Day v. Barnes

2018 UT App 143
THE UTAH COURT OF APPEALS
M ACAELA D AY ,
Appellant and Cross-appellee,
v.
TYLER BARNES,
Appellee and Cross-appellant.
Opinion
No. 20160974-CA
Filed July 27, 2018
Second District Court, Farmington Department
The Honorable David M. Connors
No. 134700668
Theodore R. Weckel Jr., Attorney for Appellant
and Cross-appellee
Eric B. Barnes and Jason F. Barnes, Attorneys for
Appellee and Cross-appellant
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN and R YAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 	Macaela Day and Tyler Barnes are mother and father to
Child. Child was born in 2010, when Day was about fifteen and
Barnes was about seventeen. Day and Barnes have struggled
over custody for most of Child’s life. In this iteration of that
struggle, both parties contend that the district court erred.
¶2 	Day appeals the district court’s custody determination on
her motion to relocate, which the parties first argued before a
commissioner. 	Because 	we 	conclude 	that 	the 	district 	court
applied 	the 	wrong 	standard 	in 	making 	its 	findings 	and

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conclusions, we vacate the district court’s order and remand for
further proceedings.
¶3 	Barnes appeals the district court’s order, alleging that the
order 	establishes 	an 	automatic 	future 	modification 	to 	the
custody order upon Day’s decision to relocate. We conclude that
the order does not operate as Barnes alleges.
BACKGROUND
¶4 	We 	join 	the 	parties’ 	custody 	saga 	at 	a 	moment 	of
apparent, though short-lived, agreement. In April 	2013, the
parties stipulated—and a Massachusetts court accepted—that
Barnes, 	who 	lived 	in 	Utah, 	would 	be 	awarded 	temporary
custody of Child, with standard parent time for Day, who lived
in 	Massachusetts. 	Just 	under 	one 	month 	later, 	Day 	filed 	a
petition in Utah, requesting that Utah courts assume jurisdiction
of the case and award custody to her. The district court assumed
jurisdiction of the case and ultimately denied Day’s motion for
custody. In so doing, the court kept the temporary custody
agreement in place, awarding Barnes primary physical custody
of Child should Day remain in Massachusetts, but awarding the
parties shared custody should Day relocate to Utah.
¶5 	Day continued to reside in Massachusetts, although she
also periodically lived in Utah for months at a time. Day filed
another motion to modify temporary custody, which the court
denied. As the case progressed toward trial, the parties reached
another stipulation, providing that, should Day move back to
Utah, Day would be designated as Child’s primary caregiver
and that she would have final decision-making authority under
a joint legal and physical custody framework.
¶6 	In July 2015, Day moved to Utah. However, in September
2015, Day provided notice of her intent to relocate back to
Massachusetts. When Barnes opposed the relocation, Day filed a
motion to relocate.

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¶7 	A hearing on Day’s motion to relocate was held before a
commissioner. 	As 	per 	usual 	procedure, 	the 	commissioner
entertained 	oral 	argument 	but 	did 	not 	take 	evidence. 	The
commissioner recommended denial of the motion. Day objected
to the commissioner’s recommendation and the district court
held an evidentiary hearing. The district court overruled Day’s
objection to the commissioner’s recommendation and denied her
motion. In its ruling, the district court concluded that “[a] party
objecting 	to 	the 	Commissioner’s 	recommendation 	has 	the
burden 	of 	demonstrating 	that 	the 	Commissioner’s
recommendation is incorrect.” The court found that Day had
“not 	presented 	new 	circumstances 	that 	the 	[c]ourt 	did 	not
already consider in its [previous custody determination], except
for evidence that she is now in a serious relationship with a
boyfriend and has plans to be married in the future.”
¶8 	The court concluded that Day “has not carried her burden
of demonstrating that the Commissioner’s recommendations
were incorrect and that moving the child to Massachusetts
would 	be 	in 	the 	child’s 	best 	interest” 	because 	“[t]he 	new
evidence presented related to [Day’s] blossoming relationship
with 	her 	new 	boyfriend 	is 	not 	a 	factor 	that 	renders 	the
Commissioner’s recommendation erroneous.”
¶9 	In denying Day’s motion to relocate, the court ruled that
“[n]othing in this Order modifies the general provisions of the
[previous] stipulated order that designate [Day] as the primary
custodial parent, with the parties exercising one week on, one
week off shared parent time, if [Day] actually relocates to Utah.”
The court continued, “If [Day] elects to return to Massachusetts,
the custody arrangement will return to that stated in the [c]ourt’s
[earlier custody order].”
¶10 	Day appeals the court’s denial of her motion to relocate.
Barnes cross-appeals, arguing that the court’s order improperly
establishes an automatic modification to custody in the event
that Day decides to relocate.

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ISSUES AND STANDARDS OF REVIEW
¶11 	Day alleges four errors: (1) the district court erred by
interpreting rule 108 of the Utah Rules of Civil Procedure as
placing 	a 	burden 	on 	the 	complaining 	party 	to 	prove 	the
commissioner’s recommendation was erroneous; (2) the court
should have factored the parties’ difficulty co-parenting into its
analysis; (3) the court’s findings were legally insufficient; and (4)
the district court abused its discretion in failing to grant Day’s
motion to relocate. We reach only the first issue: whether the
district court misinterpreted rule 108.
¶12 	“A 	district 	court’s 	interpretation 	of 	a 	rule 	of 	civil
procedure 	presents 	a 	question 	of 	law 	that 	is 	reviewed 	for
correctness. 	We 	interpret 	court 	rules, 	like 	statutes 	and
administrative rules, according to their plain language.” Strand
v. Nupetco Assocs. LLC, 2017 UT App 55, ¶ 4, 397 P.3d 724
(cleaned up).
¶13 	On cross-appeal, Barnes contends that the district court’s
order 	inappropriately 	authorizes 	an 	automatic 	future
modification 	to 	the 	final 	decree. 	We 	review 	custody
determinations for an abuse of discretion. Grindstaff v. Grindstaff,
2010 UT App 261, ¶ 3, 241 P.3d 365. “However, to the extent that
determination is based on a conclusion of law, . . . we review the
modification decision for correctness.” Kielkowski v. Kielkowski,
2015 UT App 59, ¶ 9, 346 P.3d 690, cert. granted, 362 P.3d 1255
(Utah 2015) (cleaned up).
ANALYSIS
I. Day’s Appeal
¶14 	In ruling on Day’s motion to relocate, the district court
concluded that, under rule 108 of the Utah Rules of Civil
Procedure, 	“[a] 	party 	objecting 	to 	the 	Commissioner’s
recommendation 	has 	the 	burden 	of 	demonstrating 	that 	the

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Commissioner’s 	recommendation 	is 	incorrect.” 	This 	is 	an
erroneous interpretation of the rule; no such burden exists.
¶15 	Rule 	108 	generally 	governs 	objections 	to 	a 	court
commissioner’s recommendation. In reference to the form of the
objection, the rule states,
The objection must identify succinctly and with
particularity the findings of fact, the conclusions of
law, or the part of the recommendation to which
the objection is made and state the relief sought.
The memorandum in support of the objection must
explain succinctly and with particularity why the
findings, 	conclusions, 	or 	recommendation 	are
incorrect.
Utah R. Civ. P. 108(b). In reference to the district court’s decision
on the objection, the rule explains,
The judge will make independent findings of fact
and conclusions of law based on the evidence,
whether by proffer, testimony or exhibit, presented
to the judge, or, if there was no hearing before the
judge, based on the evidence presented 	to the
commissioner.
Id. R. 108(f) (emphasis added). As stated, we “interpret court
rules, like statutes and administrative rules, according to their
plain language.” Strand v. Nupetco Assocs. LLC, 2017 UT App 55,
¶ 4, 397 P.3d 724 (cleaned up). Courts are, in short, bound by the
text of the rule. See State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841
(discussing the prejudice analysis under rule 403 of the Utah
Rules of Evidence and explaining that “courts are bound by the
text of rule 403”), abrogated on other grounds by State v. Thornton,
2017 UT 9, 391 P.3d 1016. Further, we “read the plain language
of the rule as a whole, and interpret its provisions in harmony

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with other rules.” Gardiner v. Taufer, 2014 UT 56, ¶ 26, 342 P.3d
269 (cleaned up).
¶16 	Looking to the plain language of rule 108, it does not
provide for an appeal-like review of a commissioner’s decision,
but 	instead 	requires 	“independent 	findings 	of 	fact 	and
conclusions of law based on the evidence.”1 Utah R. Civ. P.
108(f). Thus, the rule is explicit that the district court’s review is
independent on both the evidence and the law.
¶17 	This makes sense for several reasons. First, the quantum
and quality of the evidence presented to the district court under
rule 	108 	may 	be 	materially 	different 	from 	that 	which 	was
presented to the commissioner. Typically, proceedings before the
commissioner are conducted by proffer. In contrast, while a
district court may sometimes proceed by proffer or by reviewing
the record established before the commissioner, see id., district
courts more often conduct evidentiary hearings on objections,
and indeed, in cases such as the one presented here—where
custody is at issue—the district court must allow live testimony
when requested, see id. R. 108(d)(3)(A) (“If the hearing before the
commissioner was in a domestic relations matter other than a
cohabitant abuse protective order, any party has the right, upon
request: . . . to present testimony and other evidence on genuine
issues of material fact relevant to custody.”(emphasis added)).
1. The district court’s review of the evidence is not a true de
novo proceeding. Rule 108 limits the scope of evidence allowed
before the district court. See Utah R. Civ. P. 108(c) (“If there has
been 	a 	substantial 	change 	of 	circumstances 	since 	the
commissioner’s recommendation, the judge may, in the interests
of judicial economy, consider new evidence. Otherwise, any
evidence, whether by proffer, testimony or exhibit, not presented
to the commissioner shall not be presented to the judge.”).

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¶18 	Second, by operation of the rule, rulings made by the
commissioner 	become 	the 	order 	of 	the 	district 	court 	until
modified by that court. See id. R. 108(a). It would make little
sense that the district court would be limited in reviewing what
is essentially its own order. In any event, given subsection (f)’s
explicit mandate requiring independent findings by the court,
we hold that the district court erred in concluding that rule 108
places a burden on the objecting party to demonstrate error.
¶19 	In reaching its erroneous conclusion, the district court
appears to have unduly focused on rule 108(b)’s requirement
that the objecting party articulate why the findings, conclusions,
or recommendations are incorrect. See id. R. 108(b). The district
court concluded that the specificity of these requirements places
a burden of persuasion on the moving party akin to overcoming
a presumption in favor of the commissioner’s recommendation.
Such 	a 	reading, 	however, 	ignores 	the 	clear 	requirement 	of
independent findings and conclusions in subsection (f), and
reads too much into subsection (b). The requirements in rule
108(b) are briefing requirements intended to identify exactly
what part of the proceeding a party objects to. Objections to a
commissioner’s 	recommendation 	can 	be 	filed 	only 	within
fourteen days of a ruling.2 Id. R. 108(a). Subsection (b) then
explains that the procedural requirements governing the filing—
including 	the 	time 	for 	filing, 	length, 	and 	content 	of
memoranda—are found in rule 7. Accordingly, subsection (b)
speaks to the briefing requirements in submitting the objection
to the court, not to the scope or nature of the court’s review.
Thus, rule 108(b)’s requirements of specificity do not relieve the
district court from its obligation to make its own “independent
findings of fact and conclusions of law based on the evidence.”
See id. R. 108(f). Such a reading is consistent with our precedent
2. Thereafter, a party would need to avail itself of other rules,
such as rule 59, which carry obstacles to readdressing issues not
found in rule 108. See Utah R. Civ. P. 59.

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to read the rule as a whole, see Gardiner, 2014 UT 56, ¶ 26, and
therefore we must consider subsection (b)’s requirements in light
of subsection (f)’s clear direction.
¶20 	Despite having misconstrued Day’s burden, the district
court appears to have made findings and conclusions unique to
its review of the evidence. The court ruled that “[t]he new
evidence presented related to [Day’s] blossoming relationship
with 	her 	new 	boyfriend 	is 	not 	a 	factor 	that 	renders 	the
Commissioner’s 	recommendation 	erroneous.” 	But 	this
conclusion is still couched in a misapplication of the rule—that
Day, as the objecting party, bears the burden of demonstrating
that 	the 	commissioner’s 	recommendation 	was 	erroneous.
Ultimately, the district court’s findings and conclusions were
weighed on an unbalanced scale. On the record before us, we
cannot ascertain the degree to which the decision may have been
different had the district court not wrongly applied a burden to
Day. We therefore vacate the district court’s order and remand
with 	instruction 	that 	the 	district 	court 	make 	independent
findings and conclusions without imposing an erroneous burden
of proof.
¶21 	We note that the district court is not necessarily required
to rehear the evidence. Nothing in the district court’s order or
Day’s arguments on appeal indicate that there was some error in
the presentation of evidence. The district court may elect to hear
evidence, or it may elect to rule on the motion based on the
record it has already received consistent with the holding of this
opinion. Further, because we are remanding for the district court
to conduct an independent and burden-free review, we will not
speculate on what the court may do upon remand. Thus, we do
not reach the other issues Day brings on appeal.
II. Barnes’s Cross-Appeal
¶22 	Barnes also appeals the district court’s order. He alleges
that the district court established an automatic modification to
custody upon a triggering event: Day’s relocation to or from

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Utah. Because we are remanding this matter for independent
findings and conclusions, we recognize that we need not address
this issue now. However, because the issue is likely to arise on
remand, we choose to address it. See State v. Low, 2008 UT 58,
¶ 61, 192 P.3d 867. Here, Barnes mischaracterizes the order, and
we conclude that the court’s order does not operate as Barnes
alleges.
¶23 	The district court ruled, “Should [Day] remain in or
return to Utah, her final say authority, as set forth in the
[stipulated] order, shall not be construed to permit her to take
the child out of school to travel to Massachusetts or elsewhere
while school is in session, unless the parties otherwise mutually
agree in advance in writing. . . . If [Day] elects to return to
Massachusetts, 	the 	custody 	arrangement will 	return 	to 	that
stated in the [c]ourt’s [previous custody order].” Barnes argues
that 	this 	ruling 	violates 	precedent, 	rules, 	and 	statutory
requirements for modification of a decree. Barnes maintains that
the 	order 	erroneously 	ratifies 	a 	modification 	in 	the 	future
without requiring a showing of a change in circumstances. But
the district court’s order did not ratify an automatic future
modification. Instead, the ruling addressed the present best
interests 	of 	Child. 	Specifically, 	the 	ruling 	rested 	upon 	a
subsidiary finding that at the present time it was not in Child’s
best interest to move to Massachusetts. Barnes does not assail
this 	finding 	in 	the 	cross-appeal.3 	Accordingly, 	given 	the
established history of Day’s frequent moves between Utah and
Massachusetts—and assuming it was in Child’s best interest to
remain 	in 	Utah—the 	district 	court 	addressed 	what 	custody
arrangement 	would 	pertain 	should 	Day 	live 	in 	Utah 	and
3. Promoting the best interests of the child is, after all, the
beginning and the end of all custody determinations, including
motions to relocate, and is an objective that “should never be lost
sight of.” Elmer v. Elmer, 776 P.2d 599, 604 (Utah 1989) (cleaned
up).

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20160974-CA 	10 	2018 UT App 143
likewise addressed what arrangement would pertain should Day
continue to reside in Massachusetts. See Pingree v. Pingree, 2015
UT App 302, ¶ 7, 365 P.3d 713 (affirming a district court’s
custody evaluation on a request for relocation where the order
concluded that “if [m]other insisted on relocating, a change in
custody would be warranted”).
¶24 	Because the district court’s order outlines custody based
upon both where Day chose to reside at the time of the order and
the then-existing best interests of Child, we perceive no error.4
CONCLUSION
¶25 	We conclude that the district court misapplied rule 108 of
the Utah Rules of Civil Procedure. The objecting party does not
bear 	the 	burden 	to 	show 	that 	the 	commissioner’s
recommendation was erroneous. Rather, the district court must
make independent findings of fact and conclusions of law. We
therefore vacate the district court’s order and remand to the
district court for proceedings consistent with this ruling. We
further conclude that the district court’s order does not establish
an automatic future modification and that Barnes’s contention
on cross-appeal is without merit.
4. To the extent that the parties are concerned that the other
party could manipulate custody based on this provision, any
such attempt would always be subject to a further petition to
modify custody.