Brown v. Babbitt

2015 UT App 161

THE UTAH COURT OF APPEALS

KELSEY BROWN,

Petitioner and Appellee,

v.

ANTHONY BABBITT,

Respondent and Appellant.

Memorandum Decision

No. 20130641-CA

Filed June 25, 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 JAMES Z. DAVIS authored this Memorandum Decision, in

which JUDGES JOHN A. PEARCE and KATE A. TOOMEY concurred.

DAVIS, Judge:

¶1 Anthony Babbitt appeals the trial court’s custody and

parent-time orders regarding his and Kelsey Brown’s child

(Child). We affirm.

I. Sufficiency of the Notice of Appeal

¶2 As a threshold matter, we address Brown’s argument that

we lack jurisdiction over this case because Babbitt’s notice of

appeal failed to identify the decree of divorce—the court’s final

order in this case—as the order from which he appealed. Instead,

Babbitt’s notice of appeal identified the trial court’s denial of his

rule 52(b) motion to alter or amend the court’s findings and the

court’s Findings of Fact and Conclusions of Law and Order.

“*T+imely filing of a notice of appeal is the only jurisdictional

Brown v. Babbitt

requirement for appellate review,” and dismissal for other

defects in the notice of appeal is a matter for the appellate court’s

discretion. Davis v. Central Utah Counseling Ctr., 2006 UT 52,

¶¶ 13–14, 147 P.3d 390. Because the notice of appeal was timely

filed, we construe this argument as a challenge to the sufficiency

of the notice of appeal.

¶3 “The purpose of the notification requirement is to advise

the opposite party that an appeal has been taken from a specific

judgment in a particular case . . . [because the opposing party] is

entitled to know specifically which judgment is being appealed.”

Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 14, 199 P.3d

957 (alteration and omission in original) (citation and internal

quotation marks omitted). “In determining whether the

notification requirement has been met, we have long adhered to

the policy that where the notice of appeal sufficiently identifies

the final judgment at issue and the opposing party is not

prejudiced, the notice of appeal is to be liberally construed.” Id.

(citation and internal quotation marks omitted). Thus, “*w+here

the appealing party’s intent is clear and the appellee suffers no

prejudice, the notice of appeal is sufficient.” Id. ¶ 15; see, e.g., id.

¶ 16 (holding that an appeal was perfected, despite the

appellant’s failure to “explicitly reference” the relevant order in

the notice of appeal, because the appellant’s intent was clear and

the appellee was not prejudiced); Speros v. Fricke, 2004 UT 69,

¶¶ 14–15, 98 P.3d 28 (rejecting the appellee’s argument that the

appellant’s identification of a nonexistent January 11 order

rather than the January 15 order from which the appellant

actually intended to appeal rendered its notice of appeal

inadequate); In re B.B., 2004 UT 39, ¶ 11, 94 P.3d 252 (“While the

notice of appeal was not a model of clarity, it adequately notified

the [petitioners+ of the issues to be reviewed.”).

¶4 Although Babbitt did not explicitly appeal from the

decree of divorce, his intent to do so was clear. Furthermore,

there is nothing to indicate that Brown was prejudiced by the

technical deficiency of Babbitt’s notice of appeal. Thus, we

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consider it appropriate to treat Babbitt’s appeal as an appeal

from the decree of divorce and to address it on its merits. See

Davis, 2006 UT 52, ¶¶ 13–14.

II. Custody and Parent-Time Awards

¶5 Babbitt challenges the trial court’s award of primary

physical custody to Brown and its parent-time determination.

Babbitt argues, first, that the trial court’s findings of fact in

support of its rulings were not supported by the evidence and,

second, that the trial court failed to make statutorily required

findings in support of its decision to award Babbitt less parent-

time than is outlined in the minimum statutory parent-time

schedule. We will not disturb a trial court’s findings of fact

unless they are clearly erroneous. Kimball v. Kimball, 2009 UT

App 233, ¶ 14, 217 P.3d 733. 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.” Id. (citation and internal quotation marks omitted).

“We review the legal sufficiency of factual findings”—that is,

whether the trial court’s factual findings are sufficient to support

its legal conclusions—“under a correction-of-error standard,

according no particular deference to the trial court.” Id. (citation

and internal quotation marks omitted).

A. Sufficiency of the Evidence

¶6 Babbitt first argues that the evidence did not support a

number of the findings that the trial court ultimately relied on in

awarding custody to Brown and in fixing parent-time for

Babbitt. He argues that “there are material discrepancies

between the written Custody Evaluation Report . . . and the

testimony of various witnesses at trial, including [the custody

evaluator+ herself.” Babbitt asserts that it was an abuse of the

trial court’s discretion to give more weight to the “stale” custody

evaluation report than to the witnesses at trial who testified in

his favor. He also asserts that the custody evaluator’s testimony

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at trial differed in some respects from her report and that her

trial testimony should have been considered more reliable

because it was more recent. Finally, he takes issue with the trial

court’s decision to give weight to Brown’s testimony over that of

other witnesses.

¶7 Rather than analyze these issues in the text of his brief,

Babbitt simply lists them and then refers us to “Addendum E” of

his brief, a nineteen-page addendum in which he identifies the

findings he takes issue with and selectively lists evidence

relating to those findings. “It is improper for counsel to attempt

to enlarge the page limit of the brief by placing critical facts in

appendices.” DeBry v. Cascade Enters., 879 P.2d 1353, 1360 n.3

(Utah 1994). Furthermore, both Babbitt’s brief and Addendum E

take issue with the trial court’s credibility determinations and its

weighing of the evidence rather than addressing the sufficiency

of the evidence to support the trial court’s findings. “*I+t is the

role of the fact finder to assess the credibility of witnesses and to

weigh the evidence.” Child v. Child, 2008 UT App 338, ¶ 3 n.1,

194 P.3d 205, vacated in part on other grounds by 2009 UT 17, 206

P.3d 633 (per curiam). Thus, we give deference to the trial court’s

factual findings unless “they are in conflict with the clear weight

of the evidence.” Kimball, 2009 UT App 233, ¶ 14 (citation and

internal quotation marks omitted). Because Babbitt attempted to

circumvent the briefing requirements by discussing the evidence

in Addendum E rather than in the text of the brief, and because

he reargues the evidence rather than demonstrating how the

evidence is insufficient to support the trial court’s findings, we

will not disturb those findings. Cf. Warner v. Warner, 2014 UT

App 16, ¶¶ 47–48, 319 P.3d 711 (holding that an appellant’s

attempt to marshal the evidence in an addendum was

“inadequate to carry the burden of challenging a court’s finding

of fact on appeal because, among other things, [the appellant]

violated the page limit rule, relied extensively on facts that have

no apparent grounding in the record, and failed to even address

the record evidence in support of the district court’s finding”).

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B. Adequacy of the Findings

¶8 Babbitt next argues that the trial court failed to make

required findings in support of its decision to award Babbitt less

than the minimum statutory parent-time schedule and its order

that his parent-time be supervised. Babbitt asserts that the trial

court was required to make findings in accordance with two

separate provisions of the Utah Code.

¶9 The first provision, section 30-3-32, reads,

(b) Absent a showing by a preponderance of

evidence of real harm or substantiated potential

harm to the child:

(i) it is in the best interests of the child of

divorcing, divorced, or adjudicated parents to have

frequent, meaningful, and continuing access to

each parent following separation or divorce;

(ii) each divorcing, separating, or

adjudicated parent is entitled to and responsible

for frequent, meaningful, and continuing access

with his child consistent with the child’s best

interests; and

(iii) it is in the best interests of the child to

have both parents actively involved in parenting

the child.

Utah Code Ann. § 30-3-32(2)(b) (LexisNexis Supp. 2014). Babbitt

asserts that under this section, the trial court was required to

make a finding of “real harm or substantiated potential harm to”

Child in order to award Babbitt supervised parent-time in an

amount less than the statutory minimum. See id. However,

Babbitt has failed to demonstrate that the trial court was

required to make such a finding as a prerequisite to departing

from the statutory parent-time schedule. He has made no

assertion that the parent-time awarded by the court deprived

either him or Child of “frequent, meaningful, and continuing

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access” to one another, see id. § 30-3-32(2)(b)(i)–(ii), or that it

precluded him from being “actively involved in parenting [his]

child,” see id. § 30-3-32(2)(b)(iii). Thus, Babbitt has failed to

establish that a finding of “real harm or substantiated potential

harm to” Child was necessary under the circumstances of this

case. See id. § 30-3-32(2)(b).

¶10 The second section Babbitt relies on, section 30-3-34,

provides that the statutory minimum parent-time schedule is

presumed to be in the best interests of a child “unless a parent

can establish otherwise by a preponderance of the evidence that

more or less parent-time should be awarded based upon any” of

fourteen specific criteria or “any other criteria the court

determines relevant to the best interests of the child.” Id. § 30-3-

34(2) (2013). “As to the ultimate conclusion of restricted

visitation, we accord the trial court broad discretion.” Peterson v.

Peterson, 818 P.2d 1305, 1308 (Utah Ct. App. 1991). “So long as

that discretion is exercised within the confines of the legal

standards we have set, and the facts and reasons for the decision

are set forth fully in appropriate findings and conclusions, we

will not disturb the resulting award.” Id. (citation and internal

quotation marks omitted).

¶11 The trial court found that Babbitt’s “parent-time has not

taken place for [an] extended period of time and [Child] lacks an

appropriate bond with [Babbitt] for minimum statutory parent-

time to apply.” The court also found that Babbitt had engaged in

behavior indicating his intent to kidnap Child, that he had

previously been found in contempt for secretly feeding Child

dairy-based formula in defiance of a court order, and that he had

made no attempt to visit Child for nearly a year after Brown

moved to Arizona. Further, the court found that Babbitt has at

least three other children with whom he has no relationship, that

he has been jailed multiple times for failing to pay child support,

and that he had apparently deliberately failed to exercise parent-

time with Child in order to build a custodial-interference case

against Brown. These findings are adequate to support the trial

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court’s decision to limit Babbitt’s parent-time.1 To the extent that

Babbitt challenges the evidence supporting these findings, he

has failed to carry his burden to demonstrate that the findings

were clearly erroneous. See supra ¶¶ 6–7.

III. Constitutional Issues

¶12 Finally, Babbitt argues that the trial court violated his due

process rights and the “open courts” provision of the Utah

Constitution by refusing to allow him to introduce evidence at

the hearing on his rule 52(b) motion that Brown was not living in

Arizona at the time of trial as she claimed. This issue is moot

because Babbitt has since been given the opportunity to present

this evidence in a hearing on his petition to modify the decree of

divorce; the trial court determined that the move did not occur

until after trial and that, in any event, it did not impact the

decree of divorce. See generally Ellis v. Swensen, 2000 UT 101,

¶ 25, 16 P.3d 1233 (“A case is deemed moot when the requested

judicial relief cannot affect the rights of the litigants.” (citation

and internal quotation marks omitted)). Because the issue is

moot, we need not consider it further.

IV. Conclusion

¶13 In sum, Babbitt has failed to establish that the evidence

was insufficient to support the trial court’s factual findings or

that those findings were inadequate to support the trial court’s

legal conclusions. Accordingly, we affirm.

1. Because we determine that the findings were adequate, we

need not consider Babbitt’s argument that the court’s failure to

make adequate findings violated his constitutional rights.

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