spent very little one-on-one time with the child in play and learning, that Mother had restricted Father’s parent-time to the statutory minimum after the temporary orders expired, that the trial court had concerns about Mother’s financial stability, and that the child had no designated bedroom and few age-appropriate toys or educational materials at Mother’s home.
  • The Evaluator testified that on two visits to Mother’s home she saw no age-appropriate toys, that the child did not appear to have a designated sleeping area or his own bed or crib, and that she received conflicting accounts from Mother and Mother’s other children about where the child slept.
  • On appeal, Mother challenged each of these findings but, according to the court, directed it to little or no record evidence undermining the findings and did not meaningfully address the evidence that supported them.

Parent-Time Order

  • The trial court awarded Mother parent-time on alternating weekends (Friday to Sunday) and a fixed weekly overnight from Tuesday at 4:00 p.m. to Wednesday at 10:00 a.m., which the lead opinion found to exceed the statutory minimum parent-time schedule for a child between eighteen months and three years old.
  • The trial court departed from the Evaluator’s recommendation of an alternating Monday/Thursday weekday overnight (intended to minimize gaps in Mother’s parent-time) in favor of a single fixed weeknight, without stating its reasons for the departure.

Right of First Refusal

  • The trial court adopted the Evaluator’s recommendation that neither parent’s right of first refusal to provide child care would apply unless the parent requiring care needed it overnight, or, separately, for a period longer than twenty-four hours.
  • The trial court based this limitation on the Evaluator’s testimony that Mother’s relocation had increased travel time between the parties’ residences, that their work schedules and the distance between homes made it impractical for either parent to assist the other with child care, and that a right of first refusal covering smaller blocks of time tends to create conflict and mutual over-monitoring between parents.

Issues of the Case

Mother raises four issues on appeal; the court separately addresses Father’s request for attorney fees incurred on appeal.

  • Issue 1: Motion to Continue
  • Issue 2: Award of Primary Physical Custody
  • Issue 3: Parent-Time Schedule
  • Issue 4: Right of First Refusal
  • Issue 5: Attorney Fees on Appeal (Father’s Request)

The Court of Appeals affirmed the trial court in its entirety on all four of Mother’s issues and denied Father’s request for attorney fees on appeal. The parent-time issue (Issue 3) was decided by a 2-1 majority: Judge Orme’s separate opinion, joined by Judge Davis, affirmed the trial court’s parent-time schedule without remand, while Judge Christiansen’s lead opinion on that issue represents a dissent that would have vacated the parent-time order and remanded for findings.

  • Civil Procedure — Continuance

    1. Motion to Continue

    Claim on Appeal: Mother argued the trial court abused its discretion by denying her motion to continue the trial, because the Evaluator’s revised, unfavorable recommendation was delivered only fourteen days before trial and left her insufficient time to respond.

    Holding: — Affirmed. Mother stipulated to receiving the final evaluation fourteen days before trial, nothing in the stipulation was conditioned on the recommendation remaining unchanged, and Father’s earlier request for an updated evaluation put Mother on notice the recommendation could change. The trial court reasonably held Mother to the terms of her own stipulation.

    Statutory Authority: No Utah Code section was cited by the court in resolving this issue; the standard governing continuances is drawn from case law.

    Standard of Review:

    • Abuse of discretion — applies to the trial court’s ruling on a motion to continue trial.

    Controlling Cases:

    • Clarke v. Clarke, 2012 UT App 328, ¶ 19, 292 P.3d 76 (a continuance ruling is reversed only if “clearly unreasonable and arbitrary”).

    Why It Matters: The holding underscores that a party who stipulates to a notice period for an updated custody evaluation will be held to that bargain even if the evaluation’s substance later proves unfavorable; practitioners should not stipulate to evaluation timelines without accounting for the risk that the recommendation may change.

  • Custody & Parent-Time — Physical Custody

    1. Award of Primary Physical Custody

    Claim on Appeal: Mother argued that several of the trial court’s factual findings supporting the award of primary physical custody to Father — regarding her one-on-one time with the child, her support of Father’s relationship with the child, her financial stability, and the child’s sleeping arrangements and toys at her home — were unsupported by the evidence.

    Holding: — Affirmed. Mother failed to marshal the evidence supporting each challenged finding and explain why it was outweighed by competing evidence; as to several findings she identified no record evidence at all, and as to others (e.g., the Evaluator’s testimony about the child’s sleeping arrangements) she did not address the evidence the trial court actually relied on.

    Statutory Authority: No Utah Code section was cited by the court in resolving this issue; the standard for reviewing custody findings is drawn from case law.

    Standard of Review:

    • Abuse of discretion — applies to the trial court’s ultimate award of physical custody.
    • Clear error — applies to the trial court’s underlying factual findings.

    Controlling Cases:

    • Cagatay v. Erturk, 2013 UT App 82, ¶ 2, 302 P.3d 137 (custody awards reviewed for abuse of discretion; underlying findings for clear error).
    • Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (a finding is clearly erroneous only if against the clear weight of the evidence or the court has a definite and firm conviction a mistake was made).
    • Reeve & Assocs., Inc. v. Tanner, 2015 UT App 166, ¶ 34 (an appellant must candidly recount all evidence supporting a finding and explain why it is outweighed).

    Why It Matters: This issue is a marshaling-burden case study: Mother lost not because the underlying facts were necessarily favorable to Father, but because she did not engage with the evidence supporting the trial court’s findings. It is a useful citation for opposing any custody appeal that offers only the appellant’s own contrary testimony.

  • Custody & Parent-Time — Parent-Time

    1. Parent-Time Schedule

    Claim on Appeal: Mother argued the trial court’s parent-time schedule was not in the child’s best interests because the court departed from the Evaluator’s recommended alternating weekday overnight (Monday/Thursday) in favor of a single fixed weeknight (Tuesday) without articulating any reason for rejecting the Evaluator’s recommendation.

    Holding: — Affirmed, by a 2-1 majority. Judge Orme’s separate opinion, joined by Judge Davis, held that the trial court’s rationale for preferring a fixed weeknight over an alternating one — predictability and scheduling ease — was self-evident from the record and that remanding for the trial court to state the obvious was not a good use of judicial or party resources. Judge Christiansen’s lead opinion on this issue is a dissent: she would have vacated the parent-time order and remanded for findings explaining the departure from the Evaluator’s recommendation.

    Statutory Authority: Utah Code Ann. § 30-3-34(2) (LexisNexis 2013) (advisory guidelines and statutory parent-time schedules presumed to be in the child’s best interests); Utah Code Ann. § 30-3-35.5(3)(e) (LexisNexis 2013) (statutory minimum parent-time schedule for a child between eighteen months and three years old); Utah Code Ann. § 30-3-32(2)(a) (LexisNexis 2013) (trial court’s discretion to establish parent-time in the child’s best interests).

    Standard of Review:

    • Abuse of discretion — applies to the trial court’s parent-time order.

    Controlling Cases:

    • Tobler v. Tobler, 2014 UT App 239, ¶¶ 12, 24, 337 P.3d 296 (trial court has discretion to establish parent-time in the child’s best interests; reviewed for abuse of discretion).
    • B. v. L.B., 2014 UT App 270, ¶¶ 17-18, 339 P.3d 137 (a trial court rejecting a custody evaluator’s recommendation is expected to articulate some reason; best interests of the child is the “overarching principle”).
    • Tuckey v. Tuckey, 649 P.2d 88, 90-91 (Utah 1982) (setting aside a custody order and remanding where the trial court gave no explanation for rejecting a social worker’s recommendation).
    • Peterson v. Peterson, 818 P.2d 1305, 1308 (Utah Ct. App. 1991) (cited in dissent for prioritizing the child’s welfare over the parents’ scheduling convenience).
    • Elmer v. Elmer, 776 P.2d 599, 604 (Utah 1989) (best interests of the child as the overarching principle in custody and parent-time determinations).

    Why It Matters: This is the doctrinally significant issue in the opinion: it shows appellate judges disagreeing over how literally to apply Tuckey’s requirement that a trial court articulate reasons for rejecting an evaluator’s recommendation. The majority’s willingness to affirm based on an inferred, “obvious” rationale — rather than express findings — narrows Tuckey in practice for comparatively minor scheduling details, while the dissent shows the argument available to a future appellant seeking a stricter application.

  • Custody & Parent-Time — Right of First Refusal

    1. Right of First Refusal

    Claim on Appeal: Mother argued the trial court erred by limiting the parties’ right of first refusal to provide child care to situations requiring overnight surrogate care, contending this effectively eliminated her opportunity to care for the child and contradicted Utah’s presumption favoring parental care over surrogate care.

    Holding: — Affirmed. Because Mother was not entitled to a right of first refusal at all, it was within the trial court’s discretion to limit the right as it did; the limitation was further supported by evidence of the parties’ travel distance, work schedules, and the Evaluator’s testimony that a right of first refusal for smaller blocks of time creates conflict and over-monitoring between parents.

    Statutory Authority: Utah Code Ann. § 30-3-33(15) (LexisNexis 2013) (advisory guideline that parental care is presumed better than surrogate care, and courts should encourage the noncustodial parent to provide child care when willing and able).

    Standard of Review:

    • Abuse of discretion — the trial court’s decision will not be disturbed unless “so flagrantly unjust as to constitute an abuse of [that] discretion.”

    Controlling Cases:

    • Marchand v. Marchand, 2006 UT App 429, ¶ 4, 147 P.3d 538 (broad discretion standard for child-care and custody-related awards).
    • Wight v. Wight, 2011 UT App 424, ¶ 22, 268 P.3d 861 (§ 30-3-33(15) does not entitle a willing and able noncustodial parent to provide day care; it merely encourages the trial court to allow it).

    Why It Matters: The decision confirms that Utah’s parental-care presumption under § 30-3-33(15) is aspirational rather than a source of an enforceable entitlement, giving trial courts considerable latitude to restrict or decline a right of first refusal based on practical concerns like travel distance and interparental conflict.

  • Attorney Fees — Appellate Fees

    1. Attorney Fees on Appeal (Father’s Request)

    Claim on Appeal: Father requested an award of his attorney fees incurred on appeal, asserting that Mother’s appeal had no basis in fact or law and was therefore frivolous.

    Holding: — Denied. The court held Father had not shown this was an “egregious” case warranting fee-shifting sanctions, particularly because the court’s own decision included a dissenting opinion in Mother’s favor on the parent-time issue.

    Statutory Authority: Utah R. App. P. 33(a)-(b) (authorizing an award of “just damages,” including attorney fees, for a frivolous appeal, and defining a frivolous appeal as one not grounded in fact, not warranted by existing law, or not based on a good-faith argument to extend, modify, or reverse existing law).

    Standard of Review:

    • Not separately stated; the court applies Rule 33’s “egregious case” standard directly.

    Controlling Cases:

    • Redd v. Hill, 2013 UT 35, ¶ 28, 304 P.3d 861 (frivolous-appeal sanctions are a serious matter reserved for egregious cases — those obviously without merit, with no reasonable likelihood of success, that delay a proper judgment).

    Why It Matters: The presence of a genuine, reasoned dissent on one of the appellant’s issues is itself strong evidence that an appeal was not frivolous, making this a useful citation for any appellee-side fee request where the panel was divided.

Rules of Evidence

Utah Codes

Rules of Civil Procedure

Utah Code of Judicial Administration

Utah Rules of Appellate Procedure

Utah Rules of Professional Conduct

Case Cited

  • Clarke v. Clarke, 2012 UT App 328, 292 P.3d 76 (standard of review for denial of a motion to continue trial)
  • Cagatay v. Erturk, 2013 UT App 82, 302 P.3d 137 (standard of review for physical custody awards and underlying findings)
  • Tobler v. Tobler, 2014 UT App 239, 337 P.3d 296 (trial court’s discretion to set parent-time in the child’s best interests; standard of review)
  • Marchand v. Marchand, 2006 UT App 429, 147 P.3d 538 (broad discretion standard for child-custody-related orders, including right of first refusal)
  • Kimball v. Kimball, 2009 UT App 233, 217 P.3d 733 (clearly-erroneous standard for a trial court’s factual findings)
  • Reeve & Assocs., Inc. v. Tanner, 2015 UT App 166 (appellant’s burden to marshal the evidence supporting a challenged finding)
  • B. v. L.B., 2014 UT App 270, 339 P.3d 137 (trial court must articulate reasons for rejecting a custody evaluator’s recommendation; best interests as overarching principle)
  • Tuckey v. Tuckey, 649 P.2d 88 (Utah 1982) (remand required where trial court gives no explanation for rejecting an evaluator’s or social worker’s recommendation)
  • Peterson v. Peterson, 818 P.2d 1305 (Utah Ct. App. 1991) (cited in dissent for prioritizing the child’s welfare over parents’ scheduling convenience)
  • Elmer v. Elmer, 776 P.2d 599 (Utah 1989) (best interests of the child as the overarching principle in custody and parent-time)
  • Wight v. Wight, 2011 UT App 424, 268 P.3d 861 (the parental-care presumption in § 30-3-33(15) does not entitle a parent to a right of first refusal)
  • Redd v. Hill, 2013 UT 35, 304 P.3d 861 (high threshold for awarding attorney fees for a frivolous appeal)

Litigation and Appellate Strategy

Reversal Predictor

Case characteristics that, under this opinion’s framework, most likely produce reversal or remand:

  • A trial court’s order departs from a custody evaluator’s specific, reasoned recommendation without any stated rationale, and the departure is not readily inferable from the record.
  • The appellant marshals the evidence supporting each challenged factual finding and affirmatively explains why it is outweighed by contrary evidence, rather than relying solely on her own testimony.
  • The appellant identifies a stipulation or notice period that was not honored by the opposing party or the court, as opposed to one that was honored on its own terms.
  • The right-of-first-refusal or parent-time limitation lacks any evidentiary basis (e.g., no testimony regarding travel distance, conflict, or scheduling practicality).

Mandatory Factor Checklist

Statutory and doctrinal factors this opinion requires (or strongly encourages) a court to address explicitly:

  • When departing from a custody evaluator’s recommendation, some articulated reason for the departure (Tuckey).
  • Whether the ordered parent-time schedule meets or exceeds the statutory minimum for the child’s age under the applicable parent-time-schedule statute.
  • An evidentiary basis (e.g., travel distance, work schedules, potential for conflict) when limiting or declining a right of first refusal.
  • Whether the terms of any stipulation governing evaluation deadlines or trial preparation were actually honored.

Signal Cluster (High-Risk Appeal Profile)

Combination of factors that, together, most increase the viability of an appeal in a similar custody/parent-time posture:

  • A late-breaking, reversed custody-evaluator recommendation delivered close to trial, combined with a denied continuance and a departure from that same recommendation’s specific scheduling terms without explanation.
  • Multiple challenged factual findings paired with an appellate brief that does not marshal the record evidence for each one — this combination is fatal on appeal even if the departure-from-recommendation argument might otherwise have force.

Strategy Insight

Frame a parent-time or custody appeal as a legal-error/articulation challenge (did the trial court explain its departure from an evaluator’s recommendation?) rather than, or in addition to, a pure evidentiary-sufficiency challenge. The articulation theory nearly succeeded here (drawing a full dissent) precisely because it does not require re-arguing the underlying facts — it targets a procedural gap in the trial court’s reasoning that the appellate court cannot fill in the appellant’s favor without inferring a rationale, as the majority did here somewhat controversially.

Teaching Value

This opinion is a strong teaching case for the marshaling requirement in fact-based custody appeals (Part II) alongside the tension between deference to trial courts and the Tuckey articulation rule in parent-time appeals (Part III). Reading the lead opinion and Judge Orme’s separate opinion together illustrates how two reasonable judges can reach different conclusions from the identical record on whether a trial court’s unstated rationale is truly “obvious.”

Insights

Utah-Only Jurisprudence

The opinion relies exclusively on Utah authority. Every case cited is either a Utah Court of Appeals or Utah Supreme Court decision, and every statute cited is a Utah Code provision; no out-of-state or federal authority is discussed. This reflects the highly codified, statute-driven nature of Utah parent-time law.

Doctrinal Anchors (Utah Supreme Court)

  • Tuckey v. Tuckey, 649 P.2d 88 (Utah 1982): established that a trial court must articulate some reason for rejecting a custody evaluator’s or social worker’s recommendation; anchors Judge Christiansen’s dissent on the parent-time issue.
  • Elmer v. Elmer, 776 P.2d 599 (Utah 1989): established the best interests of the child as the “overarching principle” governing custody and parent-time; invoked to support a stricter reading of Tuckey.
  • Redd v. Hill, 2013 UT 35, 304 P.3d 861: defines the “egregious case” threshold for awarding attorney fees for a frivolous appeal, which the court applied to deny Father’s fee request.

The Most Important Holding

The most significant holding is the 2-1 disposition of the parent-time issue: a majority of the panel affirmed the trial court’s departure from the Evaluator’s recommended alternating-weekday schedule even though the trial court gave no explicit reason for the departure, because the majority found the trial court’s rationale (predictability and scheduling ease of a fixed weeknight) self-evident from the record. This softens Tuckey’s “articulate some reason” requirement in practice for comparatively minor scheduling deviations, even as the dissent shows the doctrine retains force for a future panel inclined to apply it strictly.

Reversal Based on Legal Error vs. Factual Error

The Court of Appeals affirmed in full; there was no reversal. But the internal split on the parent-time issue shows how close a case can come to reversal on a purely legal/procedural ground — the trial court’s failure to state its reasons for rejecting the Evaluator’s recommendation — wholly apart from any dispute about the underlying facts. Had Judge Christiansen’s view carried a second vote, the parent-time order (though not the custody award itself) would have been vacated and remanded for findings, illustrating that a Tuckey-type articulation problem is a distinct and freestanding basis for appellate relief.

Practitioner Takeaways

  • Trial Lawyers: When a trial court departs from a custody evaluator’s specific recommendation, request that the court state its reasons on the record at the time of ruling. Doing so removes the very uncertainty that produced the 2-1 split here and forecloses an “obvious rationale” argument for the opposing party on appeal.
  • Trial Lawyers: Before stipulating to a deadline for an updated custody evaluation, build in a contingency (e.g., a right to request a short continuance) in case the evaluator’s recommendation changes materially close to trial.
  • Appellate Lawyers: On any factual-sufficiency challenge, marshal the evidence supporting each challenged finding before arguing it is against the clear weight of the evidence; Reeve & Associates and this opinion show that failing to do so is dispositive regardless of the finding’s merits.
  • Appellate Lawyers: On a Tuckey-based articulation challenge, argue for or against remand by addressing whether the trial court’s unstated rationale is genuinely “obvious” from the record, since that inference — not the bare absence of findings — determined the outcome here.
  • Custody Evaluators / GALs: A specific, reasoned recommendation (e.g., alternating weekdays to minimize gaps in parent-time for a young child) creates a stronger record for a Tuckey challenge than a general preference, even though it did not carry the day in this case.

Majority Opinion

2015 UT App 244

THE UTAH COURT OF APPEALS

DAVID VAUGHAN, Appellee, v. EMILY ROMANDER, Appellant.

Opinion No. 20131091-CA Filed September 17, 2015 Second District Court, Farmington Department

The Honorable Michael G. Allphin No. 114701785

John M. Webster and Kenji J. Kawa, Attorneys for Appellant Cassie J. Medura and Jarrod H. Jennings, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in which JUDGES GREGORY K. ORME and JAMES Z. DAVIS concurred.

JUDGE GREGORY K. ORME authored a separate opinion in which JUDGE JAMES Z. DAVIS concurred and from which JUDGE MICHELE M. CHRISTIANSEN dissented, with opinion.1 CHRISTIANSEN, Judge:

¶1 This case involves a child-custody dispute between David Vaughan (Father) and Emily Romander (Mother). Father filed a 1. Parts I, II, IV, and V of the lead opinion represent the majority opinion. Part III of the lead opinion, addressing the parent-time schedule, reflects the dissenting opinion of Judge Christiansen. See infra ¶¶ 19–23. Judge Orme’s separate opinion represents the majority decision on that issue. See infra ¶¶ 29–31. Vaughan v. Romander 20131091-CA 2 2015 UT App 244 petition seeking custody of the child, child support, and other related relief. The case proceeded to trial, and the trial court awarded primary physical custody to Father and entered other orders relating to child support and Mother’s parent-time. Mother challenges both the trial court’s refusal to grant her request for a continuance on the first day of trial and various components of the trial court’s ruling. We affirm.

BACKGROUND

¶2 Father and Mother are the biological parents of a minor child. Father filed a petition seeking an adjudication of child custody, parent-time, and child support for the child. The trial court entered temporary orders awarding Mother primary physical custody of the child. As part of the proceedings, a childcustody evaluator (the Evaluator) conducted a custody evaluation from July 2012 to January 2013. At a settlement conference in February 2013, the Evaluator indicated that her recommendation would be for Mother to retain primary physical custody of the child. The parties were unable to reach a settlement, and the matter was set for trial.

¶3 In July 2013, the parties agreed that the Evaluator should update the custody evaluation. The parties stipulated that the Evaluator would complete and submit her final custody evaluation at least fourteen days before trial. The Evaluator submitted her final custody evaluation on September 5, 2013— exactly fourteen days before trial. This time, the Evaluator recommended that Father be awarded primary physical custody of the child. She recommended that Mother’s parent-time consist of alternating weekends from Friday to Monday and a weekday overnight stay alternating between Monday and Thursday to minimize gaps in Mother’s parent-time given the young age of the child. Vaughan v. Romander 20131091-CA 3 2015 UT App 244

¶4 Before trial, Mother moved to continue the trial, arguing that the timing of the Evaluator’s final custody evaluation left her little or no time to respond. The trial court denied Mother’s motion on the morning of trial.

¶5 After the trial, the court entered an order awarding primary physical custody to Father and establishing a parenttime schedule. The court awarded Mother parent-time on alternating weekends from Friday to Sunday and a weekday overnight stay every Tuesday. The trial court also ordered that the parties could each exercise a right of first refusal to provide parental child care rather than surrogate care for overnight periods and periods exceeding twenty-four hours. Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶6 Mother first argues that the trial court abused its discretion in denying her motion to continue the trial. We review a trial court’s decision on a motion to continue for an abuse of discretion. Clarke v. Clarke, 2012 UT App 328, ¶ 19, 292 P.3d 76.

¶7 Mother next argues that the trial court erred in awarding primary physical custody to Father. “We review an award of physical custody for abuse of discretion.” Cagatay v. Erturk, 2013 UT App 82, ¶ 2, 302 P.3d 137. We review the trial court’s underlying factual findings for clear error. Id.

¶8 Mother also challenges the parent-time schedule established by the trial court. “The district court has the discretion to establish parent-time in the best interests of the children.” Tobler v. Tobler, 2014 UT App 239, ¶ 24, 337 P.3d 296. Accordingly, we review the trial court’s parent-time order for an abuse of that discretion. See id. ¶¶ 12, 24. Vaughan v. Romander 20131091-CA 4 2015 UT App 244

¶9 Last, Mother challenges the trial court’s decision to limit the right of first refusal to provide child care in situations when the custodial parent requires surrogate care overnight. The trial court is given broad discretion in making child-custody awards, and we will not disturb the trial court’s decision unless it is “so flagrantly unjust as to constitute an abuse of [that] discretion.” Marchand v. Marchand, 2006 UT App 429, ¶ 4, 147 P.3d 538 (alteration in original) (citation and internal quotation marks omitted).

ANALYSIS I. Motion to Continue

¶10 Mother first argues that the trial court abused its discretion in denying her motion to continue the trial. A trial court has substantial discretion in deciding whether to grant a continuance. Clarke v. Clarke, 2012 UT App 328, ¶ 19, 292 P.3d 76. We will conclude that a trial court has abused that discretion only if the decision to grant or deny a continuance is “clearly unreasonable and arbitrary.” Id. (citation and internal quotation marks omitted).

¶11 At a telephone conference in June 2013, the parties agreed to continue the trial to further pursue settlement and to obtain an updated custody evaluation. The trial was then scheduled for September 19, 2013. In July 2013, the parties stipulated to an updated custody evaluation “to be completed and . . . submitted to the Court and the parties at least fourteen (14) days before trial.” The Evaluator submitted the evaluation to the parties on September 5, 2013, exactly fourteen days before trial. Mother moved to continue the trial, arguing that she needed more time to respond to the Evaluator’s final recommendation. The trial court denied Mother’s motion to continue, ruling that “[t]he parties have had adequate opportunity to prepare for the trial,” “the parties by way of stipulation agreed to allow the updated Vaughan v. Romander 20131091-CA 5 2015 UT App 244 custody evaluation,” and the Evaluator “timely delivered the updated evaluation according to the parties’ agreement.”

¶12 Under these circumstances, we cannot conclude that the trial court abused its discretion in denying Mother’s motion to continue. Mother stipulated to receipt of the final custody evaluation only fourteen days before trial. Nothing in the stipulation conditioned Mother’s agreement on the Evaluator’s recommendation remaining unchanged in her final custody evaluation. Moreover, the parties’ stipulation was filed just over a week after Father had requested an updated custody evaluation on the basis of Father’s concerns over Mother’s “housing and employment stability,” physical care of the child, and issues relating to Mother’s suspended driver license. The trial court therefore could have reasonably concluded that Mother was on notice that the Evaluator’s final custody recommendation might well change. The final custody evaluation was timely delivered within the terms of the parties’ stipulation. Mother therefore received the exact amount of time to respond to the evaluation as she had previously agreed was appropriate. We see no abuse of discretion in the trial court’s decision to hold Mother to the terms of the stipulation and in denying her motion to continue.

II. Award of Primary Physical Custody

¶13 Next, Mother challenges the trial court’s decision to award primary physical custody to Father. She contends that certain of the trial court’s factual findings underpinning that determination are unsupported by the evidence. A trial court’s factual findings are clearly erroneous “only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (citation and internal quotation marks omitted). Vaughan v. Romander 20131091-CA 6 2015 UT App 244

¶14 First, Mother contends that the trial court clearly erred in finding that “in the past [Mother] has spent very little time engaging in one-on-one time with the minor child in play and learning.” However, Mother has directed us to no evidence in the record to establish that the trial court’s finding is against the clear weight of the evidence. The only evidence she has identified that is arguably relevant to this finding is her own testimony that, in the future, she would be able to work from home on a schedule that would allow her to spend more time with the child. But evidence that she will spend more time with the child in the future has no bearing on whether there is evidence, or a lack of evidence, demonstrating that she engaged in one-on-one time with the child in the past. And Mother has not addressed the evidence supporting the trial court’s finding. “Logically, to show that a factual finding is against the clear weight of the evidence, an appellant must candidly recount all of the evidence supporting the finding and explain why it is outweighed by the competing evidence.” Reeve & Assocs., Inc. v. Tanner, 2015 UT App 166, ¶ 34. Mother has therefore failed to meet her burden to demonstrate that the trial court’s finding is clearly erroneous.

¶15 Second, Mother asserts that “[t]he trial court’s concern with [Mother’s] ability to support a relationship between [the child] and [Father] is not supported in fact.” Mother appears to be challenging the trial court’s observation that between the expiration of the temporary custody orders and trial, Mother had restricted Father’s parent-time to the statutory minimum rather than the more generous parent-time allowed by the temporary orders and had otherwise shown an inability to be supportive of Father’s relationship with the child. However, Mother identifies no evidence either in support of or in opposition to the trial court’s findings that would aid our analysis. Instead, she directs us only to her testimony that while she did limit Father’s visitation with the child once the temporary custody order had expired, she did so only upon the advice of her attorney. That Vaughan v. Romander 20131091-CA 7 2015 UT App 244 testimony, however, fails to demonstrate that the trial court’s findings are clearly erroneous.

¶16 Third, Mother challenges the trial court’s “concern over [Mother’s] financial stability.” Mother argues that the trial court “has overlooked [Mother’s] recent actions in pursuing financial stability,” but she identifies no record evidence from which we can evaluate her claim. Mother has therefore failed to demonstrate that the trial court’s findings regarding her financial stability are clearly erroneous.

¶17 Last, Mother challenges the trial court’s findings that the child had “no designated bedroom where he sleeps” and “few specific age appropriate toys and educational materials in [Mother’s] home.” Again, Mother directs us only to her own testimony that the child did have his own bed and “several toys.” Mother does not address the Evaluator’s testimony that “basic things like toys and [an] appropriate place to sleep weren’t provided for [the child]” at Mother’s house. The Evaluator testified that on two different visits to Mother’s house, she did not see any age-appropriate toys for the child. She also testified that it did not appear that the child had a designated sleeping area and did not have his own bed or crib. When the Evaluator inquired, she received conflicting accounts from Mother and Mother’s other children as to where the child slept. Mother has not explained how the trial court’s findings lack evidentiary support in light of the Evaluator’s testimony. She has therefore failed to demonstrate that the trial court’s findings are clearly erroneous.

¶18 Mother has failed to meaningfully address the evidence supporting the trial court’s findings or persuasively demonstrate that those findings are against the clear weight of the evidence. We are therefore not convinced that the trial court’s findings are against the clear weight of the evidence, and we conclude that Vaughan v. Romander 20131091-CA 8 2015 UT App 244 the trial court did not abuse its discretion in awarding primary physical custody of the child to Father.

III. Parent-Time Schedule2

¶19 Next, Mother argues that the parent-time schedule ordered by the trial court is not in the best interests of the child. “[T]he parent-time schedule as provided in [section 30-3-35.5] shall be presumed to be in the best interests of the child.” Utah Code Ann. § 30-3-34(2) (LexisNexis 2013). This presumption can be rebutted only upon a showing by a parent that more or less parent-time should be awarded to the noncustodial parent. Id. Utah Code section 30-3-35.5(3)(e) governs parent-time for a child between eighteen months and three years old and provides for alternating weekends from Friday to Sunday and a weekday evening for three hours. The trial court ordered Mother’s parenttime as alternating weekends from Friday to Sunday and Tuesdays from 4:00 p.m. until Wednesday morning at 10:00 a.m. The trial court’s order therefore allowed Mother more parenttime than the statutory minimum.3 See id.

¶20 Mother argues that the trial court erred in departing from the Evaluator’s recommendation by not alternating her weekday parent-time between Monday and Thursday. Although a trial court is not bound to accept a custody evaluator’s 2. As previously noted, this section of the lead opinion reflects the dissenting view of Judge Christiansen. The majority opinion on the issue presented in this section is contained in Judge Orme’s separate opinion. See infra ¶¶ 29–31. 3. Per the trial court’s order, Mother’s weekend parent-time ends thirty minutes earlier on Sunday than provided by statute but begins two hours earlier on Friday. Additionally, Mother’s weekday parent-time consists of an overnight, whereas the statute only provides for one three-hour weekday evening. Vaughan v. Romander 20131091-CA 9 2015 UT App 244 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. Mother argues that the parent-time schedule adopted by the trial court will result in periods of separation from the child of up to seven days, which the Evaluator testified would be disruptive for the child. The trial court did not address this issue in rejecting the Evaluator’s recommendation to alternate Mother’s weekday parent-time. Rather, the trial court stated that it “declines to fully adopt [the Evaluator’s] proposed schedule,” and gave no explanation or reasoning to support its decision.

¶21 Without specific findings, I believe that this court cannot properly review the trial court’s rejection of the Evaluator’s recommendation. Although the trial court was not bound to accept the evaluation, the trial court indicated no reason for its departure from the Evaluator’s proposed parent-time schedule. See Tuckey v. Tuckey, 649 P.2d 88, 90-91 (Utah 1982) (setting aside an order of custody and remanding the case for further findings to explain “some reason for rejecting [a social worker’s] recommendation” where the trial court had failed to provide any explanation for dismissing the social worker’s custody report).

¶22 I disagree with my colleagues’ assertion that a remand for specific findings on this issue would merely result in the trial court declaring that “the predictability and scheduling ease presented by having a set weeknight outweighs the perceived benefits of alternating weeknights.” Infra ¶ 30. I believe such reasoning fails to prioritize the welfare of the child over the desires of the parents and their schedules. See Peterson v. Peterson, 818 P.2d 1305, 1308 (Utah Ct. App. 1991). While the trial court has the discretion to establish parent-time, see Utah Code Ann. § 30-3-32(2)(a) (LexisNexis 2013), that award of parent-time must be in the best interests of the child, Tobler v. Tobler, 2014 UT App 239, ¶ 24, 337 P.3d 296. Indeed, as this court has noted, it is an “‘overarching principle’” that we should never lose sight of Vaughan v. Romander 20131091-CA 10 2015 UT App 244 the best interests of the child. R.B., 2014 UT App 270, ¶ 17 (quoting Elmer v. Elmer, 776 P.2d 599, 604 (Utah 1989)).

¶23 I conclude that, given the Evaluator’s reasoned explanation for why alternating Mother’s weekday parent-time is in this young child’s best interests, the trial court abused its discretion by rejecting that recommendation without articulating some basis for its decision. See Tuckey, 649 P.2d at 90–91. I would therefore vacate the trial court’s parent-time order and direct the trial court to enter a new parent-time order supported by findings demonstrating that the parent-time schedule is in the child’s best interests.

IV. Right of First Refusal

¶24 Finally, Mother challenges the trial court’s decision to limit the parties’ right of first refusal to provide child care to situations when the child would require surrogate care overnight. 4 Mother argues that the limitation on the right of first 4. Mother contends that the trial court limited her right of first refusal to periods longer than twenty-four hours. This does not appear to be an accurate reading of the trial court’s order. The trial court stated, The Court adopts the recommendation of [the Evaluator] on this issue in that this right should not extend to either party unless the parent requiring child care needs such care overnight. In the event a parent needs childcare for longer than 24 hours, then the other parent should be notified and have the right of first refusal to provide such care before surrogate third party care is required. Thus, the trial court’s order unambiguously states that it adopts the Evaluator’s recommendation of an “overnight” trigger for the right of first refusal. We read the balance of the court’s ruling (continued…) Vaughan v. Romander 20131091-CA 11 2015 UT App 244 refusal “has effectively taken away the opportunity for [Mother] to provide care for her children” and thereby “contradict[ed] a clear presumption under Utah law.”

¶25 Our legislature has enacted a number of advisory guidelines that are “suggested to govern all parent-time arrangements between parents.” Utah Code Ann. § 30-3-33 (LexisNexis 2013). One such guideline states, “Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care. Child care arrangements existing during the marriage are preferred as are child care arrangements with nominal or no charge.” Id. § 30-3-33(15). Yet, while this statute favors parental care, “[t]he statute’s plain language does not entitle the willing and able noncustodial parent to provide day care. It merely suggests that the trial court encourage such an arrangement based on the presumption that parental care is better.” Wight v. Wight, 2011 UT App 424, ¶ 22, 268 P.3d 861 (alteration in original) (citation and internal quotation marks omitted). Because Mother is not entitled to a right of first refusal, it would have been within the trial court’s discretion to have declined to order any right of first refusal at all. Additionally, the court adopted the Evaluator’s recommendation regarding the right of first refusal based on her testimony that Mother’s relocation increased the travel time between the parties. The court found that given both parties’ work schedules and the distance between their residences, “it is not practical for either party to be able to assist the other with child care.” Based on this, we do not agree that the trial court (…continued) on this issue as an additional and separate ruling that the right would also apply when a party is unable to provide care for periods longer than twenty-four hours. Vaughan v. Romander 20131091-CA 12 2015 UT App 244 exceeded its considerable discretion in limiting the right of first refusal to those times when the child would require surrogate care overnight.

¶26 Mother also appears to argue that the trial court’s selection of an overnight absence to trigger the right of first refusal is arbitrary or unreasonable. She contends that “[t]here appears to be little or no reason that the trial court has effectively eliminated [Mother’s] right of first refusal.” The Evaluator recommended allowing a right of first refusal only for overnight absences, and testified that a right of first refusal for “smaller blocks of time ends up being a point of conflict and the parties become overly monitoring of one another.” Thus, there appears to be an evidentiary basis for the trial court’s decision to limit the right of first refusal to times when the child would need surrogate care overnight. We therefore conclude that the trial court did not abuse its discretion in ordering the right of first refusal to extend only to overnight absences.

V. Attorney Fees on Appeal

¶27 Father requests an award of his attorney fees incurred on appeal, asserting that Mother’s appeal “has no basis in fact or law” and is therefore frivolous. We may award “just damages,” which can include an award of attorney fees, if we conclude that an appeal is frivolous. Utah R. App. P. 33(a). A frivolous appeal is “one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.” Id. R. 33(b). “[T]he imposition of such a sanction is a serious matter and only to be used in egregious cases, lest the threat of such sanctions should chill litigants’ rights to appeal lower court decisions.” Redd v. Hill, 2013 UT 35, ¶ 28, 304 P.3d 861. Egregious cases may include those appeals which are “obviously without merit, with no reasonable likelihood of success, and which result in the delay of a proper judgment.” Id. (citation and internal quotation marks omitted). Vaughan v. Romander 20131091-CA 13 2015 UT App 244 Father has not demonstrated that this is an egregious case, particularly where our decision in this case includes a dissenting opinion in Mother’s favor on the parent-time issue. We therefore deny Father’s request for attorney fees.

CONCLUSION

¶28 The trial court did not abuse its discretion in denying Mother’s motion to continue the trial. Mother has failed to demonstrate that the factual findings underlying the trial court’s award of primary physical custody to Father are clearly erroneous. And the trial court did not abuse its discretion in limiting the parties’ right of first refusal to provide child care to periods of overnight absence. We therefore affirm. ORME, Judge (concurring and writing for the majority in part):

¶29 Judge Davis and I concur in the lead opinion, except for Part III. We disagree with Judge Christiansen that remand is in order to more precisely learn the trial court’s rationale in selecting the particular weekday when Mother would have parent–time with the child. This is, in context, an exceedingly minor point. And the trial court’s rationale for deviating from the Evaluator’s recommendation is obvious. A remand for the trial court to state the obvious is not, in our view, a good use of judicial resources or, for that matter, the parties’ resources.

¶30 In our view, the trial court did not substantially deviate from the Evaluator’s recommendation, which was for Mother to have one weeknight as well as alternating weekends. She got her one weeknight, although not the alternating one recommended by the Evaluator. Clearly the trial court thought it was more sensible to just have a fixed weeknight—Tuesday—rather than to jump back and forth between Monday and Thursday. If we Vaughan v. Romander 20131091-CA 14 2015 UT App 244 remand for a specific finding, the trial court will just say—and reasonably so—that it finds that the predictability and scheduling ease presented by having a set weeknight outweighs the perceived benefits of alternating weeknights.

¶31 With all due respect to our colleague, this hypertechnical fine tuning in the trial court’s analysis is not worth the burden of remand, especially where its rationale is so intuitive. Thus, the court’s judgment is to affirm the trial court’s order in its entirety.

Dismissed

The reviewing court dismissed the appeal or petition without reaching the merits of the issues presented.

Affirmed

The reviewing court determined that the lower court committed no reversible error and upheld the judgment.