Brown v. Babbitt
| Decision Date | 03 December 2015 |
| Docket Number | No. 20140918–CA.,20140918–CA. |
| Parties | Kelsey BROWN, Appellee, v. Anthony BABBITT, Appellant. |
| Court | Utah Court of Appeals |
Terry R. Spencer, Sandy, for Appellant.
J. Preston Stieff, Salt Lake City, for Appellee.
Memorandum Decision
¶ 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 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 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 express concern for Child while in Babbitt's care and thus to restrict Babbitt to less than the minimum statutory parent-time.
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, 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
¶ 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.
¶ 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 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...
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