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Zavala v. Zavala, 2016 UT App 6

Link to Official Court Opinion

Case Summary

This is a child custody modification dispute arising from the 2011 divorce of Armando D. Zavala (Father) and Leonor Zavala (Mother). The parties’ stipulated divorce decree awarded joint legal and physical custody on a near-equal 182/183-night schedule. Both parties later petitioned to modify custody — Mother to reduce Father’s time and Father to obtain sole custody — and after a five-day trial the district court found a material and substantial change of circumstances and modified the school-year schedule from a 7/7 split to a 9/5 split favoring Mother, while also increasing Father’s child support obligation. Father appealed, raising six issues concerning the changed-circumstances finding, the court’s consideration of pre-decree conduct, the sufficiency of the findings, the court’s treatment of custody-evaluation factors, its rejection of the court-appointed evaluator’s recommendation, and its allocation of the evaluator’s fees.

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Briefing Documents

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Coverage

Facts

Marriage and Divorce:

  • Father and Mother married in 2007 and divorced in 2011, and they have one child together.
  • The stipulated Decree of Divorce, entered in February 2011, awarded the parties joint legal and physical custody under an equal time-sharing arrangement in which the child resided with Father 182 nights a year and with Mother 183 nights a year.
  • The decree ordered Father to pay $149 per month in base child support.

Petitions to Modify:

  • Seven months after the decree, Mother filed a Petition to Modify Parent Time seeking to reduce Father’s parent time on the ground that the child needed routine and a stable environment.
  • Two months later, Father filed a counter-petition seeking sole legal and physical custody, alleging that Mother’s relocations were not in the child’s best interest.
  • The court appointed a custody evaluator, Dr. Todd Dunn, and Mother retained her own expert, Dr. Matthew Davies.

Trial:

  • The district court held a five-day trial at which both parties and both experts testified.
  • Dunn recommended that Father have nine of every fourteen nights because it would create less conflict; Dr. Davies opined that Dr. Dunn’s arrangement would not reduce conflict.

Custody and Evidentiary Findings:

  • The district court found that since the divorce, Mother had been a more-or-less full-time caregiver and had greater ability to provide personal parental care than Father, who relied exclusively on child care during the week and failed to list Mother as a parent or emergency contact at the child-care facility.
  • The court found that Father cut off all telephone communication between Mother and the child for a period of at least three, and perhaps six, months during his parent time, and that Father had posted an online comment about being hung over on Christmas morning 2011 while the child was in his care.
  • The court found, without challenge from Father, that Mother had relocated twice since the divorce (from West Valley City to Layton, then to Clearfield), that the child was enrolled in a school in Syracuse, and that the school was 43 miles from Father’s residence.
  • The court found several deficiencies in Dr. Dunn’s evaluation, including that he relied heavily on one-sided text messages supplied by Father without giving Mother an opportunity to respond, initially misapplied the intimate-partner-violence schema, shared information with Father that he withheld from Mother, and failed to assess the step-parents’ role in child care or Father’s alcohol use.

Order of Modification and Fee Allocation:

  • The district court amended the school-year custody schedule to award Mother nine of every fourteen nights, leaving the summer schedule intact, and increased Father’s child support from $149 to $354 per month based on the new schedule and Father’s increased income.
  • The court ordered the parties to bear their own attorney fees, but ordered Father to pay the fee of the court-appointed evaluator, Dr. Dunn, and Mother to pay the fee of her own retained expert, Dr. Davies, explaining that this allocation was equitable given that Father’s income was roughly three times Mother’s imputed minimum-wage income.

Issues of the Case

Father raises six issues on appeal, each addressed to the district court’s modification of the parties’ custody arrangement and related rulings.

  1. Issue 1: Material and Substantial Change of Circumstances
  2. Issue 2: Consideration of Pre-Decree Facts (Plain Error)
  3. Issue 3: Sufficiency of the Findings Supporting the Custody Order
  4. Issue 4: Consideration of the Rule 4-903 / Hutchison Custody Factors
  5. Issue 5: Rejection of the Court-Appointed Evaluator’s Recommendation
  6. Issue 6: Allocation of the Evaluator’s Expert Witness Fees

The Utah Court of Appeals affirmed the district court on all six issues; no issue was reversed or remanded.

  • Custody & Parent-Time — Modification

    Claim on Appeal: Father contended that the district court erred by modifying the custody arrangement without first finding a material and substantial change of circumstances since entry of the 2011 decree.

    Holding: — Affirmed. Because Father himself alleged in his counter-petition that Mother’s relocations and conduct constituted a material and substantial change of circumstances, and because the district court relied on those very facts, Father invited any error under the invited-error doctrine and could not challenge the finding on appeal.

    Statutory Authority: Utah Code § 81-9-208 (Formerly: § 30-3-10.4(1), (2)(b)) (requiring written findings of a material and substantial change of circumstances and of best-interest improvement before modifying a joint custody order).

    Standard of Review:

    • Abuse of discretion — applied to the district court’s determination of whether a material and substantial change of circumstances occurred, which is presumed valid.

    Controlling Cases:

    • Doyle v. Doyle, 2009 UT App 306, 221 P.3d 888, aff’d 2011 UT 42, 258 P.3d 553 (changed-circumstances standard of review).
    • Young v. Young, 2009 UT App 3, 201 P.3d 301 (same).
    • Hogge v. Hogge, 649 P.2d 51 (Utah 1982) (two-part changed-circumstances test).
    • Elmer v. Elmer, 776 P.2d 599 (Utah 1989) (res judicata policy at a low ebb for unadjudicated, stipulated custody decrees).
    • Kerr v. Salt Lake City, 2013 UT 75, 322 P.3d 669 (invited-error doctrine).
    • State v. Geukgeuzian, 2004 UT 16, 86 P.3d 742 (purpose of the invited-error doctrine).

    Why It Matters: The court used this issue to resolve a doctrinal tension between Elmer v. Elmer and its own prior decision in Woodward v. LaFranca, expressly disavowing Woodward’s suggestion that no changed-circumstances finding is required for unadjudicated, stipulated custody decrees. The court clarified that the statutory finding is always required, but that a lesser showing satisfies it where the underlying custody award was stipulated rather than adjudicated.

  • Civil Procedure — Plain Error

    Claim on Appeal: Father contended that the district court committed plain error by including and considering events that occurred before entry of the divorce decree.

    Holding: — Affirmed. No error occurred, obvious or otherwise, because the governing statutes affirmatively direct the court to consider the nature and materiality of the circumstances underlying the original custody award, including pre-decree conduct, in both the changed-circumstances and best-interest inquiries.

    Statutory Authority: Utah Code § 81-9-208 (Formerly: § 30-3-10.4(1), (2)(a)) (change-of-circumstances and best-interest findings); Utah Code §§ 81-9-204, 81-9-205(2) (Formerly: §§ 30-3-10(1)(a), 30-3-10.2(2)(h)-(j)) (best-interest factors incorporated by reference, including the parties’ past conduct).

    Standard of Review:

    • Plain error — requiring a showing that (i) an error exists, (ii) the error should have been obvious to the trial court, and (iii) the error was harmful.

    Controlling Cases:

    • State v. Dunn, 850 P.2d 1201 (Utah 1993) (plain-error test).
    • Danneman v. Danneman, 2012 UT App 249, 286 P.3d 309 (applying plain error in a domestic case).
    • State v. Dean, 2004 UT 63, 95 P.3d 276 (obviousness requires clear governing law).
    • State v. Eldredge, 773 P.2d 29 (Utah 1989) (same).
    • State v. Low, 2008 UT 58, 192 P.3d 867 (obvious error contravenes the plain statutory language).
    • Snyder v. Snyder, 2015 UT App 245, 360 P.3d 796 (changed-circumstances inquiry considers the nature and materiality of prior circumstances).
    • Hogge v. Hogge, 649 P.2d 51 (Utah 1982) (same).

    Why It Matters: The decision confirms that pre-decree conduct remains squarely relevant to both the changed-circumstances and best-interest analyses in a custody modification proceeding, foreclosing arguments that a court’s review must be confined to post-decree events.

  • Custody & Parent-Time — Findings of Fact

    Claim on Appeal: Father contended that the district court’s findings did not support its order modifying the school-year custody schedule from a 7/7 to a 9/5 split.

    Holding: — Affirmed. Numerous findings — many of them unchallenged by Father, including Mother’s greater caregiving role, Father’s interference with communication, and the distance between Father’s home and the child’s school — amply supported the modification, which was not so flagrantly unjust as to constitute an abuse of discretion.

    Statutory Authority: No additional Utah Code section was newly implicated; the court applied the general abuse-of-discretion standard governing custody determinations.

    Standard of Review:

    • Abuse of discretion — trial courts are given particularly broad discretion in custody matters and will be reversed only where the action is so flagrantly unjust as to constitute an abuse of discretion.

    Controlling Cases:

    • Doyle v. Doyle, 2011 UT 42, 258 P.3d 553 (broad discretion afforded to custody determinations).

    Why It Matters: The opinion illustrates the highly deferential standard of review applied to custody modification orders and the significance of unchallenged trial-court findings, which alone can sustain the judgment on appeal.

  • Custody & Parent Time – Best Interests of the Child

    Claim on Appeal: Father contended that the district court failed to consider the custody-evaluation factors under Utah Rule of Judicial Administration 4-903(5), which he used as shorthand for the best-interest factors discussed in Hutchison v. Hutchison.

    Holding: — Affirmed. Father’s one-line blanket objection below did not preserve a claim regarding any specific factor, and in any event Rule 4-903 directs custody evaluators — not courts — to consider its enumerated factors; the district court’s findings were, alternatively, sufficiently articulable and articulated to support its custody award.

    Statutory Authority: Utah R. Jud. Admin. 4-903(5) (custody-evaluator factors); Utah Code § 81-9-208(1) (Formerly: § 30-3-10(1)(a)) (statutory custody factors the court, as opposed to the evaluator, must consider, which Father did not claim the court violated).

    Standard of Review:

    • Preservation — an issue must be presented to the trial court with sufficient specificity to give it a genuine opportunity to rule, or it is not preserved for appeal.

    Controlling Cases:

    • Williams v. Williams, 2001 UT App 330U (Rule 4-903 governs evaluators, not the court).
    • Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982) (non-exhaustive list of best-interest factors a court may consider).
    • Hudema v. Carpenter, 1999 UT App 290, 989 P.2d 491 (factors are not on equal footing; weighting is discretionary).
    • Smith v. Smith, 726 P.2d 423 (Utah 1986) (factors relied on must be articulable and articulated in written findings).
    • State v. Holgate, 2000 UT 74, 10 P.3d 346 (claims not raised below may not be raised on appeal).
    • State v. Rangel, 866 P.2d 607 (Utah Ct. App. 1993) (objection must be timely and specific).
    • State v. Bryant, 965 P.2d 539 (Utah Ct. App. 1998) (objection must give the trial court notice of the specific error).
    • 438 Main St. v. Easy Heat, Inc., 2004 UT 72, 99 P.3d 801 (a general objection to findings does not preserve a specific insufficiency claim).

    Why It Matters: The decision clarifies that Rule 4-903 is a professional-standards rule for evaluators rather than a mandatory judicial checklist, and it reinforces the strict specificity requirement for preserving challenges to the adequacy of a trial court’s findings.

  • Custody & Parent-Time — Custody Evaluator

    Claim on Appeal: Father contended that the district court erred in rejecting the recommendation of Dr. Todd Dunn, the court-appointed custody evaluator, that Father receive nine of every fourteen nights.

    Holding: — Affirmed. The district court articulated multiple specific, record-based reasons for rejecting Dr. Dunn’s recommendation, and Father did not argue that any of the underlying findings were clearly erroneous.

    Statutory Authority: No Utah Code section was newly implicated on this issue; the court applied case-law standards governing deference to custody evaluators.

    Standard of Review:

    • Clearly erroneous — applied to the district court’s findings underlying its rejection of the evaluator’s recommendation.

    Controlling Cases:

    • B. v. L.B., 2014 UT App 270, 339 P.3d 137 (a court is not bound to accept an evaluator’s recommendation but must articulate some reason for rejecting it).
    • Woodward v. LaFranca, 2013 UT App 147, 305 P.3d 181 (standard of review for custody findings).
    • Smith v. Smith, 793 P.2d 407 (Utah Ct. App. 1990) (interference with visitation is relevant to changed circumstances and best interest).

    Why It Matters: The opinion confirms that a district court retains discretion to reject even a court-appointed evaluator’s recommendation so long as it supplies articulated, record-supported reasons, giving trial courts meaningful latitude to weigh evaluator credibility and methodology.

  • Custody & Parent-Time — Expert Fees

    Claim on Appeal: Father contended that the district court erred in requiring him alone to pay the fee of Dr. Dunn, the court-appointed evaluator.

    Holding: — Affirmed. The district court explained that the fee allocation was equitable in light of the substantial disparity between Father’s income and Mother’s imputed minimum-wage income, and Father’s appellate brief failed to address that rationale or cite supporting legal authority.

    Statutory Authority: No Utah Code section was cited on this issue; the allocation of evaluator costs rests in the district court’s discretion.

    Standard of Review:

    • Abuse of discretion — an award of taxable costs will not be disturbed absent an abuse of that discretion.

    Controlling Cases:

    • Ong Int’l (USA), Inc. v. 11th Ave. Corp., 850 P.2d 447 (Utah 1993) (discretionary standard for cost awards).
    • Golden Meadows Props., LC v. Strand, 2010 UT App 257, 241 P.3d 375 (an appellant who fails to address the trial court’s actual rationale forfeits the challenge).
    • Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App 145, 335 P.3d 885 (a brief lacking citation to relevant authority fails to demonstrate error).

    Why It Matters: The ruling illustrates that a fee or cost allocation grounded in the parties’ relative financial circumstances will be upheld where the appellant does not squarely engage with the trial court’s stated rationale or supply supporting authority.

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

  • Doyle v. Doyle, 2009 UT App 306, 221 P.3d 888, aff’d 2011 UT 42, 258 P.3d 553 (standard of review for a changed-circumstances determination).
  • Young v. Young, 2009 UT App 3, 201 P.3d 301 (same).
  • Hogge v. Hogge, 649 P.2d 51 (Utah 1982) (two-part test for a material and substantial change of circumstances).
  • Elmer v. Elmer, 776 P.2d 599 (Utah 1989) (res judicata policy at a low ebb for unadjudicated, stipulated custody decrees).
  • Woodward v. LaFranca, 2013 UT App 147, 305 P.3d 181 (partially disavowed; discussed and limited by the changed-circumstances holding).
  • Hooban v. Unicity Int’l, Inc., 2012 UT 40, 285 P.3d 766 (courts cannot override the clear terms of a statute).
  • Doyle v. Doyle, 2011 UT 42, 258 P.3d 553 (best-interest inquiry cannot swallow the changed-circumstances inquiry; broad discretion in custody rulings).
  • Kerr v. Salt Lake City, 2013 UT 75, 322 P.3d 669 (invited-error doctrine).
  • State v. Geukgeuzian, 2004 UT 16, 86 P.3d 742 (purpose of the invited-error doctrine).
  • State v. Dunn, 850 P.2d 1201 (Utah 1993) (three-part plain-error test).
  • Danneman v. Danneman, 2012 UT App 249, 286 P.3d 309 (applying plain error in a domestic relations case).
  • State v. Dean, 2004 UT 63, 95 P.3d 276 (obviousness element of plain error requires clear governing law).
  • State v. Eldredge, 773 P.2d 29 (Utah 1989) (same).
  • State v. Ross, 951 P.2d 236 (Utah Ct. App. 1997) (obvious error contravenes settled appellate law).
  • State v. Low, 2008 UT 58, 192 P.3d 867 (obvious error contravenes plain statutory language).
  • Snyder v. Snyder, 2015 UT App 245, 360 P.3d 796 (changed-circumstances inquiry considers the nature and materiality of prior circumstances).
  • State v. Menzies, 889 P.2d 393 (Utah 1994) (a later panel may disavow a prior panel’s inconsistent statement).
  • State v. Holgate, 2000 UT 74, 10 P.3d 346 (claims not raised below may not be raised on appeal).
  • State v. Rangel, 866 P.2d 607 (Utah Ct. App. 1993) (objection must be timely and specific to preserve an issue).
  • State v. Bryant, 965 P.2d 539 (Utah Ct. App. 1998) (objection must give the trial court notice of the specific error).
  • 438 Main St. v. Easy Heat, Inc., 2004 UT 72, 99 P.3d 801 (general objection to findings does not preserve a specific-insufficiency claim).
  • Williams v. Williams, 2001 UT App 330U (Rule 4-903 directs evaluators, not courts, to consider its factors).
  • Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982) (non-exhaustive list of factors relevant to a child’s best interest).
  • Hudema v. Carpenter, 1999 UT App 290, 989 P.2d 491 (best-interest factors are not weighted equally).
  • Smith v. Smith, 726 P.2d 423 (Utah 1986) (factors relied upon must be articulable and articulated in written findings).
  • B. v. L.B., 2014 UT App 270, 339 P.3d 137 (court must articulate a reason for rejecting an evaluator’s recommendation).
  • Smith v. Smith, 793 P.2d 407 (Utah Ct. App. 1990) (interference with visitation is relevant to changed circumstances and best interest).
  • Ong Int’l (USA), Inc. v. 11th Ave. Corp., 850 P.2d 447 (Utah 1993) (discretionary standard for cost awards).
  • Golden Meadows Props., LC v. Strand, 2010 UT App 257, 241 P.3d 375 (appellant forfeits a challenge by failing to address the trial court’s rationale).
  • Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App 145, 335 P.3d 885 (brief lacking citation to relevant authority fails to demonstrate error).

Litigation and Appellate Strategy

Reversal Predictor

  • A custody-modification order lacking any written finding of a material and substantial change of circumstances.
  • A changed-circumstances finding resting on facts the appellant did not allege below (removing the invited-error bar).
  • Findings so sparse, internally inconsistent, or unsupported by the record that the resulting order is flagrantly unjust rather than merely debatable.
  • Rejection of a court-appointed evaluator’s recommendation with no articulated, record-based reasoning.

Mandatory Factor Checklist

  • A material and substantial change of circumstances since entry of the order to be modified. Utah Code § 81-9-208 (Formerly § 30-3-10.4(1)).
  • That the modification would be an improvement for, and in the best interest of, the child. Utah Code § 81-9-208(2) (Formerly § 30-3-10.4(2)(b)).
  • Consideration of the best-interest factors in Utah Code §§ 81-9-204 and 81-9-205(2) (Formerly §§ 30-3-10, 30-3-10.2(2)), including the parties’ past conduct, ability to cooperate, and any history of or potential for abuse.

Signal Cluster (High-Risk Appeal Profile)

An appeal challenging a custody modification is at heightened risk of affirmance where the following combine: (1) the appellant’s own pleadings alleged the same changed circumstances the trial court relied on; (2) the appellant’s objections to the trial court’s findings were generalized rather than factor-specific; (3) the appellant does not dispute a substantial number of the trial court’s underlying findings; and (4) the challenged findings concern matters — caregiving history, communication interference, evaluator methodology — squarely within the trial court’s fact-finding discretion.

Strategy Insight

Where a custody modification rests on a broad evidentiary record, an appeal is far more likely to succeed if framed as a legal error — for example, that the trial court applied the wrong legal standard or omitted a statutorily mandated finding — than as a request to reweigh the evidence or credibility findings, which the deferential abuse-of-discretion and clearly-erroneous standards make very difficult to disturb on appeal.

Teaching Value

Zavala is a useful teaching case for the interplay between the changed-circumstances and best-interest prongs of Utah’s custody-modification framework, for the invited-error doctrine’s application to competing custody petitions, and for the specificity required to preserve challenges to a trial court’s findings.

Insights

Utah-Only Jurisprudence

The opinion relies exclusively on Utah statutory and case authority — principally Elmer v. Elmer, Hogge v. Hogge, and the Utah Code’s domestic relations title — with no reliance on out-of-state or federal authority. This is a purely Utah-doctrinal opinion whose primary significance is clarifying, and partially disavowing, this court’s own prior decision in Woodward v. LaFranca.

Doctrinal Anchors (Utah Supreme Court)

  • Elmer v. Elmer, 776 P.2d 599 (Utah 1989) — established that the res judicata policy underlying the changed-circumstances rule is at a low ebb for stipulated, unadjudicated custody decrees; the doctrinal foundation for the court’s central holding.
  • Hogge v. Hogge, 649 P.2d 51 (Utah 1982) — supplied the two-part changed-circumstances test (changed circumstances since the prior decree that are sufficiently material and substantial to justify reopening custody).
  • Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982) — supplied the non-exhaustive list of best-interest factors a court may, but is not required, to consider.
  • Doyle v. Doyle, 2011 UT 42, 258 P.3d 553 — confirmed that the best-interest inquiry cannot substitute for, or swallow, the required changed-circumstances showing, and articulated the broad-discretion standard for custody rulings.

The Most Important Holding

The court’s most significant holding is its clarification — and express disavowal in part — of Woodward v. LaFranca: a district court is never excused from making the statutorily required finding of a material and substantial change of circumstances before modifying an existing joint custody order, even where the underlying decree was stipulated rather than adjudicated. What varies with the stipulated/adjudicated distinction is not whether the finding must be made, but how demanding a showing is required to make it.

Affirmance in Full — What Would Have Triggered Reversal

Because the district court affirmed in full, no legal or factual error warranted reversal. Based on the court’s analysis, reversal would likely have required: (1) a custody order modifying joint custody with no written findings of changed circumstances and best-interest improvement; (2) a changed-circumstances finding resting on facts the appellant had not himself alleged (defeating any invited-error bar); or (3) findings so thin or internally inconsistent that the modification was flagrantly unjust rather than merely debatable.

Practitioner Takeaways

  • Trial Lawyers: A party who alleges a material and substantial change of circumstances in their own pleading forecloses an appellate challenge to a changed-circumstances finding resting on those same facts, under the invited-error doctrine. Plead changed circumstances carefully, and only to the extent truly intended.
  • Appellate Lawyers: A one-line, non-specific objection to a district court’s findings (e.g., a blanket “failed to consider the 4-903 factors” objection) will not preserve a challenge to any individual factor. Objections must identify the specific factor or finding claimed to be deficient.
  • Custody Evaluators and Retaining Counsel: A court-appointed evaluator’s recommendation is not binding, and a court may reject it based on documented methodological concerns — one-sided source materials, failure to address abuse dynamics, or failure to consider a party’s alcohol use — so long as those reasons are articulated in the findings.

Majority Opinion

2016 UT App 6 THE UTAH COURT OF APPEALS LEONOR

ZAVALA, Appellee, v. ARMANDO D. ZAVALA, Appellant.

Opinion No. 20141031-CA Filed January 14, 2016

Third District Court, Salt Lake Department

The Honorable Keith A. Kelly No. 114900271

David C. Blum, Attorney for Appellant David Pedrazas, Attorney for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which JUDGE STEPHEN L. ROTH concurred and SENIOR JUDGE RUSSELL W. BENCH concurred in the result.

1 VOROS, Judge:

¶1 This is a child custody dispute arising from a 2011 divorce. On cross-petitions for modification, the district court found a material and substantial change of circumstances and modified the parties’ stipulated school-year custody schedule 1. Senior Judge Russell W. Bench sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(6). Zavala v. Zavala 20141031-CA 2 2016 UT App 6 from a 7/7 schedule to a 9/5 schedule.2 We conclude that the district court acted within its discretion in modifying the decree; accordingly, we affirm. BACKGROUND

¶2 Armando Zavala (Father) and Leonor Zavala (Mother) married in 2007 and divorced in 2011. They had one child. The stipulated Decree of Divorce awarded the parties joint legal and physical custody of the child. The parties stipulated to an equal time-sharing arrangement under which the child resided with Father 182 nights a year and with Mother 183 nights a year. The decree ordered Father to pay $149 per month as base child support. The decree was entered in February 2011.

¶3 Seven months later, Mother filed a Petition to Modify Parent Time seeking to reduce Father’s parent time on the ground that the child “needs routine and a stable environment.” Two months later, Father filed a counter-petition seeking sole legal and physical custody of the child on the ground that Mother’s relocations were not in the child’s best interest. The court appointed a custody evaluator, Dr. Todd Dunn. Mother retained an expert, Dr. Matthew Davies.

¶4 The court held a trial over five days. Both parties and both experts testified. Dr. Dunn recommended that Father have nine nights out of fourteen nights, because it would “create less conflict.” Dr. Davies opined that Dr. Dunn’s arrangement would not reduce conflict. 2. This means that for every two-week period during the school year, the child spends nine nights with Mother and five with Father, rather than seven with each. Zavala v. Zavala 20141031-CA 3 2016 UT App 6

¶5 The district court entered Amended Findings of Fact and Conclusions of Law, an Order of Modification, and an order denying Father’s post-trial motions. The court amended the decree in two respects. First, it amended the parties’ school-year custody schedule, awarding Mother nine out of every fourteen nights with the child during the school year. The court left the summer custody schedule intact. Second, based on the amended custody schedule and Father’s increased income, the court increased his child support from $149 a month to $354 a month. The court also ordered Mother to pay Dr. Davies’s fees and Father to pay Dr. Dunn’s fees. Father appeals. ISSUES ON APPEAL

¶6 First, Father contends that the district court erred by modifying the custody arrangement without first finding a material and substantial change of circumstances since the entry of the decree.

¶7 Second, Father contends that the district court committed plain error when it “included and considered events that occurred prior to the entry of the decree.”

¶8 Third, Father contends that the district court’s findings do not support its custody order.

¶9 Fourth, Father contends that the district court “failed to consider the 4-903 factors” under the Utah Rules of Judicial Administration. See Utah R. Jud. Admin. 4-903.

¶10 Fifth, Father contends that the district court erred in rejecting the recommendations of Dr. Todd Dunn, the courtappointed custody evaluator.

¶11 Finally, Father contends that the district court erred in requiring him to pay Dr. Dunn’s expert witness fees. Zavala v. Zavala 20141031-CA 4 2016 UT App 6 ANALYSIS I. Father Invited Any Error in the District Court’s Finding of a Material and Substantial Change of Circumstances

¶12 First, Father contends that the district court erred by modifying the custody arrangement without first finding a material and substantial change of circumstances had occurred since the entry of the divorce decree. The “‘determination of the trial court that there [has or has not] been a substantial change of circumstances . . . is presumed valid, and we review the ruling under an abuse of discretion standard.’” Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888 (alteration and omission in original) (quoting Young v. Young, 2009 UT App 3, ¶ 4, 201 P.3d 301), aff’d 2011 UT 42, 258 P.3d 553.

¶13 Under Utah Code section 30-3-10.4(2)(b), “a court order modifying . . . an existing joint legal or physical custody order shall contain written findings that: (i) a material and substantial change of circumstance has occurred; and (ii) a modification . . . would be an improvement for and in the best interest of the child.” Utah Code Ann. § 30-3-10.4(2)(b) (LexisNexis 2012). Thus, “the party seeking modification must demonstrate (1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982).

¶14 The parties disagree over whether modifying a stipulated—as opposed to an adjudicated—custody award requires a finding of a material and substantial change of circumstances. In Elmer v. Elmer, our supreme court held that when custody decrees are not adjudicated, “the res judicata policy underlying the changed-circumstances rule is at a particularly low ebb.” 776 P.2d 599, 603 (Utah 1989). Zavala v. Zavala 20141031-CA 5 2016 UT App 6

¶15 This court seemed to take the analysis a step further when it applied Elmer in Woodward v. LaFranca, stating that “when the trial court considers a petition to modify an unadjudicated divorce decree, . . . it is unnecessary for the trial court to make a threshold determination of material change in circumstances.” 2013 UT App 147, ¶ 32, 305 P.3d 181. Mother maintains that, post-Woodward, “courts are no longer required to make a finding of substantial change in circumstances when the parties stipulated and agreed upon the custody provisions in the Decree of Divorce.” We take this opportunity to clarify.

¶16 The required finding of a material and substantial change of circumstances is statutory. Neither this court nor the supreme court has purported to—or could—alter that requirement. See Hooban v. Unicity Int’l, Inc., 2012 UT 40, ¶ 20 n.4, 285 P.3d 766 (stating “our cases cannot be read to override the clear terms of [a] statute”). Rather, our courts have recognized the requirement for what it is: a legislative expression of the principle of res judicata. If a custody award has already been entered, custody will not be re-examined absent a material and substantial change of circumstances.

¶17 But whether a change of circumstances qualifies as “sufficiently substantial and material to justify reopening the question of custody,” Hogge, 649 P.2d at 54, depends on the nature of the underlying custody award. In the case of a stipulated award, in Elmer’s parlance, the res judicata policy underlying the changed-circumstances rule is at a low ebb, because “an unadjudicated custody decree is not based on an objective, impartial determination of the best interests of the child.” Elmer, 776 P.2d at 603. In such a case, the court does not re-determine the custody award, but adjudicates it for the first time. Thus, a lesser showing will support modifying a stipulated award than would be required to modify an adjudicated award. Zavala v. Zavala 20141031-CA 6 2016 UT App 6

¶18 Elmer’s balancing of interests thus respects the statutory framework, recognizes the true nature of the inquiry, and—most importantly—accords priority to the best interest of the child. Any contrary statements in Woodward notwithstanding, Elmer does not permit the best-interest inquiry to swallow up the changed-circumstances inquiry: “Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.” Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553.3

¶19 We turn now to Father’s contention that the district court erred by modifying the custody arrangement without first finding a material and substantial change of circumstances had occurred since the entry of the decree. The district court rejected this contention in connection with Father’s post-trial motions. In keeping with the foregoing analysis, the district court recognized its duty to find a material and substantial change of circumstances. The court also noted, again in keeping with the foregoing analysis, that the cross-petitions to modify represented the first opportunity for any court to evaluate the best interest of the child in the custody context, thus recognizing a relaxed standard for assessing whether any change of circumstances qualified as material and substantial.

¶20 The court also observed that both parties had alleged that circumstances had changed sufficiently to warrant a modification of the custody award. On appeal, Mother argues that by filing a petition alleging a material and substantial change of circumstances, Father waived any claim that such a change had not occurred. We agree. 3. To the extent our opinion in Woodward v. LaFranca, 2013 UT App 147, 305 P.3d 181, may vary from this analysis, we disavow it as inconsistent with Elmer v. Elmer, 776 P.2d 599, 603 (Utah 1989). See State v. Menzies, 889 P.2d 393, 399 n.3 (Utah 1994). Zavala v. Zavala 20141031-CA 7 2016 UT App 6

¶21 Under the invited-error doctrine, “a litigant may not induce the trial court to make a ruling and then argue on appeal that the ruling was in error.” Kerr v. Salt Lake City, 2013 UT 75, ¶ 44, 322 P.3d 669. The invited-error doctrine “is crafted to discourage[] parties from intentionally misleading the trial court so as to preserve a hidden ground for reversal on appeal” and “to give the trial court the first opportunity to address the claim of error.” State v. Geukgeuzian, 2004 UT 16, ¶ 12, 86 P.3d 742 (alteration in original) (citation and internal quotation marks omitted).

¶22 Father acknowledges that in the district court he alleged a material and substantial change of circumstances, specifically, that Mother’s “relocations and conduct constituted changes in circumstances sufficient to award him custody.” But he disputes that his allegation could have induced the district court’s finding of changed circumstances. Father reasons that the court must have rejected his allegations or it “would not have awarded custody to [Mother].”

¶23 This is not how we read the record. In denying Father’s post-trial motions, the district court noted that 27 of its amended findings “discuss in detail the changed circumstances warranting a custody modification.” Relevant here, the court found that “[s]ince the entry of the Decree of Divorce,” Mother “relocated at least 2 separate occasions,” first from West Valley City to Layton, then from Layton to Clearfield. The court then found the number of miles and minutes of travel time separating each of Mother’s new residences from Father’s residence. We thus conclude that the district court relied on the very change of circumstances Father alleged.

¶24 Father reasons that the district court must have rejected his allegation of a material and substantial change of circumstances because the court did not award Father sole custody. This argument confuses the changed-circumstances Zavala v. Zavala 20141031-CA 8 2016 UT App 6 inquiry with the best-interest inquiry. The district court’s findings show that the court rejected Father’s position with respect to the latter, not the former.

¶25 The district court entered findings on the question of a material and substantial change of circumstances. And because the court relied on the very facts that Father himself argued justified modifying the custody award, we reject under the invited-error doctrine Father’s contention that the court failed to find a material and substantial change of circumstances. II. The District Court Properly Considered Pre-Decree Facts

¶26 Father next contends that the district court committed plain error when it “included and considered events that occurred prior to the entry of the decree.” He notes that the court’s ruling “identifies a number of events that occurred prior to the parties’ divorce and, by their inclusion in [its] findings, were obviously part of [its] ruling.”

¶27 To establish plain error, an appellant must show “(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993); see also Danneman v. Danneman, 2012 UT App 249, ¶ 10, 286 P.3d 309. “To establish that an error should have been obvious to the trial court, [an appellant] must show that the law governing the error was clear at the time the alleged error was made.” State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (citing State v. Eldredge, 773 P.2d 29, 35–36 (Utah 1989)). Thus, an obvious error is one that contravenes “settled appellate law,” State v. Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997), or “the plain language of the relevant statute,” State v. Low, 2008 UT 58, ¶ 41, 192 P.3d 867. Zavala v. Zavala 20141031-CA 9 2016 UT App 6

¶28 Here, the relevant statute provides that the district court may modify an order establishing joint legal or physical custody only if the circumstances of the child, or one or both parents (or joint legal or physical custodians), “have materially and substantially changed since the entry of the order to be modified.” Utah Code Ann. § 30-3-10.4(1) (LexisNexis 2012). However, that statute does not remove pre-decree conduct from the inquiry; in fact the opposite is true. “When determining whether there has been a substantial change in circumstances, the district court will consider the nature and materiality of any changes in those circumstances upon which the earlier award of custody was based.’” Snyder v. Snyder, 2015 UT App 245, ¶ 10, 360 P.3d 796 (quoting Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982)).

¶29 Furthermore, the controlling statute states, “In determining whether the best interest of a child will be served by either modifying or terminating the joint legal or physical custody order, the court shall, in addition to other factors the court considers relevant, consider the factors outlined in Section 30-3-10 and Subsection 30-3-10.2(2).” Utah Code Ann. § 30-3- 10.4(2)(a). The factors outlined in those subsections guide the court’s original custody award and include the parties’ “past conduct,” id. § 30-3-10(1)(a)(i); their “past and present ability . . . to cooperate with each other”; “any history of, or potential for, child abuse”; and “any other factors the court finds relevant,” id. § 30-3-10.2(2)(h), -(i), -(j). Nothing in the statutes states or implies that, in determining whether modifying a custody award would serve the best interest of the child, the court must confine its inquiry to the parties’ conduct after entry of the original custody award.

¶30 Rather than excluding the parties’ pre-decree conduct from the inquiry, the controlling statutes invite the district court to include it. Accordingly, the district court did not err, obviously or otherwise, in considering in the changed- Zavala v. Zavala 20141031-CA 10 2016 UT App 6 circumstances inquiry all material facts, including events and conduct that occurred before entry of the original divorce decree. III. The District Court’s Findings Support Its Custody Award

¶31 Father next contends that the district court’s findings do not support its custody order. Under the court’s custody order, Father and Mother continue to exercise joint legal and physical custody of the child; however, the school-year visitation schedule changes from a 7/7 schedule to a 9/5 schedule, with Mother having nine overnights and Father having five overnights per fortnight.

¶32 “A trial court is given particularly broad discretion in the area of child custody incident to separation or divorce proceedings.” Doyle v. Doyle, 2011 UT 42, ¶ 40, 258 P.3d 553 (citation and internal quotation marks omitted). We will reverse “[o]nly where trial court action is so flagrantly unjust as to constitute an abuse of discretion.” Id. (citation and internal quotation marks omitted).

¶33 Father acknowledges an adequate evidentiary basis for the following findings: that since the divorce Mother has been a more-or-less full-time caregiver; that Mother has greater ability to provide parental care over surrogate care; that Father has relied exclusively on child care during the week; that Father failed to list Mother as a parent or emergency contact at the child-care facility; that for a period of at least three months—and perhaps six months—Father cut off all telephone communication between Mother and the child during Father’s parent time; and that Father had posted a comment online to the effect that he was hung over on Christmas morning 2011, a time when the child was staying with him. In addition, Father does not challenge the court’s findings that since the divorce, Mother moved from West Valley City to Layton and then to Clearfield, Zavala v. Zavala 20141031-CA 11 2016 UT App 6 that the child is enrolled in a school in Syracuse, and that the school is 43 miles from Father’s residence.

¶34 Father challenges other findings as irrelevant, lacking evidentiary support, or contrary to the court’s ultimate ruling. But even if Father were correct about those other findings—a question on which we express no opinion—we could not in the face of the findings summarized above conclude that the district court’s alteration of the school-year custody schedule is “so flagrantly unjust as to constitute an abuse of discretion.” See id. (citation and internal quotation marks omitted). IV. The District Court Considered the Relevant Factors

¶35 Father next contends that the district court “failed to consider the 4-903 factors.” See Utah R. Jud. Admin. 4-903. His brief discusses the 12 subsections and sub-subsections of Utah Rule of Judicial Administration 4-903(5) and addresses the extent to which, in his view, the district court considered or failed to consider each.

¶36 To be clear, rule 4-903 governs the qualification and selection of custody evaluators and the evaluations they generate. Its stated purpose is to “establish uniform guidelines for the preparation of custody evaluations.” Id. The rule specifies factors that “evaluators must consider and respond to.” Id. R. 4- 903(5). But it “does not direct the court to consider the factors enumerated therein; it merely directs that custody evaluations shall be performed by qualified professionals, and it directs those professionals to consider a number of factors in making a report to the court.” Williams v. Williams, 2001 UT App 330U, para. 1.

¶37 We understand that Father uses the term “4-903 factors” as shorthand for child custody factors mentioned in case law. And in fact on appeal he quotes extensively, both directly and Zavala v. Zavala 20141031-CA 12 2016 UT App 6 indirectly, from Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982). In Hutchinson, our supreme court listed factors to be considered in a best-interest inquiry. Id. at 41. But the supreme court in Hutchison did not purport to create a list of factors the court must consider on peril of reversal. Rather, it listed “[s]ome factors” that the court “may consider” in determining the child’s best interest. Id. And this court has held, “Although the court considers many factors, each is not on equal footing.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “Generally, it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. Moreover, “the factors relied on by the trial judge in awarding custody must be articulable and articulated in the judge’s written findings and conclusions.” Smith v. Smith, 726 P.2d 423, 426 (Utah 1986).4

¶38 Mother argues that Father failed to preserve his claim that the district court failed to consider all the necessary factors. We agree. Father objected to the court’s findings on the ground that the court “failed to consider the 4-903 factors.” However, the objection did not specify any particular factor that the court had failed to consider. Rather, his objection was a one-line blanket objection.

¶39 It is well settled that “claims not raised before the trial court may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. To preserve an issue for appeal, a litigant “must enter an objection on the record that is both timely and 4. Section 30-3-10(1)(a) states that in determining a change in custody, the court “shall consider” certain enumerated factors, but Father does not claim that the court violated that section. See Utah Code Ann. § 30-3-10(1)(a) (LexisNexis Supp. 2014). Zavala v. Zavala 20141031-CA 13 2016 UT App 6 specific.” State v. Rangel, 866 P.2d 607, 611 (Utah Ct. App. 1993). “The objection must be specific enough to give the trial court notice of the very error of which [the party] complains.” State v. Bryant, 965 P.2d 539, 546 (Utah Ct. App. 1998) (citation and internal quotation marks omitted). Thus, to be preserved for appeal, an issue “must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation and internal quotation marks omitted).

¶40 In 438 Main Street the appellant objected that the trial court’s findings were “inaccurate and incomplete.” Id. ¶ 47. The supreme court held that this objection did not preserve an appellate claim that the findings were “insufficiently detailed to disclose how the court reached its decision.” Id. ¶ 53. Similarly here, we agree with Mother that Father’s one-line blanket objection lacked the specificity to preserve his appellate claim that the court failed to consider each of 12 factors listed in rule 4- 903(5) or the factors listed in Hutchison. We reject his challenge on that ground.

¶41 Alternatively, we are satisfied that the factors relied on by the district court in awarding custody are both “articulable and articulated in the judge’s written findings and conclusions.” Smith, 726 P.2d at 426. For example, we note the following findings of the court: that a custody evaluator rated Mother as the better parent than Father; that Father lived 43 miles from the child’s school; that the parties admitted to two physical altercations between the parties in the presence of the child in which Father was the aggressor; that Mother had the greater ability to provide personal child care; that Father relied exclusively on surrogate care; that Father cut off telephone communication between Mother and the child for a period of months during his parent time; and that Father failed to list Zavala v. Zavala 20141031-CA 14 2016 UT App 6 Mother as a parent or an emergency contact at the child’s childcare facility.5

¶42 The best practice may well be to make findings on each of the statutory factors that sections 30-3-10 and 30-3-10.2(2) require the court to consider. And we recognize that the court’s findings here do not line up neatly with the factors listed in those sections, rule 4-903, or Hutchison. But a court’s findings are determined at least in part by “the facts before it.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491.

¶43 In sum, Father failed to preserve his objection based on custody considerations. But even if he had preserved this objection, we could not say that the district court’s action was “so flagrantly unjust as to constitute an abuse of discretion.” See Doyle v. Doyle, 2011 UT 42, ¶ 40, 258 P.3d 553 (citation and internal quotation marks omitted). V. The District Court Did Not Abuse Its Discretion in Rejecting the Court-Appointed Evaluator’s Recommendations

¶44 Father next contends that the district court erred in rejecting the recommendations of Dr. Todd Dunn, the courtappointed custody evaluator. “Although 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. We will not set aside the district court’s findings unless clearly erroneous. Woodward v. LaFranca, 2013 UT App 147, ¶ 7, 305 P.3d 181. 5. We note that “interference with visitation may be a factor relevant to the issues of both a change in circumstances and the child’s best interests.” Smith v. Smith, 793 P.2d 407, 411 (Utah Ct. App. 1990). Zavala v. Zavala 20141031-CA 15 2016 UT App 6

¶45 The district court’s findings leave no doubt why the court rejected Dr. Dunn’s recommendation. For example, the court found that Dr. Dunn relied heavily on text messages between the parties given to him by Father without allowing Mother the opportunity to explain or rebut them and without including all of Father’s corresponding text messages; Dr. Dunn initially misapplied the “intimate partner violence schema”; Dr. Dunn supplied information to Father that he withheld from Mother; Dr. Dunn failed to assess the step-parents’ role in child care; and Dr. Dunn failed to consider Father’s alcohol use. For reasons explained by Father, the court might have found otherwise on each of these points. But Father does not demonstrate—or even assert—that any of these findings are clearly erroneous. We thus conclude that the court here did “articulate some reason for rejecting” Dr. Dunn’s recommendation. See R.B., 2014 UT App 270, ¶ 18. VI. The District Court Did Not Abuse Its Discretion in Allocating Evaluator Costs

¶46 Finally, Father argues that the district court erred in requiring him to pay Dr. Dunn’s expert witness fees. “The determination to award taxable costs is within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion.” Ong Int’l (USA), Inc. v. 11th Ave. Corp., 850 P.2d 447, 460 (Utah 1993).

¶47 Although Father’s actual income is approximately three times as much as Mother’s imputed income, the district court ordered the parties to bear their own attorney fees and costs.6 In addition, the court ordered Father to pay the fee of Dr. Dunn, 6. With one exception: the court ordered Mother to pay Father within 90 days $367.20 incurred by him when Mother failed to appear at the pretrial conference as ordered by the court. Zavala v. Zavala 20141031-CA 16 2016 UT App 6 whom the court appointed, and Mother to pay the fee of Dr. Davies, whom Mother retained.

¶48 On appeal, Father argues that “the trial court failed to indicate why [it] would require only [Father] to pay the costs of the court-appointed evaluator,” Dr. Dunn. Father’s appellate claim parallels his post-trial motion seeking an “explanation as to why [Father] should have to bear the entire costs of the Court’s expert.” But it ignores the explanation given by the district court in response to that motion: “This decision was equitable, in part, because [Father’s] income is significantly higher than that of [Mother,] who does not work outside of her home and has only minimum wage imputed to her.” “Because [Father] fails to address the basis of the district court’s ruling, we reject this challenge.” See Golden Meadows Props., LC v. Strand, 2010 UT App 257, ¶ 17, 241 P.3d 375.7 CONCLUSION

¶49 For the reasons stated above, the judgment of the district court is affirmed. 7. In addition, because Father’s brief contains no citation to the law relevant to this point, it falls short of demonstrating that the district court erred. See Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App 145, ¶ 37, 335 P.3d 885.

Concurrences

Plura pertinentia mox sequentur. Quaeso, redi mox.

Affirmed

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