Brown v. Babbitt

2015 UT App 291

THE UTAH COURT OF APPEALS

KELSEY BROWN,

Appellee,

v.

ANTHONY BABBITT,

Appellant.

Memorandum Decision

No. 20140918-CA

Filed December 3, 2015

Third District Court, West Jordan Department

The Honorable Mark S. Kouris

No. 104400226

Terry R. Spencer, Attorney for Appellant

J. Preston Stieff, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,

in which JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY

concurred.

ORME, Judge:

¶1 Anthony Babbitt, having lost a separate but related

appeal, see Brown v. Babbitt, 2015 UT App 161, 353 P.3d 1262,

once again appeals the trial court’s custody and parent-time

orders regarding his and Kelsey Brown’s child (Child). He raises

six issues in the current appeal, three of which our previous

decision resolved.1 Babbitt’s claims not resolved by our prior

1. These three resolved issues are (1) a challenge to the trial

court’s refusal to allow him, during a hearing held to determine

the accuracy of the trial court’s factual findings in the divorce

decree, to present evidence purportedly demonstrating perjury

by Brown; (2) a challenge to the trial court’s decision limiting

(continued…)

Brown v. Babbitt

decision are challenges to (1) the sufficiency of the evidence

supporting the trial court’s conclusion that Brown did not

perjure herself regarding her residency during the divorce trial;

(2) the trial court’s conclusion that even if Brown had committed

perjury, neither her alleged perjury nor her move to North

Carolina constituted substantial and material changes in

circumstances that would justify altering the court’s original

parent-time and custody determinations; and (3) the validity of

the trial court’s decision to further limit Babbitt’s parent-time in

the total absence, he alleges, of proper testimony or appropriate

briefing from the parties on the issue. We affirm.

¶2 Babbitt and Brown married in July 2009. Although their

marriage was brief—Brown filed for divorce six months later,

less than a week after Child’s birth—the legal battle for custody

of Child has endured nearly six years.

¶3 Early in the divorce proceeding, the trial court appointed

a custody evaluator to assess the best interests of Child. After

receiving the evaluator’s report, which flattered neither parent

but was particularly negative as to Babbitt, the trial court

conducted a two-day bench trial in December 2012 and

ultimately awarded sole physical and legal custody of Child to

Brown. The court supported this decision, included in the

divorce decree entered in April 2013, with the evaluator’s

conclusion that Babbitt engaged in a pattern of cruel and

(…continued)

Babbitt’s parent-time to less than the statutory minimum under

Utah Code sections 30-3-32(2)(b) and 30-3-34(2) because it failed

to make factual findings required under those sections; and (3) a

claim that the purported violations of Utah Code sections 30-3-

32(2)(b) and 30-3-34(2) amounted to a deprivation of Babbitt’s

fundamental due process right to parent Child. See Brown v.

Babbitt, 2015 UT App 161, ¶¶ 8–12 & n.1, 353 P.3d 1262. We will

have occasion to revisit these arguments, and their resolution in

our prior decision, in the course of resolving the instant appeal.

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Brown v. Babbitt

deceitful behavior designed to manipulate those closest to him

and that his behavior during the custody action demonstrated

less a love for Child and desire to care for her than Babbitt’s own

interest in ‚winning‛ the custody dispute.2 For example, the

court found that Babbitt intentionally failed to exercise parent-

time for over a year in order to fabricate a custodial interference

claim against Brown. Babbitt also engaged in inappropriate

behavior, such as trying to take Child with him following a

supervised visit in May 2012 and calling Child by a name other

than her own.3

¶4 The court also noted Babbitt’s history of domestic

violence, failure to obey previous court orders with regard to the

payment of child support for his other children, and decision to

feed Child milk-based formula during supervised visits after

being ordered not to do so because Child had had adverse

reactions to milk-based products. These factors led the court to

2. Not content to limit the dispute to the prolonged custody

battle, Babbitt has expanded the war to two additional fronts. He

sued in federal court the judge who presided over the divorce,

along with the presiding judge who ruled on Babbitt’s motions

to disqualify that judge, and the executive director and members

of Utah’s Judicial Conduct Commission because the Commission

dismissed his complaint against the two judges. See

Memorandum Decision and Order Granting Motion to Dismiss,

Babbitt v. Kouris, No. 2:15-cv-208 (D. Utah, Oct. 5, 2015), available

at http://www.law.justia.com/cases/federal/district-courts/utah/

utdce/2:2015cv00208/96007/17/. That lawsuit was recently

dismissed. See id. And he has sued Child’s North Carolina

therapist in Utah’s Third District Court. See Complaint, Babbitt v.

Bertolino, No. 140907250, 2014 WL 5454638 (Oct. 20, 2014).

3. The evaluator’s report characterizes such behavior as

‚consistent with behavior found in parents who abduct their

children and hide them from their other parent.‛

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Brown v. Babbitt

express concern for Child while in Babbitt’s care and thus to

restrict Babbitt to less than the minimum statutory parent-time.

¶5 In the divorce decree, the trial court directed Babbitt to

undergo psychotherapy with one of six specified

psychotherapists. According to the divorce decree this therapy

was to

continue for at least 40 sessions in a calendar year.

[Babbitt] may only be released from therapy when

the therapist deems that he is no longer a danger to

[Child], that he no longer uses manipulation and

deceit for his own gain, and when the therapist can

safely assure that [Babbitt] will not take [Child]

from [Brown]. Additionally, the . . . therapist must

conclude that [Babbitt] has ceased to engage in

aggressive, manipulative or coercive behavior.

[Babbitt] will provide the therapist a copy of . . .

these Findings of Fact and Conclusions of Law.

Babbitt disputed the majority of the trial court’s findings and

filed a rule 52 motion for the court to reconsider or alter every

finding adverse to him.4 See Utah R. Civ. P. 52(b).

¶6 In June 2013, the trial court held a hearing on Babbitt’s

rule 52(b) motion and declined to make any changes to its

findings. Also at this hearing, Babbitt raised the argument that

Brown perjured herself during the original trial because Brown

stated that she resided in Arizona, but Babbitt was convinced

that Brown actually resided in North Carolina. The trial court,

4. On at least one other occasion Babbitt has had some difficulty

accepting the sufficiency of evidence supporting findings that do

not portray him in a positive light. See State v. Babbitt, 762

N.W.2d 58, 60–61 (Neb. 2009) (upholding Babbitt’s conviction for

criminal impersonation despite Babbitt’s challenge ‚that the

State failed to adduce sufficient evidence to support his

convictions‛).

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Brown v. Babbitt

however, refused to address Babbitt’s claim or allow Babbitt to

introduce evidence supporting the claim during this hearing

because ‚*t+hat’s relitigating the case and we’re not going to

relitigate the case.‛5 In July, Babbitt filed both his first motion to

disqualify the trial court judge6 and his first notice of appeal.7

5. In his prior appeal, Babbitt contended that this refusal was a

violation of the ‚open courts‛ provision of the Utah

Constitution. Brown v. Babbitt, 2015 UT App 161, ¶ 12, 353 P.3d

1262. Babbitt raises this argument again in the instant appeal

with regard to the same alleged violation. We previously

concluded that this argument was ‚moot because Babbitt ha[d]

since been given the opportunity to present this evidence in a

hearing on his petition to modify the decree of divorce.‛ Id. After

reviewing Babbitt’s argument in this appeal and our decision in

Babbitt’s first appeal, we see no reason to disturb our previous

ruling, which is the law of the case. See generally IHC Health

Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 26, 196 P.3d 588

(‚*U+nder the law of the case doctrine, ‘a decision made on an

issue during one stage of a case is binding in successive stages of

the same litigation.’ Thus, the doctrine allows a court to decline

to revisit issues within the same case once the court has ruled on

them.‛) (footnote omitted) (quoting Thurston v. Box Elder County,

892 P.2d 1034, 1037 (Utah 1995)).

6. The presiding judge denied this motion. Babbitt’s appellate

brief fails to mention a second, prohibited motion to disqualify

the trial judge, which the presiding judge also denied. See Utah

R. Civ. P. 63(b)(1)(C) (‚No party may file more than one motion

to disqualify in an action.‛).

7. Babbitt’s first appeal challenged the April 2013 divorce decree

and the June 2013 denial of his rule 52(b) motion. Brown, 2015 UT

App 161, ¶¶ 2–4. In that appeal, Babbitt argued—as he does

here—that the court failed to make the findings required by

Utah Code sections 30-3-32(2)(b) and 30-3-34(2) before restricting

(continued…)

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Brown v. Babbitt

¶7 Just over a year later, on August 13, 2014, the trial court

held an evidentiary hearing related to Brown’s alleged perjury

and Babbitt’s additional claims that Brown’s ‚perjury‛ and move

to North Carolina following the divorce constituted ‚substantial

and material change[s] in circumstances supporting a

modification of the existing custody and/or parent-time

provision of the decree of divorce.‛ At the hearing, both Babbitt

and Brown had the opportunity to present evidence and the trial

court heard and received evidence submitted by Babbitt.

¶8 Also at the hearing, counsel for Babbitt informed the court

that Babbitt had completed the required psychotherapy some

time before, but with a different therapist because none of the

therapists listed in the order were available. Counsel assured the

court that ‚within 10 days‛ the court would receive a letter from

Babbitt’s therapist attesting to the completion of the therapy and

‚saying the therapy on issues A through Z ha*d+ been

completed‛ as required by the trial court. The court told Babbitt

that it would consider the letter in reaching its decision. Counsel

for Brown also requested that the trial court decrease Babbitt’s

parent-time. Babbitt interposed no objection to the making of

this request, but his counsel did argue that Babbitt’s visitation

should remain at two visits per month. Five days later, the trial

court, in a letter directed to counsel for both parties, reiterated

that the psychotherapist’s letter must specify that all of the

requirements imposed by the court had been satisfied.

(…continued)

his parent-time with Child. Id. ¶¶ 8–10. On this issue, we held

that the trial court did not commit error because its findings

were adequate to support its decision. Id. ¶¶ 9, 11. As counsel for

Babbitt acknowledged at oral argument in the instant appeal,

that decision necessarily disposes of Babbitt’s claim as renewed

in this appeal. See id. ¶ 11. Furthermore, because the trial court

fulfilled its statutory responsibility, Babbitt’s constitutional-

rights argument premised upon the supposed violation of the

same statutes fails as well. See id. ¶ 11 n.1.

20140918-CA 6 2015 UT App 291

Brown v. Babbitt

¶9 On August 25, 2014,8 about one week after receiving the

court’s letter, Babbitt’s counsel filed a letter written by a licensed

professional counselor (the LPC). The LPC’s letter was deficient

in nearly every material respect. The letter, dated January 31,

2013, stated that Babbitt completed therapy in December 2012,

which was before the trial court issued the April 2013 divorce

decree that required particularized therapy as spelled out in the

decree and that was necessarily to be accomplished thereafter.

As noted, the trial court had been forewarned that the LPC did

not appear on the list of approved therapists from which Babbitt

was supposed to choose. But the court had not been advised that

the letter submitted by the LPC would document therapy

completed pre-decree and that it would not specify that the

several items mandated in the divorce decree had been

completed. Contrary to what the decree required, the letter

merely recited that Babbitt had completed therapy, was working

on employing ‚I statements‛ and ‚on being fine with everyone

not agreeing with him,‛ understood that it would be harmful to

take Child away from her mother, and had ‚developed different

strategies to address *his+ problems.‛ Even more concerning,

because the therapy conducted by the LPC was completed in

December 2012, Babbitt could not possibly have presented the

LPC with a copy of the trial court’s Findings of Fact and

Conclusions of Law, as the divorce decree required, because

those findings were not even entered until some months later.

And again, the therapy referred to in the letter was therapy that

occurred prior to issuance of the divorce decree, not after.

¶10 In mid-September 2014, the trial court issued a

memorandum decision addressing the perjury and residency

issues as well as Babbitt’s apparent bad faith in regard to his

attempt to demonstrate completion of the psychotherapy

8. The trial court’s September 17, 2014 order contains an

apparent typographical error because it states that the court

received the letter on April 25, 2014, even though Babbitt’s

counsel filed the letter on August 25, 2014.

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Brown v. Babbitt

ordered in the divorce decree. As to the perjury claim, the trial

court concluded that Brown did not perjure herself at trial when

she claimed to reside in Arizona, even though she ‚travelled

frequently to Utah and North Carolina to visit family and for

*Child+ to see *Babbitt+.‛ The court further concluded that even if

Brown did perjure herself, Babbitt failed to show that Brown’s

perjury constituted a material change in the circumstances

underlying the court’s custody determination. Finally, the court

concluded that even if Brown’s recent move to North Carolina

constituted a material change in circumstances, Babbitt failed ‚to

show that modification would be an improvement for and in the

best interest of [Child].‛ Babbitt’s noncompliance with the

psychotherapy component of the original divorce decree,

coupled with his apparent bad faith in submitting a therapist’s

letter dated before entry of the divorce decree and which

addressed an earlier round of therapy, gave the court ‚concern*+

for the health and wellbeing of [Child].‛

¶11 Given its concerns, the trial court denied Babbitt’s petition

to modify the divorce decree and instead decreased Babbitt’s

parent-time. The original divorce decree had ordered two

monthly visits with Child, totaling six hours, but also providing

that in early 2014, parent-time would increase to two monthly

visits totaling eight hours. The trial court, in its September 2014

memorandum decision, amended Babbitt’s parent-time by

countermanding the change to eight hours and instead leaving

his visits with Child at twice per month for a total of six hours.

¶12 Babbitt challenges the sufficiency of the evidence

supporting the trial court’s findings that neither Brown’s alleged

perjury nor her recent move to North Carolina constituted a

material change in circumstances justifying a change in custody.

Babbitt does so, however, without properly marshaling the

evidence and by misusing the addendum to his appellate brief.

This same failure characterized his prior appeal and was

highlighted in our prior decision, and for the reasons explained

there, we again decline to disturb the trial court’s factual

findings. See Brown v. Babbitt, 2015 UT App 161, ¶ 7, 353 P.3d

1262.

20140918-CA 8 2015 UT App 291

Brown v. Babbitt

¶13 Babbitt’s remaining claim is that the trial court violated

the open courts provision of the Utah Constitution and the due

process clause of the United States Constitution when it

modified Babbitt’s parent-time schedule. We disagree.

¶14 The trial court imposed a very specific therapy regimen in

the divorce decree. See supra ¶ 5. One of several specified

therapists had to be consulted post-decree, and the therapist had

to certify, in writing, Babbitt’s compliance with very detailed

requirements. Despite counsel’s assurances of imminent

compliance, Babbitt did not consult one of the approved

therapists in the post-decree timeline envisioned by the court,

and the therapist’s letter he submitted met none of the decree’s

requirements. While the court apparently acquiesced in Babbitt’s

consulting a different therapist upon being advised that Babbitt

could not secure the services of any of the specified therapists,

there was no corresponding change in the substantive

requirements imposed by the trial court. Indeed, the court made

a point of reiterating that those requirements continued to apply.

Nonetheless, Babbitt wholly failed to comply with those

requirements. The letter submitted on his behalf documented

therapy that had been provided much earlier. And it included

none of the specific assurances mandated by the decree. Thus,

the submission of the LPC’s letter did not satisfy the decree’s

requirements and, frankly, demonstrated a disregard for those

requirements. And given how long he was given to comply and

how specific the court was in spelling out its expectations,

Babbitt’s right to due process was simply not violated.9 See

9. Despite his protest on appeal, Babbitt acquiesced in the trial

court’s reconsideration of his parent-time. During the August 13

hearing, the trial court informed Babbitt that the therapist’s letter

would be ‚include*d+ . . . as part of *its+ decision.‛ Counsel for

Brown, citing Babbitt’s continued problematic behavior,

violation of the court’s order prohibiting Babbitt from taking

Child to his home during visits, lack of empathy toward Child

and Brown, and use of welfare checks on Child conducted at

(continued…)

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Brown v. Babbitt

generally Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983)

(‚‘[T]he demands of due process rest on the concept of basic

fairness of procedure and demand a procedure appropriate to

the case and just to the parties involved.’‛) (quoting Rupp v.

Grantsville City, 610 P.2d 338, 341 (Utah 1980)).

¶15 As to the decision reached, it was well within the trial

court’s discretion given that Babbitt did not comply with the

clear mandates of the divorce decree. Given this lack of

compliance, the trial court could reasonably find that Babbitt

remained a threat to Child. And Babbitt’s apparent willingness

to mislead the court about the timing and adequacy of his

ordered therapy only buttresses the legitimacy of the court’s

concern.

¶16 The trial court had ample justification to amend its earlier

order to eliminate the provision giving Babbitt an increased

(…continued)

Babbitt’s request to harass Brown, asked the trial court to

decrease Babbitt’s parent-time. During the hearing, Babbitt

neither contested nor objected to the court’s renewed

consideration of its prior order in this regard. If Babbitt had an

objection to the trial court’s reconsideration of his parent-time,

the time to object was during the hearing when opposing counsel

asked the court to reconsider its order and the court indicated

that it might do so. See, e.g., Hodges v. Smoot, 125 P.2d 419, 421

(Utah 1942) (determining that where there is ‚apparent*+ if not

complete acquiescence [in] what the court did as a matter of

procedure,‛ ‚*n+either party is in a position to complain as to

*that+ procedure‛ on appeal); Clark Props., Inc. v. JDW-CM, LLC,

2012 UT App 163, ¶ 8, 282 P.3d 1009 (‚*W+hen a party is

surprised by a court’s action, . . . . it ha[s] an obligation to

contemporaneously express those concerns in some way.‚).

20140918-CA 10 2015 UT App 291

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amount of supervised parent-time.10 And far from overreacting

given its stated concerns, the court confirmed in its decision that

after Babbitt completes the required psychotherapy, it could still

consider allowing unsupervised parent-time.

¶17 Thus, the way forward for Babbitt is clear: he must

successfully complete the required therapy to the satisfaction of

the trial court. Having done so, and with the required assurances

from his therapist, he may then qualify for increased parent-time

and, perhaps eventually, unsupervised parent-time with Child,

if the trial court determines that it would be in the best interest

of Child. See Utah Code Ann. § 30-3-34.5(1), (5)–(6) (LexisNexis

Supp. 2014).

¶18 Affirmed.

10. Babbitt’s counsel argues that the ‚new‛ six-hour restriction

was the most restrictive order yet. But the only difference

between the new order and the original decree is that the twice-

a-month, six-hour parent-time scheme was to continue

indefinitely rather than being for only four months before being

automatically increased.

20140918-CA 11 2015 UT App 291