Miller v. Miller

2020 UT App 171
THE UTAH C OURT OF APPEALS
R YAN MILLER ,
Appellant,
v.
BRENDA MILLER ,
Appellee.
Opinion
No. 20190748-CA
Filed December 24, 2020
Second District Court, Farmington Department
The Honorable Michael Edwards
No. 134701192
Jonathan Hibshman, Marco Brown, and Rodney R.
Parker, Attorneys for Appellant
Dustin D. Gibb, Attorney for Appellee
J UDGE KATE A PPLEBY authored this Opinion, in which
J UDGES J ILL M. P OHLMAN and D IANA HAGEN concurred.
APPLEBY, Judge:
¶1 	Ryan Miller appeals the district court’s dismissal of his
petition to modify the parties’ divorce decree. Ryan’s1 petition
asked that he be appointed the primary custodial parent of the
parties’ children. The district court dismissed the petition for
failure to state a claim under rule 12(b)(6) of the Utah Rules of
Civil Procedure and, alternatively, for the parties’ failure to
engage in a dispute resolution procedure before seeking court
intervention. On appeal, Ryan contends the court applied the
1. Because the parties share the same last name, we refer to each
by 	their 	first 	names, 	with 	no 	disrespect 	intended 	by 	the
informality.

Miller v. Miller
20190748-CA 	2 	2020 UT App 171
wrong 	standards 	for 	dismissal 	under 	rule 	12(b)(6) 	and 	for
determining 	whether 	a 	change 	of 	circumstances 	justified
modifying the divorce decree. He also challenges the court’s
dismissal of his petition based on his failure to use a dispute
resolution procedure before filing the petition. We reverse and
remand for further proceedings.
BACKGROUND
¶2 	Ryan and Brenda divorced in June 2014. The divorce
decree incorporated, and was based on, the parties’ stipulation
and property settlement agreement. The parties stipulated, and
the court decreed, that they would have joint legal and physical
custody of their children, with Brenda as the “primary physical
custodial parent” and the children attending school based on her
residence. The parties’ stipulation and the decree also separately
provided parent-time for Ryan.
¶3 	Additionally, the parties stipulated to a parenting plan. As
relevant here, the plan expressed an overarching preference for
resolving co-parenting disputes between them, using “experts to
assist them” in doing so “when they are unable to resolve conflict
themselves” and to “solve problems and make joint decisions by
working through [the] decision-making procedure” included in
the plan. It also expressed the parties’ agreement to make “major
decisions” regarding the children together and to use a mediator
before seeking a resolution in court when, “after following the
joint 	decision-making 	procedure 	and 	implementing 	the
governing 	principles,” 	the 	parties 	were 	unable 	to 	“reach 	a
consensus.”
¶4 	In May 2019, Ryan filed a petition to modify the divorce
decree (the Petition). He contended it was in the children’s best
interest that he be awarded “primary custody” of them, “with
Brenda enjoying parent-time pursuant to Utah Code Annotated,

Miller v. Miller
20190748-CA 	3 	2020 UT App 171
Section 30-3-35.1.”2 Ryan asserted there had been “substantial and
material changes in circumstances that were unforeseeable” at the
time the decree was entered, and he made twelve allegations in
support.
¶5 	Specifically, 	Ryan 	alleged: 	(1) 	“Brenda 	does 	not
communicate 	with 	Ryan 	regarding 	[the 	children] 	and 	their
needs”; (2) Ryan was “not informed” when one of the children
“suffered 	a 	concussion” 	or 	about 	the 	associated 	“activity
restrictions”; (3) “Brenda has refused to allow [the children] to
attend significant events in Ryan’s and [the children’s] lives”;
(4) Ryan and his current spouse have a two-year-old child “with
whom [the children] are bonded and with whom they desire to
spend more time,” and Ryan’s current spouse works from home
and is able to care for the children; (5) “Ryan’s job and work hours
have stabilized” since the decree was entered, “giving him
predictability in when he is at home and able to spend time” with
the children; (6) during Ryan’s Thursday overnight parent-time,
he “spends much of the time . . . doing homework” with the
children, “which has accumulated throughout the week” while
the children were with Brenda; (7) “Brenda does not give [the
children] their medication”; (8) the children “have been neglected
in their personal hygiene and appearance”; (9) Brenda allows the
children “constant screen time”; (10) Brenda is cohabiting with
someone who is “forcing [the children] into a vegan lifestyle,
resulting in malnourishment,” and who has warrants out for his
arrest; (11) the children have asked “Ryan if they can spend more
time with him”; and (12) “Brenda has an established pattern of
neglecting” the children.
2. Utah Code section 30-3-35.1 provides an “optional parent-time
schedule” of “145 overnights” for children “5 to 18 years of age.”
Utah Code Ann. § 30-3-35.1(1) (LexisNexis 2019). The parties
acknowledge this was the parent-time awarded to Ryan under the
divorce decree.

Miller v. Miller
20190748-CA 	4 	2020 UT App 171
¶6 	Brenda filed a motion to dismiss the Petition pursuant to
rule 12(b)(6) of the Utah Rules of Civil Procedure, which provides
that a party may move for dismissal of a complaint for “failure to
state a claim upon which relief can be granted.” Brenda contended
Ryan’s allegations “fail[ed] to meet the high burden required for
a change of custody” because none of them, “even if true,
constitute[d] a material and substantial change in circumstances.”
Therefore, Ryan had “failed to state a claim upon which the relief
he seeks, a change of custody, could possibly be granted.”3 Brenda
did not argue that the Petition should be dismissed for the
additional reason that Ryan had failed to use dispute resolution
procedures in relation to his request to modify custody.
¶7 	After an evidentiary hearing, the district court dismissed
the Petition on two independent grounds. First, the court agreed
with Brenda that the Petition failed to state a claim under rule
12(b)(6) for modification of custody. It addressed each of the
changed-circumstances allegations and determined most of them
“could support some change.” But it determined many of the
allegations 	were 	entitled 	to 	“little 	weight” 	as 	part 	of 	its
“substantial and material change in circumstances analysis.”
Ultimately, the court concluded that the allegations, taken “as a
whole,” “as true,” and “in the light most favorable to [Ryan]” “do
not amount to an allegation that there has been a material and
substantial change in the circumstances of the parties and their
children that would justify the change requested.” On this basis,
the court concluded Ryan failed to state a claim upon which the
custody 	modification 	could 	be 	granted 	and 	dismissed 	the
Petition.
3. Brenda also asked the district court to order Ryan to pay her
attorney fees and costs related to the Petition. The court ultimately
denied the request, and that ruling has not been challenged on
appeal.

Miller v. Miller
20190748-CA 	5 	2020 UT App 171
¶8 	Second, as an alternative ground for dismissal, the court
determined Utah Code section 30-3-10.4(1)(c)4 “means what it
says” regarding the use of dispute resolution procedures to
resolve disputes related to the modification of custody. During
the hearing on Brenda’s motion, the court sua sponte raised the
issue of whether the parties had attempted to use a dispute
resolution procedure, and the court determined they had not.
Because Ryan “admitted through counsel that he has not sought”
to engage in such procedures, the court determined the Petition
was additionally dismissed “for failure to properly use alternative
dispute resolution procedures.”
¶9 	Ryan timely appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 	Ryan appeals the Petition’s dismissal under rule 12(b)(6) of
the Utah Rules of Civil Procedure. “We review a decision granting
a motion to dismiss for correctness, granting no deference to the
decision of the district court.” Fehr v. Stockton, 2018 UT App 136,
¶ 8, 427 P.3d 1190 (quotation simplified). “We likewise review the
4. Utah Code section 30-3-10.4(1) sets forth the conditions under
which a court may grant a petition for modification of a custody
order. In addition to a “verified petition” showing “that the
circumstances of the child or one or both parents or joint legal or
physical custodians have materially and substantially changed
since the entry of the order to be modified” and that the
modification is in the child’s best interest, both parents must also
have complied in good faith with an applicable dispute resolution
procedure. See Utah Code Ann. § 30-3-10.4(1) (LexisNexis 2019).

Miller v. Miller
20190748-CA 	6 	2020 UT App 171
district court’s subsidiary legal determinations for correctness.”
Id.5
¶11 	Ryan also challenges the court’s dismissal of the Petition
for failure to use dispute resolution procedures, contending the
court erred by sua sponte determining that his failure to use
dispute resolution procedures justified dismissal of the Petition.
While 	district 	courts 	generally 	have 	inherent 	authority 	and
discretion regarding the “manage[ment of] their own affairs so as
to achieve the orderly and expeditious disposition of cases,” see
PDC Consulting, Inc. v. Porter, 2008 UT App 372, ¶ 14, 196 P.3d 626
(quotation simplified), to the extent this issue implicates the
process afforded to Ryan, it is a legal question we consider under
a 	correctness 	standard, 	see 	Brigham 	Young 	Univ. 	v. 	Tremco
Consultants, Inc., 2007 UT 17, ¶ 25, 156 P.3d 782.
5. We assume without deciding that rule 12(b)(6) applies in the
context of a petition for modification of custody. The parties
appear to believe that it does, and we have not been provided
argument or authority to otherwise question this assumption.
Similarly, we assume without deciding that correctness is the
appropriate standard of review to apply to the district court’s rule
12(b)(6) dismissal in this context. We note this seems to be a case
“where deferential and correctness standards appear to intersect.”
See Lindsey v. Lindsey, 2017 UT App 38, ¶ 27, 392 P.3d 968.
Although we review for correctness a dismissal under rule
12(b)(6), we review the “fact-intensive legal determination” of
whether “substantial and material changes have occurred” for
abuse of discretion. See Doyle v. Doyle, 2009 UT App 306, ¶ 15, 221
P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553; see also Peeples v. Peeples,
2019 UT App 207, ¶ 11, 456 P.3d 1159; Huish v. Munro, 2008 UT
App 283, ¶ 19, 191 P.3d 1242. Nevertheless, the parties appear to
agree that the court’s dismissal of the Petition should be reviewed
for correctness and do not argue that the ruling is entitled to
deference.

Miller v. Miller
20190748-CA 	7 	2020 UT App 171
ANALYSIS
¶12 	The district court dismissed the Petition for failure to state
a claim under rule 12(b)(6) of the Utah Rules of Civil Procedure.
Ryan contends the court misapplied the dismissal standard
under, and exceeded the scope of, the rule. He argues the court
improperly “established facts” and “proceeded to the merits of
[his] 	claims 	in 	reviewing 	his 	allegations 	of 	changed
circumstances.” Relatedly, Ryan contends the court erred by
applying an incorrect standard for a petition to modify a divorce
decree. Characterizing the Petition as requesting only a change in
parent-time rather than a change of custody, he argues the court
erred 	by 	applying 	the 	heightened 	changed-circumstances
standard applicable to custody change requests.
¶13 	Ryan also argues the district court erred by granting the
motion to dismiss on the alternative ground that he had not
utilized dispute resolution procedures in seeking modification of
the decree.
¶14 	We address each issue below, ultimately concluding the
court erred in granting Brenda’s motion for dismissal under rule
12(b)(6) for failure to state a claim and in sua sponte dismissing
the Petition due to the parties’ failure to engage in dispute
resolution procedures.
I. Dismissal for Failure to State a Claim
A. 	Applicable Principles
¶15 	“A complaint states a claim upon which relief can be
granted if it alleges the facts and sets forth the legal basis for an
available legal remedy.” Simmons Media Group, LLC v. Waykar,
LLC, 2014 UT App 145, ¶ 15, 335 P.3d 885 (quotation simplified).
“A rule 12(b)(6) motion to dismiss admits the facts alleged in the
complaint but challenges the plaintiff’s right to relief based on

Miller v. Miller
20190748-CA 	8 	2020 UT App 171
those facts.” Blanch v. Farrell, 2018 UT App 172, ¶ 14, 436 P.3d 285
(quotation simplified). Our review of a rule 12(b)(6) dismissal is
“concerned solely with the sufficiency of the pleadings, and not
the underlying merits of the case.” Fehr v. Stockton, 2018 UT App
136, ¶ 8, 427 P.3d 1190 (quotation simplified); see also Capri
Sunshine, LLC v. E & C Fox Invs., LLC, 2015 UT App 231, ¶ 11, 366
P.3d 1214 (“The purpose of a rule 12(b)(6) motion is to challenge
the formal sufficiency of the claim for relief, not to establish the
facts or resolve the merits of a case.” (quotation simplified)); Shah
v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 6, 314 P.3d
1079 (explaining that a rule 12(b)(6) review concerns the “legal
sufficiency of the claim”). “We assume the truth of the factual
allegations in the complaint and draw all reasonable inferences
therefrom in the light most favorable to the plaintiff.” Fehr, 2018
UT App 136, ¶ 8 (quotation simplified). While courts “need not
accept legal conclusions or opinion couched as facts,” Miller v.
West Valley City, 2017 UT App 65, ¶ 12, 397 P.3d 761 (quotation
simplified), “[a] district court should grant a motion to dismiss
only if it is clear from the allegations that the non-moving party
would not be entitled to relief under the set of facts alleged or
under any facts it could prove to support its claim,” O’Hearon v.
Hansen, 2017 UT App 214, ¶ 10, 409 P.3d 85; see also Van Leeuwen
v. Bank of Am. NA, 2016 UT App 212, ¶ 6, 387 P.3d 521 (stating that
dismissal 	under 	rule 	12(b)(6) 	“is 	justified 	only 	when 	the
allegations of the complaint clearly demonstrate that the plaintiff
does not have a claim” (quotation simplified)).
¶16 	The Petition requested a change in primary custody.
Modification of an order establishing joint physical or legal
custody is governed by Utah Code section 30-3-10.4. It provides
that upon petition by “one or both of the parents, . . . the court
may, 	after 	a 	hearing, 	modify 	or 	terminate 	an 	order 	that
established joint legal custody or joint physical custody if” “the
verified petition or accompanying affidavit initially alleges that
admissible evidence will show that the circumstances of the child

Miller v. Miller
20190748-CA 	9 	2020 UT App 171
or one or both parents or joint legal or physical custodians have
materially and substantially changed since the entry of the order
to be modified” and that “a modification of the terms and
conditions of the order would be an improvement for and in the
best interest of the child.” Utah Code Ann. § 30-3-10.4(1)(a), (b)
(LexisNexis 2019). This is a two-part test: the court “first must
decide whether there are changed circumstances warranting the
exercise of the court’s continuing jurisdiction to reconsider the
custody award,” and it may then proceed to the best interest
determination 	“only 	if 	circumstances 	have 	materially 	and
substantially changed.” Erickson v. Erickson, 2018 UT App 184,
¶ 14, 437 P.3d 370 (quotation simplified).
¶17 	The 	change-in-circumstances 	inquiry 	is 	a 	threshold
requirement for reopening a custody order. Doyle v. Doyle, 2011
UT 42, ¶ 25, 258 P.3d 553. It has two requirements: “the party
seeking modification must demonstrate (1) that since the time of
the previous decree, there have been changes in the circumstances
upon which the previous award was based; and (2) that those
changes 	are 	sufficiently 	substantial 	and 	material 	to 	justify
reopening the question of custody.” Peeples v. Peeples, 2019 UT
App 207, ¶ 15, 456 P.3d 1159 (quoting Hogge v. Hogge, 649 P.2d 51,
54 (Utah 1982)). “Prohibiting a court from reopening the custody
question until it has first made a threshold finding of substantially
changed circumstances serves multiple interests.” Doyle, 2011 UT
42, ¶ 25 (quotation simplified). “First, because a custody decree is
predicated on a particular set of facts, that decree is res judicata,”
with 	the 	result 	that 	the 	changed-circumstances 	requirement
“prevents an unnecessary drain on judicial resources by repetitive
litigation of the same issue when the result would not be altered.”
Id. (quotation simplified). Second, the changed-circumstances
requirement “protects the custodial parent from harassment by
repeated 	litigation.” 	Id. 	(quotation 	simplified). 	Finally, 	the
requirement 	“protects 	the 	child 	from 	‘ping-pong’ 	custody
awards.” Id. (quotation simplified); see also Peeples, 2019 UT App

Miller v. Miller
20190748-CA 	10 	2020 UT App 171
207, ¶ 14 (noting the “important ends” served by the changed-
circumstances requirement are avoiding “the deleterious effects
of ‘ping-pong’ custody awards that subject children to ever-
changing custody arrangements” and “prevent[ing] the undue
burdening of the courts and the harassing of parties by repetitive
actions” (quotation simplified)).
¶18 	Our 	courts 	have 	recognized 	that 	“the 	change 	in
circumstances required to justify a modification of a divorce
decree varies with the type of modification sought.” Erickson, 2018
UT App 184, ¶ 16 (quotation simplified). For example, when
modifying parent-time (as opposed to custody), “the petitioner is
required to make only some showing of a change in circumstances,
which does not rise to the same level as the substantial and
material showing required when a district court alters custody.”
Id. (quotation simplified); see also Blocker v. Blocker, 2017 UT App
10, ¶ 12, 391 P.3d 1051.
¶19 	Further, “in some cases, a lesser showing of changed
circumstances may support modifying a stipulated award than
would be required to modify an adjudicated award,” because “the
res judicata policies underlying the changed-circumstances rule
are at a particularly low ebb.” Peeples, 2019 UT App 207, ¶ 15
(quotation simplified); see also Elmer v. Elmer, 776 P.2d 599, 603
(Utah 1989); Zavala v. Zavala, 2016 UT App 6, ¶¶ 16–17, 366 P.3d
422.
¶20 	Nevertheless, for custody changes, “[t]he required finding
of 	a 	material 	and 	substantial 	change 	of 	circumstances 	is
statutory,” with the result that “[n]either this court nor the
supreme 	court 	has 	purported 	to—or 	could—alter 	that
requirement.” Zavala, 2016 UT App 6, ¶ 16; see also Peeples, 2019
UT 	App 	207, 	¶ 	13. 	As 	a 	result, 	although 	the
changed-circumstances showing may differ depending on the
case, “[i]f a custody award has already been entered, custody will
not be re-examined absent a material and substantial change of

Miller v. Miller
20190748-CA 	11 	2020 UT App 171
circumstances.” Zavala, 2016 UT App 6, ¶ 16; see also Peeples, 2019
UT 	App 	207, 	¶ 	15 	(acknowledging 	“that 	the
change-in-circumstances requirement still applies even in cases
involving 	stipulated 	(as 	opposed 	to 	adjudicated) 	custody
orders”). 	See 	generally 	Doyle, 	2011 	UT 	42, 	¶ 	38 	(“Even 	an
overwhelming case for the best interest of the child could not
compensate for a lack of proof of a change in circumstances.”).
¶21 	Applying these principles, we conclude the district court
improperly applied the rule 12(b)(6) standard when it dismissed
the Petition. As we discuss below, in evaluating the Petition, the
court properly determined Ryan requested a change in custody
rather than a change in parent-time. But although the court
properly categorized the Petition as seeking a change in custody
and recited the correct rule 12(b)(6) standard, the court exceeded
the 	scope 	of 	that 	standard 	when 	it 	weighed 	the
change-of-circumstances allegations on their merits instead of
assuming their truth to determine whether the Petition “allege[d]
that admissible evidence will show that the circumstances of the
child or one or both parents or joint legal or physical custodians
have materially and substantially changed since the entry of the
order to be modified.” See Utah Code Ann. § 30-3-10.4(1)(a); see
also Fehr, 2018 UT App 136, ¶ 8. On this basis, we reverse the rule
12(b)(6) portion of the district court’s dismissal order.
¶22 	Because the court’s application of rule 12(b)(6) depends on
its determination that the Petition sought a change in custody
rather than in parent-time, we first address Ryan’s challenge to
the court’s custody standard determination, then address the
court’s rule 12(b)(6) application in light of the proper custody
standard.
B. 	Custody Standard
¶23 	Ryan contends the district court, in evaluating the Petition,
improperly 	applied 	the 	heightened 	changed-circumstances

Miller v. Miller
20190748-CA 	12 	2020 UT App 171
standard applicable to custody changes. He claims the Petition
merely requested a change in parent-time and asserts the court
erred by declining to apply the lesser changed-circumstances
showing applicable to changes in parent-time.
¶24 	The district court determined the standard applicable to
modification requests for custody changes in Utah Code section
30-3-10.4(1) 	was 	the 	appropriate 	standard 	to 	apply, 	which
required the Petition to allege “that admissible evidence will
show that the circumstances of the child or one or both parents or
joint 	legal 	or 	physical 	custodians 	have 	materially 	and
substantially changed since the entry of the order to be modified.”
Utah Code Ann. § 30-3-10.4(1)(a) (LexisNexis 2019). In doing so,
the court noted that Ryan’s request was “the polar opposite” of
the custody and parent-time arrangement in place under the
decree. And ultimately it concluded, applying the standard
articulated in section 30-3-10.4(1), that the allegations did not
demonstrate “the circumstances of the children or one or both of
the parents [had] materially and substantially changed since the
entry” of the divorce decree. (Emphasis added.)
¶25 	We 	perceive 	no 	error 	in 	the 	changed-circumstances
standard the court applied. First, although the divorce decree
granted the parties joint legal and physical custody, Brenda was
designated as the “primary physical custodial parent,” with Ryan
awarded parent-time. The Petition plainly requested the court to
award Ryan “primary custody” of the children, “with Brenda
enjoying parent-time,” and set forth a number of “substantial and
material change[s] in circumstances” Ryan believed supported his
request. Although on appeal Ryan characterizes his request
merely as a change in parent-time, he nevertheless agrees that it
asked to “mak[e] him the primary physical custodian.”
¶26 	In this respect, Ryan’s request is more than merely a
request to change parent-time. If the request were granted, Ryan
would be deemed the primary custodial parent, with Brenda

Miller v. Miller
20190748-CA 	13 	2020 UT App 171
receiving parent-time. This change would dramatically decrease
the number of overnights the children would spend per year with
Brenda while increasing them for Ryan. Among other things,
Brenda’s overnights would decrease from 220 per year to 145, and
Ryan’s 	would 	increase 	to 	220. 	See 	generally 	id. 	§ 	30-3-35.1
(LexisNexis 2019) (setting forth the number of overnights and
schedule applicable to parent-time). The change also would
substantially 	disrupt 	and 	alter 	the 	children’s 	routines,
expectations, and time with Brenda attendant to her designation
as the children’s primary custodial parent since the 2014 decree.
Additionally, the change could affect where the children attend
school because the decree provided they would “attend school
based upon [Brenda’s] residence” as she was designated the
primary custodial parent.
¶27 	Thus, we do not agree with Ryan that his request is
properly characterized merely as a change in parent-time; in
substance, he has asked for an order to have the children’s
primary custodial parent changed.6 We therefore conclude the
court 	correctly 	applied 	the 	statutory 	changed-circumstances
6. Ryan cites Blocker v. Blocker, 2017 UT App 10, 391 P.3d 1051, and
Jones v. Jones, 2016 UT App 94, 374 P.3d 45, as support for his
contention that the district court applied the wrong standard
where 	he 	requested 	only 	a 	change 	in 	parent-time. 	But 	he
acknowledges he cites the cases “for their legal proposition”
regarding the showing required to justify a change in parent-time,
“not for their factual similarities to [his] case.” And, indeed, it is
apparent the modification requests in Blocker and Jones were for
parent-time, not custody. See Blocker, 2017 UT App 10, ¶¶ 5–8, 11,
16 	(changing 	mother’s 	parent-time 	from 	supervised 	to
unsupervised); Jones, 2016 UT App 94, ¶¶ 5–7, 10–11 (modifying
the extent of mother’s parent-time after she relocated closer to the
children). Thus, neither case is helpful or applicable here.

Miller v. Miller
20190748-CA 	14 	2020 UT App 171
standard 	applicable 	to 	custody 	modification 	requests 	under
section 30-3-10.4—whether there has been a substantial and
material change in circumstances justifying a modification of the
divorce decree—as opposed to the lesser showing applicable to
mere parent-time changes.7
¶28 	In short, we perceive no error in the court’s decision to
apply to the Petition the standard applicable to custody change
requests under Utah Code section 30-3-10.4(1).
C. 	Rule 12(b)(6) Standard
¶29 	Ryan contends the district court erred by dismissing his
Petition under rule 12(b)(6) of the Utah Rules of Civil Procedure.
He argues it misapplied, and exceeded the scope of, rule 12(b)(6)
in dismissing the Petition. We agree.
7. Ryan also briefly suggests the district court did not apply the
“low ebb” standard applicable to evaluating petitions to modify
stipulated custody orders. See Peeples v. Peeples, 2019 UT App 207,
¶ 15, 456 P.3d 1159 (explaining that “a lesser showing of changed
circumstances 	may 	support 	modifying 	a 	stipulated 	award”
because 	“the 	res 	judicata 	policies 	underlying 	the
changed-circumstances 	rule 	are 	at 	a 	particularly 	low 	ebb”
(quotation simplified)). We do not agree. The court explicitly
determined that because the “original custody agreement was by
way of stipulation” rather than adjudication, applying the “low
ebb” standard to the Petition was appropriate. And apart from
pointing out that the court “should have been looking for a lower
showing of changed circumstances” given the stipulated nature
of the decree, Ryan has not otherwise demonstrated that, despite
the court’s determination, it failed to apply that standard in
evaluating the Petition. Therefore, we are not persuaded the court
erred by failing to apply the “low ebb” changed-circumstances
standard generally applicable to stipulated custody orders.

Miller v. Miller
20190748-CA 	15 	2020 UT App 171
¶30 	Rule 12(b)(6) permits a party to move for dismissal of a
complaint on the grounds that it “fail[s] to state a claim upon
which relief can be granted.” Utah R. Civ. P. 12(b)(6). This means
that, even accepting the complaint’s allegations as true, “it is clear
. . . that the non-moving party would not be entitled to relief under
the set of facts alleged or under any facts it could prove to support
its claim.” O’Hearon v. Hansen, 2017 UT App 214, ¶ 10, 409 P.3d
85; see also Van Leeuwen v. Bank of Am. NA, 2016 UT App 212, ¶ 6,
387 P.3d 521 (stating that dismissal under rule 12(b)(6) “is justified
only when the allegations of the complaint clearly demonstrate
that the plaintiff does not have a claim” (quotation simplified)).
¶31 	The Petition sought a change in the parties’ custody
arrangement. See supra ¶¶ 23–28. As discussed above, in the
context of petitions to modify custody orders, the allegations must
demonstrate 	“that 	admissible 	evidence 	will 	show 	that 	the
circumstances of the child or one or both parents or joint legal or
physical custodians have materially and substantially changed
since the entry of the order to be modified.” Utah Code Ann.
§ 30-3-10.4(1)(a) 	(LexisNexis 	2019). 	To 	meet 	the
changed-circumstances requirement, the Petition thus had to
include allegations demonstrating “(1) that since the time of the
previous decree, there have been changes in the circumstances
upon which the previous award was based; and (2) that those
changes 	are 	sufficiently 	substantial 	and 	material 	to 	justify
reopening the question of custody.” Peeples v. Peeples, 2019 UT
App 207, ¶ 15, 456 P.3d 1159 (quoting Hogge v. Hogge, 649 P.2d 51,
54 (Utah 1982)).
¶32 	Here, 	the 	district 	court 	articulated 	the 	correct 	legal
standard, but ultimately misapplied it. It recognized its duty “to
review [the changed-circumstances allegations] of the Petition
. . . and to take those alleged facts at face value and any inferences
that can be drawn from them in favor of the non-moving party”
to determine whether the Petition stated a claim for modifying the
custody order. And the court recited the appropriate standard in

Miller v. Miller
20190748-CA 	16 	2020 UT App 171
reaching 	its 	conclusion 	that 	Ryan 	had 	“not 	supported 	the
allegation 	that 	admissible 	evidence 	will 	show 	that 	the
circumstances of the children or one or both of the parents have
materially and substantially changed since the entry of the order
to be modified,” stating it reached its conclusion by “taking all
allegations together and considering them in the light most
favorable to [Ryan].”8
¶33 	But in reaching that conclusion, the court acknowledged
that most of the Petition’s allegations “could support some
change” and thereby constituted appropriate considerations for
evaluating a custody change. Nevertheless, the court discounted
those allegations in conducting its analysis of the changes. The
court determined that, for various reasons, many of the Petition’s
allegations 	were 	entitled 	to 	little 	weight. 	For 	example, 	it
determined 	that 	allegations 	about 	Brenda’s 	failure 	to
communicate, failure to allow the children to attend “significant
events,” allowance of constant screen-time, and neglect were
entitled to “little weight” in the overall substantial and material
change analysis. Similarly, the court determined that several of
the allegations, including the homework-related, cohabitation,
and medication-regime allegations, were “of less value” in the
8. Ryan seems to challenge the district court’s consideration of his
allegations as a whole to determine whether there had been a
substantial and material change in circumstances. But the court
committed no error in evaluating the Petition and its allegations
as a whole in determining whether to grant Brenda’s motion to
dismiss. See, e.g., Edwards v. Carey, 2017 UT App 73, ¶ 19, 397 P.3d
797 (explaining that a complaint is to be read and construed as a
whole (citing Geros v. Harries, 236 P. 220, 222 (Utah 1925))); McNair
v. State, 2014 UT App 127, ¶ 14, 328 P.3d 874 (same); Mower v.
Simpson, 2012 UT App 149, ¶¶ 24–25, 278 P.3d 1076 (explaining
that dismissal of a claim should not occur “without an analysis of
the claim as a whole”).

Miller v. Miller
20190748-CA 	17 	2020 UT App 171
substantial and material change analysis as the result of Ryan’s
failure 	to 	engage 	in 	alternative 	dispute 	resolution 	and
enforcement proceedings before bringing the Petition. And for
certain allegations, including those regarding screen-time and
Brenda’s cohabitation, the court acknowledged that it needed
more facts to properly analyze the weight and consideration to be
afforded them in the overall change-of-circumstances analysis,
yet it also discounted the allegations for that reason.
¶34 	By analyzing the weight and value of the allegations as
well as the necessity of more facts, the court proceeded past the
proper rule 12(b)(6) question—whether the Petition stated a
legally sufficient claim for a substantial and material change in
circumstances—to the merits-related questions of whether the
various allegations actually constituted a material and substantial
change in circumstances. See Fehr v. Stockton, 2018 UT App 136,
¶ 8, 	427 	P.3d 	1190 	(stating 	that 	a 	rule 	12(b)(6) 	inquiry 	is
“concerned solely with the sufficiency of the pleadings, and not
the underlying merits of the case” (quotation simplified)). Doing
so was error.
¶35 	To be sure, the determination of whether allegations of
changed circumstances amount to a material and substantial
change is a legal one. See Huish v. Munro, 2008 UT App 283, ¶ 19,
191 P.3d 1242 (characterizing a court’s conclusion about “whether
a material change in circumstances has occurred that would
warrant reconsidering the original decree” as a “legal conclusion”
(quotation simplified)); Hudema v. Carpenter, 1999 UT App 290,
¶ 21, 989 P.2d 491 (same). As a result, if changed-circumstances
allegations clearly raise only circumstances that our courts have
already determined to be insufficient to justify modification of a
divorce decree as a matter of law, a district court may dismiss a
modification petition as failing to state a legally sufficient claim.
See generally O’Hearon, 2017 UT App 214, ¶ 10 (stating a motion to
dismiss should be granted “only if it is clear from the allegations
that the non-moving party would not be entitled to relief under

Miller v. Miller
20190748-CA 	18 	2020 UT App 171
the set of facts alleged or under any facts it could prove to support
its claim”); cf. Peeples, 2019 UT App 207, ¶¶ 25, 27 (stating “[i]ssues
that were present prior to the decree, and continue to be present
in much the same way thereafter,” as well as “violations of a
custody 	order 	by 	one 	party,” 	ordinarily 	do 	not 	“justify
reexamining the propriety of the [custody] order”); Kelley v. Kelley,
2000 UT App 236, ¶ 22, 9 P.3d 171 (concluding “remarriage and/or
failure 	to 	make 	support 	payments 	cannot 	alone 	justify 	a
modification” of a divorce decree). Likewise, if a court determines
a 	petition 	as 	a 	whole 	clearly 	does 	not 	allege 	a 	change 	in
circumstances that has any relation to the parenting skills or
custodial relationship or the circumstances on which the custodial
arrangement was based, it may dismiss the petition for failure to
state a claim. See O’Hearon, 2017 UT App 214, ¶ 10; cf. Becker v.
Becker, 694 P.2d 608, 610 (Utah 1984) (stating that, to meet the
materiality requirement, the change in circumstances must “have
some material relationship to and substantial effect on parenting
ability or the functioning of the presently existing custodial
relationship” 	or 	“appear 	on 	their 	face 	to 	be 	the 	kind 	of
circumstances on which an earlier custody decision was based”).
¶36 	But because a determination of whether “substantial and
material 	changes 	have 	occurred 	is 	a 	fact-intensive 	legal
determination,” see Doyle v. Doyle, 2009 UT App 306, ¶ 15, 221 P.3d
888, aff’d, 2011 UT 42, 258 P.3d 553, a decision that a modification
petition may be dismissed as legally insufficient under rule
12(b)(6) will be unusual. Here, the court expressly found that most
of 	the 	allegations 	were 	appropriate 	considerations 	for 	a
change-of-circumstances 	analysis 	and 	potentially 	could 	have
supported a change of custody. In doing so, the court necessarily
determined the allegations suggested that “admissible evidence
will show that the circumstances of the child or one or both
parents or joint legal or physical custodians have materially and
substantially changed since the entry of the order to be modified.”
See Utah Code Ann. § 30-3-10.4(1)(a). Once it made such a

Miller v. Miller
20190748-CA 	19 	2020 UT App 171
determination, the court’s task under rule 12(b)(6) was at an end.
See Fehr, 2018 UT App 136, ¶ 8. It was improper for the court to
proceed beyond the question of sufficiency of the pleadings to
merits-related questions of how much weight, value, or type of
consideration to give to certain allegations in the overall changed-
circumstances 	analysis, 	particularly 	in 	light 	of 	the 	court’s
acknowledgement that more facts were needed regarding some
of the allegations for it to make that assessment in the first place.
See id.
¶37 	For these reasons, we conclude the district court erred in
dismissing the Petition for failure to state a claim under rule
12(b)(6). The court exceeded the scope of a proper rule 12(b)(6)
inquiry in dismissing the Petition. Accordingly, we reverse the
rule 12(b)(6) portion of the court’s dismissal of the Petition.
II. Dismissal for Failure to Use Dispute Resolution Procedures
¶38 	Ryan also challenges the district court’s alternative ground
for dismissal because of his failure to use dispute resolution
procedures, arguing the court exceeded its discretion to dismiss
the Petition on this ground. He contends the court erred by sua
sponte raising the dispute resolution procedure issue and then
ruling on it as an alternative ground for dismissal. He points out
that Brenda’s motion to dismiss “did not raise the issue of the
alternate 	dispute 	resolution 	requirement” 	as 	a 	ground 	for
dismissal, and he asserts the parties “had no knowledge the issue
was being considered” by the court as a ground for dismissal until
the hearing. On this basis, he contends the court erred by
dismissing the Petition on this ground without allowing the
parties to “fully brief the issue.” We agree.
¶39 	Our supreme court has explained that Utah’s “appellate
system has developed along the adversarial model, which is
founded on the premise that parties are in the best position to
select and argue the issues most advantageous to themselves,

Miller v. Miller
20190748-CA 	20 	2020 UT App 171
while allowing an impartial tribunal to determine the merits of
those arguments.” State v. Johnson, 2017 UT 76, ¶ 8, 416 P.3d 443.
In this respect, as a general rule, “all parties are entitled to notice
that a particular issue is being considered by a court and to an
opportunity to present evidence and argument on that issue
before decision.” Plumb v. State, 809 P.2d 734, 743 (Utah 1990).
“Sua sponte decisions by [district] courts are inconsistent with the
notion of due process when parties are not provided advance
notice that the court is considering a given course of action, and
the losing party is not allowed to be heard thereon.” Jenkins v.
Weis, 868 P.2d 1374, 1383 (Utah Ct. App. 1994) 	(Bench, J.,
dissenting). In other words, “[t]imely and adequate notice and an
opportunity to be heard in a meaningful way are the very heart of
procedural fairness.” Nelson v. Jacobsen, 669 P.2d 1207, 1211 (Utah
1983); see also Rubins v. Plummer, 813 P.2d 778, 780 (Colo. App.
1990) (“The right to prior notice and an opportunity to be heard is
a critical part of our judicial system.” (citing Goldberg v. Kelly, 397
U.S. 254 (1970))). And, as to sua sponte dismissals in particular, a
court 	should 	“normally 	refrain” 	from 	doing 	so 	unless 	the
deficiency or issue “is brought to its attention by way of pleadings
or motions by the parties.” See Rubins, 813 P.2d at 779. “[I]f the
court is inclined to dismiss sua sponte, it must afford the plaintiff
an opportunity to be heard” and to “persuade the court that
dismissal is not proper” as a “matter of fundamental fairness, if
not procedural due process.” Id.
¶40 	Here, Brenda’s motion to dismiss did not raise the failure
to use dispute resolution procedures in relation to the request to
modify custody as a basis for failure to state a claim under rule
12(b)(6) or for dismissal on another basis; her motion sought
dismissal only for failure to state that a material and substantial
change had occurred, as required under Utah Code section
30-3-10.4(1)(a). Further, the relevant notice of hearing indicated
the issue to be considered during the hearing was the motion to
dismiss. See generally In re Cannatella, 2006 UT App 89, ¶ 3, 132

Miller v. Miller
20190748-CA 	21 	2020 UT App 171
P.3d 684 (“To satisfy an essential requisite of procedural due
process, a hearing must be prefaced by timely notice which
adequately informs the parties of the specific issues they must
prepare to meet.” (quotation simplified)).
¶41 	As a result, Ryan was first made aware during the hearing
itself that the court was considering dismissal on the additional
ground that he had failed to use dispute resolution procedures
before seeking court intervention. The court raised the dispute
resolution issue sua sponte at the hearing, and apparently in the
context 	of 	determining 	whether 	Ryan 	had 	satisfied 	the
requirements 	for 	modification 	of 	custody 	under 	section
30-3-10.4(1). And without allowing Ryan an opportunity to brief
the issue, it announced its ruling from the bench at the end of the
hearing and dismissed the Petition on the additional ground that
the parties had not met the dispute resolution requirement.
¶42 	In 	doing 	so, 	the 	court 	denied 	Ryan 	an 	adequate
opportunity to prepare for and address the dispute resolution
issue before it announced its dismissal on that ground. For
example, 	had 	Ryan 	been 	made 	aware 	that 	the 	court 	was
considering the dispute resolution issue in conjunction with
Brenda’s motion, he might have made an informed decision to
forgo pursuing the Petition in favor of engaging in mediation or
another dispute resolution procedure. In this respect, because of
the court’s sua sponte treatment of the issue, Ryan was not
afforded 	the 	opportunity 	to 	prepare 	for 	and 	address, 	with
authority, whether engaging in dispute resolution proceedings, as
set out in section 30-3-10.4, is required to state a claim for
modification of custody or is otherwise required in every case
before court intervention is sought. Cf. In re Adoption of B.Y., 2015
UT 67, ¶ 23, 356 P.3d 1215 (“Mere notice is an empty gesture if it
is not accompanied by a meaningful chance to make your case.”).
This denial of a briefing opportunity in light of the court’s sua
sponte dismissal was significant where the court’s decision to
dismiss on this ground appears to have been rooted in the court’s

Miller v. Miller
20190748-CA 	22 	2020 UT App 171
belief that engaging in a dispute resolution procedure is a
prerequisite, under section 30-3-10.4, to filing a petition to modify
custody. Relatedly, the court’s sua sponte consideration and
ruling on the dispute resolution issue denied Ryan an opportunity
to prepare for and address whether, given the particular nature of
the allegations allegedly justifying a modification of custody and
the terms of the parties’ parenting plan, the failure to engage in
dispute resolution procedures before seeking court intervention
was insufficient to justify the Petition’s dismissal.
¶43 	Indeed, as Ryan has pointed out on appeal, there were
some important questions raised by the 	court’s sua sponte
treatment of the issue, including whether compliance with a
dispute resolution procedure is required to state a claim for
modification of custody or whether use of a dispute resolution
procedure was required under the circumstances and in light of
the allegations in this case. Because the court both sua sponte
raised the issue for the first time and then rendered dismissal on
it during the hearing, Ryan was denied an opportunity to research
authority and consider, prepare for, and respond to these and
other related issues. See In re Cannatella, 2006 UT App 89, ¶ 3.
¶44 	For these reasons, the court’s sua sponte consideration of
and dismissal based on the dispute resolution procedure issue,
without affording Ryan the opportunity to research authority and
prepare to address it, was error. In light of the lack of notice before
the hearing that the court was considering dismissal for failure to
engage in dispute resolution procedures and the complexity of the
issues (as well as the variety of responses Ryan might have made
had he been informed before the hearing that the court was
evaluating the viability of the Petition on that ground), the court
should not have dismissed on this ground before providing Ryan
the opportunity to brief the issue. Accordingly, we reverse the
court’s dismissal on the alternative ground of failure to use a
dispute resolution procedure.

Miller v. Miller
20190748-CA 	23 	2020 UT App 171
CONCLUSION
¶45 	The 	district 	court 	applied 	the 	proper
changed-circumstances standard in evaluating the Petition. But it
misapplied the rule 12(b)(6) standard in dismissing the Petition.
The court also erred by dismissing the Petition for failure to use
dispute resolution procedures before seeking court intervention.
Accordingly, we reverse and remand for further proceedings
consistent with this opinion.