2023 UT App 137

THE UTAH COURT OF APPEALS

MARCUS JAMES LOBENDAHN,

Appellant and Cross-appellee,

v.

LEEYEN MOEVAI LOBENDAHN,

Appellee and Cross-appellant.

Opinion

No. 20210278-CA

Filed November 16, 2023

Fourth District Court, Provo Department

The Honorable Thomas Low

No. 164400262

Luke A. Shaw and Jill L. Coil,

Attorneys for Appellant

Julie J. Nelson, Daniel Ybarra, and Alexandra 

Mareschal, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES RYAN M. HARRIS and RYAN D. TENNEY

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Marcus James Lobendahn (Father) appeals the district 

court’s denial of his petition to modify the parties’ divorce decree. 

LeeYen Moevai Lobendahn (Mother)1 also appeals the court’s 

order denying her request for attorney fees incurred in 

responding to Father’s petition to modify. We affirm the district 

court’s order in all respects.

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

Sahim.
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BACKGROUND

¶2 The parties were married in 2008 in Hawaii. Following 

their marriage, the parties moved to Utah and had two children—

a daughter and a son (Son). In May 2015, Father moved to New 

Jersey for employment purposes, and Mother and the children 

followed a little while later. Shortly after Mother arrived in New 

Jersey, Father asked Mother for a divorce and filed for a divorce 

in Utah. Mother suggested that the children live with Father in the 

marital apartment while she rented a separate place and cared for 

the children while Father was at work. Father declined the offer 

and advised Mother that she and the children should move back 

to Utah, which they did. The parties’ divorce was finalized 

through a stipulated decree in Utah in early 2016 while Father still 

lived in New Jersey. The decree awarded the parties joint legal 

and physical custody of the children and Father parent-time 

under section 30-3-37 of the Utah Code with additional time 

during certain breaks.

¶3 Father moved back to Utah in the fall of 2016, and Mother 

allowed him parent-time every other weekend, similar to the 

schedule provided in section 30-3-35 of the Utah Code. In 2017, 

Father filed a petition to modify based on his relocation, and the 

parties resolved the petition through a stipulation modifying the 

decree of divorce. Based upon their agreement, Father would 

exercise parent-time as provided in section 30-3-35 until he moved 

within fifteen miles of Mother’s residence in Utah County, at 

which time his parent-time would increase pursuant to the 

schedule described in section 30-3-35.1, with some modifications. 

Father did not move within fifteen miles of Mother and the 

children at that time but remarried and moved to his wife’s 

residence in Salt Lake County. Even so, Mother allowed Father to 

exercise increased parent-time.

¶4 Mother sent a letter to Father in March 2018, notifying him 

of her intent to remarry and relocate with the children to 
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Washington state. A few weeks later, Father notified Mother that 

he had signed a lease for an apartment in an area within fifteen 

miles of her residence in Utah County. Father continued to reside 

with his wife in Salt Lake County but would stay at the apartment 

when exercising parent-time with the children. Thereafter, Father 

filed a motion to restrain Mother from relocating, which the court 

denied, concluding that Mother’s move to Washington was in the 

best interest of the children. Mother remarried and moved to 

Washington in the summer of 2018.

¶5 While the parties were litigating Mother’s relocation, 

Father filed a second petition to modify. Father argued that he 

should be awarded primary physical custody of the children, who 

should live with him in Utah, and that Mother should be awarded 

parent-time under section 30-3-37 of the Utah Code. Father’s 

petition alleged that Mother had not been entirely truthful in 

describing the reasons for her relocation, that the children 

struggled in school upon moving to Washington, that Mother had

been evasive about Father’s proposal to relocate to Washington to 

live close to the children, that Mother interfered with his parenttime since she had relocated, that Mother had been uncooperative 

in planning the children’s travel, and that Mother interfered with 

Father’s participation in Son’s baptism. Father also requested that 

a custody evaluator be appointed to make recommendations 

about what custodial arrangement would be in the best interest of 

the children, and the court granted that request.

¶6 The court appointed a custody evaluator (Evaluator), who 

began her evaluation in July and completed her work in 

November 2019. Evaluator interviewed the parties, their 

respective spouses, and Son, and she observed the children with 

both parents in their homes. At the time Evaluator conducted her 

evaluation, the children had lived in Washington with Mother for 

approximately one year. Evaluator delivered her 

recommendations to the parties at a settlement conference in 

April 2020, and completed her report five months later. Evaluator 
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recommended that the parties continue to share joint physical and 

legal custody but that the children should relocate back to Utah. 

Evaluator recommended that if Mother did not return with the 

children, Father should have primary physical custody with 

statutory visitation for Mother. Later, at the trial on Father’s 

petition to modify, Evaluator advised that in her opinion—while 

both parents shared a close, positive relationship with the 

children and Mother had been the children’s primary caretaker 

for their entire lives—Mother did not truly support the children’s 

relationship with Father and the broad benefit of having access to 

Father outweighed the potential risk that a second relocation 

adjustment would be hard for the children. And she 

acknowledged that her relocation recommendation was based on 

her understanding that if the court ordered the children to 

relocate back to Utah, Mother would move back to Utah as well. 

Evaluator also conceded that by the time of trial, the children had 

lived in Washington for two-and-a-half years and that the delay 

between her evaluation and the trial could be significant. She 

agreed that “some of the facts that [she] relied on to make [her] 

determinations are now out of date.” She agreed that the children

had probably changed and matured emotionally, psychologically, 

socially, and physically and that she had not had any contact with 

the children in more than a year and a half.

¶7 The court held a trial in March 2021 on Father’s petition to 

modify. Father’s petition was based on his contention that

Mother’s move to Washington was selfishly motivated and 

harmed the children and that Mother had failed to facilitate 

Father’s role in the children’s lives and had excluded him from

decision-making. Father testified about particular instances that, 

in his view, demonstrated Mother’s inability to co-parent and 

unwillingness to facilitate his role in the children’s lives. These 

included:

• Son’s difficulty in school after the relocation and 

resultant disputes between the parties about whether to 
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move him to a different classroom or have him tested 

for autism;

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

event;

• Mother’s apparent unwillingness to commit to living in 

Washington for the long term when Father was 

contemplating relocating there to be closer to the 

children;

• Father’s participation in obtaining passports for the 

children so they could visit Mother’s ill father in Tahiti

and Father’s contention that he did not intend to use 

these circumstances to coerce Mother into moving back 

to Utah; and

• Mother’s alleged interference with Father’s visitation in 

February 2019.

¶8 Mother testified to her version of the events and issues 

raised in Father’s testimony. Specifically, Mother testified:

• That her decision to move from Utah was not to get 

herself and the children away from Father;

• That she addressed Son’s difficulties in school 

following the relocation and how she wanted to have 

him tested for autism as recommended by his teacher 

but Father did not want the school to do any testing;

• That Son’s school difficulties had mostly been resolved 

by the time of trial and that his recent less-than-stellar 

report card had more to do with remote learning than 

continued transition issues;
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• That given Son’s his age and stage of development, she 

believed it was appropriate to let him choose who 

would baptize him and where the baptism would take 

place and that Mother never interfered with Father’s 

wish to perform the baptism;

• That Father caused a big scene before the baptism

ceremony, which Son overheard, and Father demanded

that he perform both the baptism and the confirmation;

• That when Father considered moving to Washington 

and asked Mother to commit to remaining in the area, 

Mother did not think it was wise to promise Father that 

she would live in Washington forever because of the 

constant litigation she had already experienced over 

custody;

• That the conflict that arose when Mother tried to obtain 

passports for the children in 2018 to visit her father in 

Tahiti after he had been diagnosed with cancerrequired 

her to file an order to show cause in December 2019 to 

compel Father to complete an affidavit and sign the 

passport applications, which he eventually did, but the 

children’s passports did not arrive in time for them to 

travel to Tahiti before Mother’s father passed away; and

• That Father does a good job keeping up with and 

supporting the children’s interests.

¶9 At the conclusion of the trial, Mother asked the court to 

award her attorney fees.

¶10 In its written ruling issued after the trial, the court 

addressed Mother’s alleged failure to facilitate Father’s role in the 

children’s lives. Regarding Son’s baptism, the court found that 

Father had adduced no evidence demonstrating that Mother had 
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broached the subject of baptism with Son in an attempt to create 

contention, or that Son had suffered any psychological harm from 

Mother’s actions. The court found, however, that the evidence

admitted “demonstrates poor judgment on Father’s part,” that the 

only evidence of conflict surrounding the baptism was created by 

Father himself, and that the “only harm [Son] suffered was having 

to overhear Father yelling at [Son’s] bishop . . . inside the closed 

bishop’s office.”

¶11 Regarding the circumstances surrounding obtaining the 

children’s passports, the court was extremely critical of Father’s 

actions. Among other things, it found that Father’s actions were 

“senselessly cruel” and “among the most reprobate [the] court 

[had] encountered in a domestic relations case.” It faulted Father 

for using “the imminent death of a grandparent as a bargaining 

chip” and found that his behavior “demonstrates that his control 

over the children’s welfare must be reduced.”

¶12 The court also addressed Mother’s move to Washington, 

finding that the move did not cause the children harm or interfere 

with the parties’ ability to co-parent. Specifically, the court 

determined that both parents had chosen to live in places that did 

not prioritize proximity to the other parent—Mother moving to 

Washington to remarry and attend school after living in Utah for 

more than three years and Father remaining in New Jersey while 

Mother and the children returned to Utah and then moving to Salt 

Lake County with his wife rather than moving to a place within 

fifteen miles of the children (until Mother indicated she would be 

relocating). Moreover, the court noted that although Father is 

“untethered,” in that he is employed for a company that allows 

him to work from home and he could live and work anywhere, he 

is unwilling to move unless Mother commits to remain in 

Washington, which she had not done because she eventually 

wants to work as a pharmacist and may need to move for that 

career. The court found that Father’s decision to remain in Utah 
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despite his ability to move reflects his choice not to live close to 

the children.

¶13 As far as the children’s best interest in staying in their 

current placement, the court found that Mother’s spouse has an 

extensive family network with whom the children have grown 

close and share a Pacific Islander heritage. Besides a strong family 

connection, the children also have close friends in the area, which 

the court found to be good for the children. And due in part to the 

length of time spent in Washington, the court found that 

“[o]verall, the children’s social network is stronger in 

Washington” than in Utah. The court also determined that no 

evidence supported Father’s assertion that the move to 

Washington caused Son to have behavioral issues at school. If 

anything, Father’s refusal to allow Son to be tested for autism or 

to allow him to change classrooms when he started having trouble 

has potentially caused continuing suffering for Son and created 

stalemates between the parents that Father chose to address in the 

courts. Father’s proclivity for litigation, which he can afford and 

which the court found bordered on harassment, caused harm to 

the children, created unpredictability, and demonstrated lessresponsive parenting.

¶14 The court found that both Mother and Father have capacity 

to parent and to co-parent and have excellent parenting skills. But 

the court determined that Mother “exhibits greater respect of 

Father’s role than Father does of Mother’s.” Specifically, the court 

found that “[w]hen the children ask Mother a question on which 

Father should be consulted, she tells them ‘I’ll talk to your dad 

about that and we’ll decide together.’” The court recognized that 

the children’s bond with Father is very strong, but it agreed with 

Evaluator that “the children are more bonded with Mother in light 

of being under her primary care for their entire lifetimes.”

¶15 The court analyzed the custody factors found in section 30-

3-10(2) of the Utah Code and made the following determinations:
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• Both parents demonstrate an appropriate 

understanding of, and responsiveness to, the 

developmental needs of the children, but Mother’s 

openness to the advice and assistance of professionals 

exceeds Father’s.

• Both parents have an excellent capacity to parent and 

co-parent and endorse the other’s role in the presence 

of the children. Except for Mother’s use of 

inappropriate terms in some of her written 

communication (which the court believed was on the 

mend), “both parents appropriately communicate with 

the other, encourage the sharing of love and affection, 

and exhibit a willingness to allow frequent and 

continuous contact with the other parent.” However,

Mother exhibits a greater respect for Father’s role in the 

children’s lives than Father does for Mother’s.

• Father has relinquished both custody and parent-time 

in the past.

• Both parents desire custody and time with the children. 

Mother has been the primary caretaker and Father has 

made it a priority to maintain good contact with the 

children. But “Mother’s commitment to the care and 

custody of the children exceeds Father’s.”

• Both parents have always cared for the children 

financially and are financially responsible, but “Mother 

has expressed more constant and less evasive financial 

responsibility than Father.”

• The children enjoy a strong social and familial network 

in Washington with their stepfather and his side of the 

family and have close friends there. The children also 

enjoy the close proximity of their stepmother and her 
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20210278-CA 10 2023 UT App 137

family and their maternal aunt and grandmother in 

Utah. Overall, the children’s social network is stronger 

in Washington.

• The children are more bonded to Mother because she 

has always been their primary caretaker.

• The children have both benefitted and suffered from 

the sharing of parental responsibilities. Father is very 

involved and committed to his role. “But Father’s vetopower over decisions regarding the children’s health, 

education, and welfare” has prevented Son from being 

tested for autism, prevented Father from honoring 

Son’s preferences at his baptism, and “prevented the 

children from traveling to see their dying grandfather 

in Tahiti.”

• The parents are generally able to cooperate with each 

other and make decisions jointly but struggle to reach 

agreement on significant decisions in the children’s best 

interest and these frequent stalemates harm the 

children. Specifically, the court noted that the parents 

could not communicate effectively to make Son’s 

baptism conflict-free and they could not agree on how 

to address Son’s difficulties in school after the 

relocation or obtain passports for the children. “Given 

her less affluent status, Mother usually surrenders in 

the face of disagreement because she cannot afford to 

take the matter further. Father, however, has 

substantial funds at his disposal, and has exhibited the 

ability and willingness to press his concerns in the 

courts.”

• Both parents ensure that the children are protected 

from conflict, except for Father’s refusal to complete the 

passport paperwork to allow the children to travel to 
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Tahiti, which harmed the children, and allowing Son to 

overhear the conflict over his baptism.

¶16 After weighing the evidence and the statutory factors, the 

court concluded that granting Father’s petition and relocating the 

children back to Utah would not be in their best interest. The court 

found that the children are doing well in their current 

circumstances and that they are primarily bonded with Mother as 

their primary caretaker. “Father has presented no evidence that 

removing primary custody from Mother would be in the 

children’s best interests. . . . [Rather,] doing so would be harmful 

to the children.” The court determined that “the children are 

happy in Washington, that the parties have successfully mitigated 

the effects of distance on parent-time, that Father continues to 

enjoy a healthy relationship and strong bond with the children, 

and that the current custody arrangement is working well.” The 

court noted that the trial evidence “establish[ed] that [Father] and 

Mother have been extraordinarily successful in managing the 

geographical distance between them,” “that the children do not 

grasp the gravity of the distance,” and that “all evidence indicates 

that the children are happy, thriving, and well-adjusted in the 

current circumstances.” The court found that none of the statutory 

custody factors favored a change in custody.

¶17 Accordingly, the court denied Father’s petition to modify 

custody and his request that he be awarded primary custody if 

Mother did not relocate to Utah. The court ordered joint legal 

custody to continue but awarded Mother final decision-making 

authority as to the children’s health, education, and welfare. It 

also ordered that Mother “should be designated as the parent 

with the sole legal right to determine the residence of the 

children.” The court denied Mother’s request for an award of 

attorney fees because (1) she presented no evidence of her need 

for such an award and (2) even though Mother had ultimately 

prevailed, Father’s petition was not frivolous because it had been 

supported by Evaluator’s recommendation for a change in 
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custody. But the court then explained that it chose to disregard 

the custody evaluation because it was “outdated and fail[ed] to 

adequately address the evidence presented at trial.”

ISSUES AND STANDARDS OF REVIEW

¶18 Father now appeals the court’s denial of his petition to 

modify, including its decision to reject Evaluator’s 

recommendation. “We review custody determinations under an 

abuse of discretion standard, giving the district court broad 

discretion to make custody awards.” Hinds v. Hinds-Holm, 2022 

UT App 13, ¶ 26, 505 P.3d 1136 (quotation simplified). We will not 

disturb a district court’s findings of fact unless they are clearly 

erroneous. See Robertson v. Robertson, 2016 UT App 55, ¶ 5, 370 

P.3d 569. And “[a]lthough a district court is not bound to accept a 

custody evaluator’s recommendation, the court is expected to 

articulate some reason for rejecting that recommendation.” R.B. v. 

L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137.

¶19 Mother cross-appeals and challenges the court’s denial of 

her request for attorney fees. We review a district court’s attorney 

fee determination for an abuse of discretion. Jensen v. Jensen, 2009 

UT App 1, ¶ 7, 203 P.3d 1020.

ANALYSIS

¶20 Father argues the district court erred in denying his 

petition to modify. Father’s challenge comprises two parts. First, 

Father takes issue with the court’s weighing of the evidence and 

its associated factual findings and conclusions. Second, Father 

challenges the court’s decision to reject Evaluator’s 

recommendation. We address each of Father’s arguments in turn. 

Lastly, we address Mother’s cross-appeal concerning the denial of 

her request for attorney fees.
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I. The Evidence Supports the District Court’s Determination to 

Deny the Petition to Modify

¶21 Father’s first argument on appeal is that the district court 

ignored the evidence presented at trial that supported Father’s

position that it was in the best interest of the children to move 

them back to Utah and that he should be awarded primary 

custody if Mother did not relocate with them. Father also argues 

that the court viewed the evidence presented from a biased 

perspective. In the context of determining custody, the district 

court is to analyze the best interest of the children through the 

custody factors outlined in section 30-3-10(2) of the Utah Code. 

Generally, it is within the court’s discretion to consider each 

custody factor and accord each factor the appropriate weight. See

Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. The 

“court’s discretion stems from the reality that in some cases the 

court must choose one custodian from two excellent parents, and 

its proximity to the evidence places it in a more advantaged 

position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209, 

1214 (Utah 1996). Thus, a custody determination “may frequently 

and of necessity require a choice between good and better.” Hogge 

v. Hogge, 649 P.2d 51, 55 (Utah 1982).

¶22 While the district court is accorded discretion in weighing 

the statutory custody factors, “it must be guided at all times by 

the best interests of the child,” see Tucker, 910 P.2d at 1214, and it 

“must set forth written findings of fact and conclusions of law 

which specify the reasons for its custody decision,” see id. at 1215.

“Whenever custody is contested, the district court must provide 

the necessary supporting factual findings that link the evidence 

presented at trial to the child’s best interest and the ability of each 

parent to meet the child’s needs.” K.P.S. v. E.J.P., 2018 UT App 5, 

¶ 27, 414 P.3d 933.

¶23 Moreover, the factual findings of the district court “will not 

be disturbed unless they are clearly erroneous” by being “in 
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conflict with the clear weight of the evidence.” Kimball v. Kimball, 

2009 UT App 233, ¶ 14, 217 P.3d 733 (quotation simplified). And

“the existence of conflicting evidence is not sufficient to set aside 

a [district] court’s finding.” Bond v. Bond, 2018 UT App 38, ¶ 6, 420 

P.3d 53 (quotation simplified). Rather, “to successfully challenge 

a [district] court’s factual findings on appeal, the appellant must 

overcome the healthy dose of deference owed to factual findings 

by identifying and dealing with the supportive evidence and 

demonstrating the legal problem in that evidence, generally 

through marshaling the evidence.” Taft v. Taft, 2016 UT App 135, 

¶ 19, 379 P.3d 890 (quotation simplified).2 Thus, a party 

challenging the sufficiency of the evidence to support a custody 

decision will almost certainly fail to carry its burden of persuasion 

on appeal if it fails to marshal. See State v. Nielsen, 2014 UT 10, ¶ 42, 

326 P.3d 645. In addition, a district court “may make findings, 

credibility determinations, or other assessments without detailing 

its justification for finding particular evidence more credible or

persuasive than other evidence supporting a different outcome.”

Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation 

simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

2. As this court stated in Kimball v. Kimball, 2009 UT App 233, 217 

P.3d 733:

After all, it is the [district] court’s singularly 

important mission to consider and weigh all the 

conflicting evidence and find the facts. No matter 

what contrary facts might have been found from all 

the evidence, our deference to the [district] court’s 

pre-eminent role as fact-finder requires us to take 

the findings of fact as our starting point, unless 

particular findings have been shown, in the course 

of an appellant’s meeting the marshaling 

requirement, to lack legally adequate evidentiary 

support.

Id. ¶ 20 n.5.
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¶24 On appeal, Father asserts that the district court ignored 

evidence that was presented to Evaluator and to the court at trial. 

But on appeal, Father has not wrestled with the evidence that 

supports the court’s conclusion that most of the custody factors 

favor Mother, and he has made no attempt to marshal the 

evidence that supports the court’s factual findings. Father “clearly 

views the evidence as compelling a different outcome, but it is not 

within our purview to engage in a reweighing of the evidence, 

and [Father] has not demonstrated that the evidence underlying 

the [district] court’s findings is insufficient.” See id. ¶ 9 (quotation 

simplified). We address Father’s specific challenges to the court’s 

conclusions below.

A. Father’s relinquishment of parent-time with the children 

by voluntarily choosing not to live close to them

¶25 Father complains that the district court misunderstood and 

ignored the evidence when it determined that Father had made 

decisions that minimized his parent-time. But Father has not 

addressed the evidence the court chose to credit nor 

demonstrated how that evidence was insufficient for the court to

conclude that Father had not prioritized living close to the 

children to maximize his parent-time. That is, the court found the 

following evidence convincing:

• While the family lived in New Jersey in 2015, and after 

Father announced he wanted a divorce, Mother offered 

to move out of their apartment so the children could 

remain with Father. Father declined this offer and 

advised Mother to return to Utah with the children.

• Father remained in New Jersey for over a year before 

moving back to Utah.

• After the parties mediated a settlement in August 2017 

wherein Father could exercise more parent-time if he 
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moved within fifteen miles of Mother’s residence, he 

did not do so. Instead, Father remarried in 2018 and 

moved to his wife’s residence in Salt Lake County 

(Mother’s residence was in Utah County).

• Father rented an apartment within fifteen miles of 

Mother’s residence in Utah County only after she had 

announced her intention to relocate to Washington.

• Father is employed by a company that allows him to 

work from home and his wife does not work outside 

the home, so Father’s employment does not necessarily 

tie him to Utah. Father has even shopped for houses in 

Washington but requires a commitment from Mother 

that she will remain there long term before he will 

move.

• Evaluator opined that despite Father’s valid 

professional and financial motives for staying in New 

Jersey and then in Utah, Father failed to capitalize on 

the opportunity for more frequent parent-time by living 

close to the children.

¶26 Father appears to fault the court for not considering

dispositive his testimony that he sought and exercised more than 

the minimum parent-time once he returned to Utah in 2016. 

Father asserts that this evidence disproves the court’s 

determination that Father had not prioritized his time with the 

children. But “Father [doing] what was within his rights . . . to 

exercise the expanded parent-time” was not persuasive to the 

court given the evidence listed above. And Father has not 

challenged any of the factual findings that support the court’s 

conclusion that he did not make choices for his living situation to 

be closer to the children. Father simply challenges how the court

considered the evidence that supports his position.
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¶27 The existence of conflicting evidence in the record is not 

sufficient to set aside a district court’s findings. See Nebeker v. 

Orton, 2019 UT App 23, ¶ 16, 438 P.3d 1053. “The pill that is hard 

for many appellants to swallow is that if there is evidence

supporting a finding, absent a legal problem—a fatal flaw—with 

that evidence, the finding will stand, even though there is ample 

record evidence that would have supported contrary findings.”

Kimball, 2009 UT App 233, ¶ 20 n.5 (quotation simplified). The 

district court’s “mission” is “to consider and weigh all the 

conflicting evidence and find the facts.” Id. Thus, even though 

“contrary facts might have been found from all the evidence,” this 

court defers to the district court’s “pre-eminent role as factfinder,” and we “take the findings of fact as our starting point, 

unless particular findings have been shown . . . to lack legally 

adequate evidentiary support.” Id. Because Father has not directly 

challenged any of the court’s subsidiary findings supporting its 

determination that Father made decisions that minimized, rather 

than maximized, his parent-time, we will not reweigh the 

evidence.

B. The circumstances surrounding Son’s baptism

¶28 Father complains that the issue surrounding Son’s baptism 

“is an issue of legal custody . . . [and] should [have been] 

discussed between the parents before decisions [were] made.” 

Father asserts that the district court committed legal error when it 

failed to rule that a decision about who will perform a child’s 

baptism is a major parenting decision that should not be left up to 

a child. Father also takes issue with the court crediting Mother’s 

testimony about the dispute that occurred before the baptism—

and not Father’s testimony that he did not agree with the accounts 

that he was yelling or losing his cool—to determine that the 

circumstances of the event demonstrated poor judgment on 

Father’s part and that Father’s actions caused Son harm.
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¶29 On the facts of this case, we cannot fault the district court

for its determination that who performs the various parts of a 

child’s religious ceremonies within the shared religious tradition 

of both parents (as opposed to whether the ceremonies will be 

performed at all) is not a major parenting decision requiring the 

agreement of both parents. Father cites no authority for the 

proposition that the decision about who performs a religious 

ceremony is equivalent to decisions concerning a child’s medical 

care, school attendance, or overall religious practice. Nor has 

Father challenged any of the factual findings that support the 

court’s conclusion that Father had failed to demonstrate that 

Mother’s decision to allow Son to have “input regarding his own 

baptism was an unhealthy or unwise parenting decision.” Thus, 

Father cannot show the court erred in considering this decision to 

be something other than a major parenting decision. And while 

we understand that Father is unhappy with the court’s conclusion 

that Father’s behavior before Son’s baptism showed poor 

judgment on his part rather than ineffective co-parenting on 

Mother’s part, the evidence in the record supports the court’s 

conclusion that Mother’s parenting regarding the baptism was 

not problematic, and we will not reweigh the evidence.

C. The circumstances surrounding having Son tested for 

autism

¶30 Father next takes issue with the court’s findings about 

whether the children have benefitted from the parties’ sharing of 

parenting responsibilities and about the abilities “of the parents 

to give first priority to the welfare of the [children] and reach 

shared decisions in the [children’s] best interest.” See Utah Code 

§ 30-3-10.2(2)(b). Among other things, in determining that Mother 

should be designated the final decision-maker as to the children’s 

health, education, and welfare, the court found that Father 

exhibited an “injudicious use of his veto power over decisions 

relating to the children’s health” and had “evidenced [a] tendency 

to act contrary to the children’s interests and to use those interests 
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as leverage against Mother.” But Father’s complaint that the 

evidence demonstrated that he suggested they not rush into 

testing Son for autism rather than that he objected to the testing 

does not diminish the court’s determination that “Father’s vetopower over decisions regarding the children’s health, education, 

and welfare [] prevented [Son] from being tested for autism at a 

time when educational professionals believed the test would be 

helpful to address his needs.” Thus, we agree with Mother that 

“[e]ven if the court should have used the word ‘delayed’ rather 

than ‘prevented’” in its finding, Father has not shown how the 

court’s decision to award Mother final decision-making authority 

was an abuse of discretion or legal error.

D. The circumstances surrounding obtaining the children’s 

passports

¶31 Father next challenges the court’s view of the 

circumstances surrounding Mother’s attempts to obtain passports 

for the children in time to visit her cancer-stricken father in Tahiti 

in 2019. Father argues that the court’s pointed and direct 

comments about this incident are overly aggressive and suggest 

that this evidence was the “ultimate basis for [the court’s] ultimate 

conclusion.” Father asserts that he did not interfere with the 

passport applications or attempt to condition his facilitation of the 

passports upon Mother’s promise to return to Utah and suggests 

that Mother was at fault for not obtaining the passports in time.

But, once again, on appeal, Father selectively highlights the 

evidence he submitted at trial, asserts that the evidence supports 

a different outcome, and criticizes the court for not crediting his 

testimony rather than Mother’s. It is not this court’s “purview to 

engage in a reweighing of the evidence.” Shuman v. Shuman, 2017 

UT App 192, ¶ 9, 406 P.3d 258 (quotation simplified), cert. denied, 

412 P.3d 1257 (Utah 2018). In fact, when “a foundation for the 

court’s decision exists in the evidence, [we] may not engage in a 

reweighing of the evidence.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 

435. On appeal, this court will look to whether the district court’s 
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20210278-CA 20 2023 UT App 137

decision is supported by the evidence and in cases where the 

appellant has “merely point[ed] to evidence that might have 

supported findings more favorable to them” rather than 

“identify[ing] flaws in the evidence relied on by the [district] court 

that rendered” the court’s findings clearly erroneous, we will not 

reverse. Shuman, 2017 UT App 192, ¶ 8 (quotation simplified).

Because the court’s decision is supported by the record and Father 

has identified no fatal flaws in the evidence upon which the court 

relied, we will not reweigh the evidence.

E. The reasons and representations given for Mother’s 

relocation to Washington

¶32 Father next challenges the court’s view of Mother’s 

relocation. Father appears to attack Mother’s honesty and 

credibility by asserting that the reasons she gave for her move to 

Washington were not true. But Father did not appeal the court’s 

order approving Mother’s relocation, and by not directly 

challenging the district court’s findings about Mother’s move, 

Father has failed to persuade us that the court’s determination 

that “Mother’s move to Washington was not contrary to the 

children’s interests” was an abuse of discretion or legal error since 

it “is undisputed that the children are thriving and happy there”.

F. The district court’s custody factor findings

¶33 Father challenges the court’s determination that evaluation 

of the statutory custody factors favored denying his petition to 

modify and awarding Mother more decision-making authority. 

Specifically, Father argues that the court’s analysis of the custody 

factors is not supported by the evidence with regard to (1) the 

parents’ commitment to the care and custody of the children,

(2) not disrupting a custody arrangement where the children are 

happy and well-adjusted in their current circumstances, (3) the 

respect each parent affords the other parent’s role, (4) the parents’ 
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20210278-CA 21 2023 UT App 137

ability to make decisions jointly, and (5) whether it was better to 

remain in Washington versus returning to Utah.

¶34 But Father does not tie his argument to a particular custody 

factor or explain how the court’s findings in these areas are 

critically important to the overall custody determination. Nor 

does Father explain how the court’s findings on these factors are 

against the clear weight of the evidence. “Generally, it is within 

the [district] court’s discretion to determine . . . where a particular 

factor falls within the spectrum of relative importance and to 

accord each factor its appropriate weight.” Hudema v. Carpenter, 

1999 UT App 290, ¶ 26, 989 P.2d 491. “While the district court is 

accorded discretion in weighing these factors, it must be guided 

at all times by the best interests of the child.” Hinds v. Hinds-Holm, 

2022 UT App 13, ¶ 30, 505 P.3d 1136 (quotation simplified).

¶35 Father’s argument that the court disregarded the evidence 

that supports his preferred evaluation of the statutory custody 

factors is not persuasive. It is not this court’s role to reweigh the 

evidence to see if we would reach a different conclusion from that 

of the district court. Father has not demonstrated that the court’s 

evaluation of the custody factors lacks evidentiary support or that 

any finding regarding each factor is against the clear weight of the 

evidence. Given this, we cannot say that the court abused its 

discretion or committed legal error in concluding that “none of 

the factors favor a change in custody” or that “[t]he critically 

important factors—bonding and continuity of placement—

strongly favor leaving primary custody with Mother.”

¶36 In sum, Father has not directly challenged any of the 

court’s specific findings supporting the determinations listed 

above. Indeed, he simply highlights evidence he claims the 

district court ignored. Without a direct challenge to any specific 

finding, we consider the district court’s findings as established 

and will not reweigh the evidence.
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20210278-CA 22 2023 UT App 137

II. The District Court Did Not Abuse Its Discretion When It 

Rejected Evaluator’s Recommendation

¶37 Father contends that the district court erred in rejecting the 

recommendations and testimony of Evaluator. “Courts are not 

bound to accept the testimony of an expert and are free to judge 

the expert testimony as to its credibility and its persuasive 

influence in light of all of the other evidence in the case.” Barrani 

v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation 

simplified). “This is because . . . the fact-finder is in the best 

position to judge the credibility of witnesses and is free to 

disbelieve their testimony . . . even if that testimony comes from 

an expert witness.” Woodward v. Lafranca, 2016 UT App 141, ¶ 13, 

381 P.3d 1125 (quotation simplified), cert. denied, 384 P.3d 570

(Utah 2016). These principles apply to a court’s assessment of the 

opinions offered by a custody evaluator. Indeed, a “district court 

is not bound to accept a custody evaluator’s recommendation,” 

but if a court chooses to reject the evaluator’s opinion, it “is 

expected to articulate some reason for” doing so. See R.B. v. L.B., 

2014 UT App 270, ¶ 18, 339 P.3d 137. In this case, while the court 

could have perhaps more fully explained its reasons for rejecting 

Evaluator’s recommendations, in our view the court had 

sufficient reasons for doing so and adequately explained itself.

¶38 Father first contends that the district court erroneously 

rejected Evaluator’s recommendations because the court had 

unreasonable expectations of Evaluator, that it was incumbent on 

the court to solicit further information from Evaluator through 

questioning at trial if the court thought her report was insufficient, 

and that the court should have accepted Evaluator’s 

recommendation without question because the court did not 

contest her qualifications and admitted her report into evidence

without objection. But the record does not support Father’s 

complaints, and he does not support his argument with legal 

citation. The court invited Evaluator to augment her report at trial 

by “putt[ing] in context or explain[ing] or add[ing] flesh to the 
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20210278-CA 23 2023 UT App 137

bones of the report,” and the court dialogued at length with 

Evaluator during direct questioning and cross-examination. 

Father’s complaint that the court discouraged additional 

testimony or additional explanation from Evaluator because it 

stated during her examination that “[n]ow that I have received the 

report, if she’s just going to read it, maybe there’s more effective 

ways for her to spend her time” is not compelling, especially 

because Father’s counsel agreed to “expedite the process a bit” by 

then focusing on Evaluator’s recommendations. Thus, Father 

does not persuade us that the court abused its discretion or 

committed legal error in choosing not to ask Evaluator further 

questions.

¶39 Next, Father takes issue with the court’s decision to reject 

Evaluator’s recommendation because it was “outdated” at the 

time of trial.3 But Father fails to acknowledge that while all the 

statutory custody factors are equally important, “[a]t the critically 

important end of the spectrum, when [a] child is thriving, happy, 

3. In addition to rejecting Evaluator’s report for being outdated, 

the court rejected the report because it “fail[ed] to adequately 

address the evidence presented at trial.” Specifically, the court 

noted that the report “mentions but glosses over Father’s sending 

the children away from New Jersey, choosing several times 

thereafter not to live near the children (including now), 

preventing them from traveling to Tahiti, and declining to engage 

[Son] regarding his baptism.” Father takes issue with the court’s 

reasoning on each point, arguing that the court “did not agree 

with [Evaluator’s] expert view and analysis of the evidence.” But 

his argument is limited to merely explaining his view of why each 

of these events happened and why Evaluator did not find them 

important. Father does not show that the court’s view was 

unsupported by the evidence. And regardless of these stated 

reasons, the court’s decision to reject the report because it was 

outdated was entirely proper.
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20210278-CA 24 2023 UT App 137

and well-adjusted, lies continuity of placement.” Hudema v. 

Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Utah law requires 

courts to “give substantial weight to the existing joint legal . . . 

custody order when the child is thriving, happy, and welladjusted.” Utah Code § 30-3-10.4(2)(c). And here, the court relied 

heavily on continuity of placement as the basis for rejecting 

Evaluator’s report. The court found that the evidence presented 

at trial was “virtually unanimous” in establishing that the 

children were “happy, well-adjusted, and thriving under [their] 

current arrangement” and it rejected Evaluator’s contention that 

relocating the children back to Utah would not be that big of a 

deal because “[w]e don’t have a child . . . moving into a different 

developmental phase or a child with specific developmental 

needs.” Because the court heard the evidence on both sides and it 

explained why it was rejecting certain evidence, the court did not 

abuse its discretion or commit legal error. Thus, we see no 

infirmity in the court’s determination that Evaluator’s report was 

outdated by the time of trial.

¶40 We are, of course, sensitive to the emotional undercurrents 

giving rise to Father’s challenges on appeal. This appears to have 

been a very difficult case for both parties—both of whom love and 

care for their children. And we acknowledge the district court’s 

determination that both “parents are well suited to parent the 

children [who] are surrounded by an unusual amount of love on 

both sides of the family. . . . All children everywhere deserve to be 

loved as much as these children are.” But ultimately, the fact that 

Father disagrees with the court’s decision to deny his petition to 

modify does not render the district court’s findings inadequate or 

unsupported by the evidence, nor does it require an outright grant 

of custody in his favor. See Shuman v. Shuman, 2017 UT App 192, 

¶ 10, 406 P.3d 258, cert. denied, 412 P.3d 1257 (Utah 2018).

¶41 In sum, Father has failed to meaningfully address the 

evidence supporting the district court’s findings or persuasively 

demonstrate that those findings are against the clear weight of the 
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20210278-CA 25 2023 UT App 137

evidence or legally erroneous. We therefore affirm the district 

court’s denial of Father’s petition to modify custody and its

associated adjustment to the parties’ legal custody arrangement.

III. Mother’s Attorney Fees Request

¶42 Finally, we address Mother’s challenge to the district 

court’s denial of her request for attorney fees incurred in 

responding to Father’s petition to modify. Mother asserts 

entitlement to fees under two different statutes, but we reject both 

of her arguments.

¶43 First, Mother claims that the court should have awarded 

her fees pursuant to a statute authorizing a court to award fees in 

cases where the “action” was “filed or answered frivolously and 

in a manner designed to harass the other party.” See Utah Code 

§ 30-3-10.4(5). The court determined that whether the litigation 

was frivolous or filed with the intent to harass was “a very close 

call” but that Evaluator’s change-of-custody recommendation 

provided Father with at least some basis to file his petition. We 

agree. The district court has discretion to determine whether an 

action was filed frivolously or with an intent to harass, and we 

will not substitute our judgment for that of the district court 

unless the action it takes is so flagrantly unjust as to constitute an 

abuse of discretion. See Wall v. Wall, 700 P.2d 1124, 1125 (Utah 

1985). We discern no abuse of discretion in the court’s 

determination not to award fees under section 30-3-10.4(5) of the 

Utah Code.

¶44 Second, Mother claims that the court should have awarded 

her fees under a different statute, one that authorizes courts to 

order one party to pay fees to the other in order “to enable the 

other party to prosecute or defend the action.” See Utah Code § 30-

3-3(1). The court denied Mother’s request for fees under this 

statute based on its determination that Mother did not produce 

evidence of her financial need. When reviewing requests for 
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20210278-CA 26 2023 UT App 137

attorney fees in divorce proceedings, “both the decision to award 

attorney fees and the amount of such fees are within the [district]

court’s sound discretion.” Stonehocker v. Stonehocker, 2008 UT App 

11, ¶ 10, 176 P.3d 476 (quotation simplified). However, the party 

to be awarded attorney fees under this statute has the burden to 

prove (1) that the payee spouse has a financial need, (2) that the 

payor spouse has the ability to pay, and (3) that the fees requested 

are reasonable. See Dahl v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276.

¶45 Here, Mother argues that the district court erred in 

concluding that an award of fees was not warranted when it

determined that “Mother did not adduce any evidence of her need 

for an award of attorney’s fees under section 30-3-3(1).” Mother 

contends that there was evidence before the court to demonstrate 

her need and Father’s ability to pay. Specifically, Mother points to 

the parties’ stipulated order from 2017 that showed the parties’ 

incomes and the custody evaluation that reported the parties’ 

incomes in 2020. But Mother did not point to this evidence in 

connection with her fee request, and we do not think it is 

incumbent on a district court to comb through the record to find 

evidence of a party’s need. Rather, the party to be awarded fees 

has the burden to submit that evidence or at least point the court 

to that evidence and ask that the court utilize that evidence to 

determine need.

¶46 Accordingly, we affirm the district court’s conclusion that 

fees were not warranted in this case.

CONCLUSION

¶47 We conclude that the evidence supports the district court’s 

findings and conclusions that relocating the children back to Utah

would not be in the children’s best interest and supports the 

denial of Father’s petition to modify. We further conclude that the 
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20210278-CA 27 2023 UT App 137

district court did not abuse its discretion in denying Mother’s 

request for attorney fees. Affirmed.