Lay v. Lay

• Decision Date: 12 July 2018
• Docket Number: No. 20170230-CA,20170230-CA
• Citation: 427 P.3d 1221
• Parties: Brandon Christopher LAY, Appellant, v. Corinna Nicole LAY, Appellee.
• Court: Utah Court of Appeals

427 P.3d 1221

Brandon Christopher LAY, Appellant,

v.Corinna Nicole LAY, Appellee.

No. 20170230-CA

Court of Appeals of Utah.

Filed July 12, 2018

Steve S. Christensen, Salt Lake City and Clinton R. Brimhall, Attorneys for Appellant.

J. Brady Kronmiller and Amy G. Larsen, Attorneys for Appellee.

Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen and Ryan M. Harris concurred.

Opinion

POHLMAN, Judge:

¶1 Brandon Christopher Lay and Corinna Nicole Lay, now Corinna Nicole Gustafson, divorced in 2008. The divorce decree awarded the parties joint legal and physical custody of their minor daughter (Child). Gustafson was designated as Child's primary physical caretaker, and Lay was granted six out of every fourteen overnights for parent-time. Around 2011, the parties informally agreed to a new parent-time schedule due to conflicts with Lay's work schedule and Child's need for more stability. Under their agreement, Lay would have Child only on alternating weekends, Friday night through Sunday night. Although Lay's scheduling conflict was eventually resolved, the parties continued to operate under the revised parent-time schedule for approximately five years.

¶2 In 2015, the parties—for different reasons—each asked the district court to modify the divorce decree. The district court ordered that the parent-time schedule originally established in the divorce decree be followed during the summer months. For the school year, the court ordered that Lay would have Child only on alternating weekends but that his parent-time "should be Friday and Saturday nights only, not Sunday nights, to better accommodate school attendance."

¶3 Lay appeals, raising two main challenges. First, Lay contends that the district court misinterpreted the statute that provides for increased parent-time for the noncustodial parent and erred by not adopting the optional schedule described in that statute. Second, Lay contends that the district court exceeded its discretion and made legally inadequate findings regarding its decision to grant him "only alternating Friday and Saturday overnights during the school year instead of alternating Friday, Saturday, and Sunday overnights" and its decision to deny him midweek parent-time during the school year. We affirm with respect to Lay's first contention, but because we agree with Lay that the district court's findings are inadequately detailed, we remand for further proceedings.

STANDARDS OF REVIEW

¶4 We generally will not disturb the district court's parent-time determination absent a showing that the court has abused its discretion. See Wight v. Wight , 2011 UT App 424, ¶ 23, 268 P.3d 861. However, we review the district court's interpretation of a statute for correctness. Id. Likewise, "we review the legal adequacy of findings of fact for correctness as a question of law." Jacobsen v. Jacobsen , 2011 UT App 161, ¶ 15, 257 P.3d 478 (quotation simplified); see also Brown v. Babbitt , 2015 UT App 161, ¶ 5, 353 P.3d 1262 ("We review the legal sufficiency of factual findings—that is, whether the [district] court's factual findings are sufficient to support its legal conclusions—under a correction-of-error standard, according no particular deference to the [district] court." (quotation simplified) ).

ANALYSIS

I. The Statutory Optional Parent-Time Schedule

¶5 Lay first contends that the district court misinterpreted Utah Code section 30-3-35.1, which sets forth an optional parent-time schedule that provides more parent-time for the noncustodial parent than the default minimum amount. According to Lay, he satisfied his evidentiary burden under that statute, and the district court was therefore required to adopt that statute's optional parent-time schedule.¹

¶6 Each divorced parent "is entitled to and responsible for frequent, meaningful, and continuing access with the parent's child consistent with the child's best interests." Utah Code Ann. § 30-3-32(2)(b)(ii) (LexisNexis Supp. 2017). To that end, Utah Code section 30-3-35 sets a default minimum parent-time schedule "to which the noncustodial parent and the child [who is between five and eighteen years old] shall be entitled," id. § 30-3-35(2), unless "the court determines that Section 30-3-35.1 should apply" or a parent can establish "that more or less parent-time should be awarded," id. § 30-3-34(2). Under the default minimum schedule in section 30-3-35, the noncustodial parent is entitled to parent-time with the child during one weekday evening and on alternating weekends, which include Friday and Saturday overnights. See id. § 30-3-35(2)(a)(i), (2)(b)(i).

¶7 The Utah Code also provides an alternative statutory parent-time schedule for children between five and eighteen years old. Enacted in 2015, Utah Code section 30-3-35.1 describes an "optional" increased parent-time schedule. Id. § 30-3-35.1. Under this schedule, the noncustodial parent has parent-time for one weekday overnight and, on alternating weekends, three overnights (Friday through Sunday nights), resulting in the noncustodial parent having approximately 145 overnights with the child during a calendar year. Id. § 30-3-35.1(1), (6).

¶8 The statute directs that "[t]he parents and the court may consider " the increased parent-time schedule under section 30-3-35.1"as a minimum" in two circumstances: when "the parties agree," or when "the noncustodial parent can demonstrate" the existence of certain factors. Id. § 30-3-35.1(2) (emphasis added). Those factors are:

(a) the noncustodial parent has been actively involved in the child's life;

(b) the parties are able to communicate effectively regarding the child, or the noncustodial parent has a plan to accomplish effective communications regarding the child;

(c) the noncustodial parent has the ability to facilitate the increased parent-time;

(d) the increased parent-time would be in the best interest of the child; and

(e) any other factor the court considers relevant.

Id .

¶9 Lay contends that, if a noncustodial parent successfully demonstrates that the factors listed in Utah Code section 30-3-35.1(2) are present, then the parent-time schedule in that section "becom[es] the minimum amount of parent time that a trial court may award to the noncustodial parent." Specifically, he asserts that once the noncustodial parent makes the required showing, the district court must order the parent-time schedule laid out in section 30-3-35.1. Lay acknowledges the statute provides that the court "may consider" the increased parent-time schedule upon such a showing, but he asserts that "[t]he word may in the statute should be construed ... as shall ." We disagree.

¶10 "When we interpret statutes, our primary objective is to ascertain the intent of the legislature." Scott v. Scott , 2017 UT 66, ¶ 22, 423 P.3d 1275 (quotation simplified). Because "the best evidence of the legislature's intent is the plain language of the statute itself, we look first to the plain language of the statute." Id. (quotation simplified). "In so doing, we presume that the legislature used each word advisedly" and that "the expression of one term should be interpreted as the exclusion of another, thereby presuming all omissions to be purposeful." Bagley v. Bagley , 2016 UT 48, ¶ 10, 387 P.3d 1000 (quotations simplified). "Further, we interpret statutes to give meaning to all parts, and avoid rendering portions of the statute superfluous." Dahl v. Dahl , 2015 UT 79, ¶ 159, ––– P.3d –––– (quotation simplified). "To do so, we read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters." Id. (quotation simplified). "When we can ascertain the intent of the legislature from the statutory terms alone, no other interpretive tools are needed, and our task of statutory construction is typically at an end." Scott , 2017 UT 66, ¶ 22, 423 P.3d 1275 (quotation simplified).

¶11 Section 30-3-35.1 states, "The parents and the court may consider the following increased parent-time schedule as a minimum when the parties agree or the noncustodial parent can demonstrate [certain factors]...." Utah Code Ann. § 30-3-35.1(2) (LexisNexis Supp. 2017) (emphasis added). Assuming, without deciding, that Lay has demonstrated the existence of those factors, see id. § 30-3-35.1(2) – (4), we conclude that the district court was not required to adopt the section 30-3-35.1 parent-time schedule.

¶12 The Utah Code defines the meaning of the words "may" and "shall." " ‘May’ means that an action is authorized or permissive." Utah Code Ann. § 68-3-12(1)(g) (LexisNexis 2016); see also May , Black's Law Dictionary (10th ed. 2014) ("[t]o be permitted to" and "[t]o be a possibility"); In re A.J.B. , 2017 UT App 237, ¶ 25, 414 P.3d 552 (indicating that the "use of the term ‘may’ means that a court is certainly authorized" to take a particular action but "is not necessarily required to do so"). The word "shall," on the other hand, means "an action is required or mandatory." Utah Code Ann. § 68-3-12(1)(j) ; see also John Kuhni & Sons Inc. v. Labor Comm'n , 2018 UT App 6, ¶ 10, 414 P.3d 952 (noting that "shall" is "a mandatory word requiring strict compliance with its directive" (quotation simplified) ); Diener v. Diener , 2004 UT App 314, ¶ 12, 98 P.3d 1178 ("Ordinarily, the use of the word ‘shall’ in a statute creates a mandatory condition, eliminating any discretion on the part of the courts.").

¶13 Here, section 30-3-35.1's use of the term "may," rather than "shall," indicates that, provided the parties agree or the noncustodial parent makes the required showing, the district court is authorized, but not required, to consider the optional increased parent-time schedule as described in the statute. Stated differently, the noncustodial parent's demonstration of the enumerated factors gives the court the discretion to consider the increased parent-time schedule, but there is no language in the statute making the court's consideration...