Blocker v. Blocker

2019 UT App 82
THE UTAH COURT OF APPEALS
K IRSTEEN DIDI BLOCKER ,
Appellee,
v.
M ICHAEL PHILLIP BLOCKER ,
Appellant.
Opinion
No. 20170167-CA
Filed May 16, 2019
Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 024402553
Michael Phillip Blocker, Appellant Pro Se
Grant W. P. Morrison, Matthew G. Morrison, and
Justin T. Morrison, Attorneys for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and K ATE A PPLEBY
concurred.
MORTENSEN, Judge:
¶1 	We previously considered this case in Blocker v. Blocker
(Blocker I), 2017 UT App 10, 391 P.3d 1051, and remanded it to
the district court to enter findings of fact to support its ruling
granting 	Kirsteen 	Didi 	Blocker 	(Mother) 	unsupervised
parent-time 	with 	her 	now 	sixteen-and-a-half 	year 	old 	son
(Child). Michael Phillip Blocker (Father) appeals the district
court’s post-remand judgment. We affirm.

Blocker v. Blocker
20170167-CA 	2 	2019 UT App 82
BACKGROUND1
¶2 	Mother and Father were married in 1997, separated just
weeks after Child’s birth in 2002, and divorced in 2004. Mother
and Father were awarded joint custody, with Child’s primary
physical care and residence being with Mother. In response to
Father’s petition to modify custody and concerned about the
detrimental impact of Mother’s behavior on Child, the district
court granted sole legal and physical custody to Father in 2010
(2010 Order). The district court ordered that Mother’s parent-
time be supervised until she “changed her mind set with regard
to her own parenting abilities and Father’s relationship with the
child.” Blocker I, 2017 UT App 10, ¶ 4, 391 P.3d 1051 (cleaned up).
But concerned that supervised parent-time would be impractical
for 	financial 	reasons, 	the 	court 	permitted 	Mother 	to 	have
unsupervised parent-time provided that she retain a special
master and participate in individual therapy by herself and joint
therapy with Child. Id. Until she verified compliance with these
conditions, Mother’s parent-time remained supervised. Id.
¶3 	In 2014, in response to Mother’s motion to modify the
2010 Order and based on a home study report, the district
court temporarily 	granted 	Mother 	unsupervised 	parent-time.
Id. ¶¶ 5–6. Nearly one year later, having received no other
evidence 	or testimony, 	the 	court 	decided 	to 	make 	Mother’s
unsupervised 	parent-time 	permanent 	without 	entering 	any
findings of fact. Id. ¶ 7.
¶4 	Father 	appealed, 	and 	we 	determined 	that 	the 	court
had made 	its 	order 	granting 	unsupervised 	parent-time 	to
Mother 	“permanent 	without 	explaining 	the 	basis 	for 	its
decision.” Id. ¶ 16. Because the court modified the parent-time
requirements without providing any findings, we concluded
1. The facts of this case are set out in further detail in the original
appeal. See Blocker I, 2017 UT App 10, ¶¶ 2–7, 391 P.3d 1051.

Blocker v. Blocker
20170167-CA 	3 	2019 UT App 82
that we were unable to review its decision and remanded for
more detailed findings. Id. ¶ 21.
¶5 	Regarding the changed circumstances, on remand the
district court made the following findings of fact: (1) Mother had
continued professional therapy; (2) Mother and Mother’s father
were maintaining a relationship with Child by going to Father’s
house and being allowed to spend time with Child in their car, at
the curbside, for about one hour, two to three times a week;
(3) Father’s brother (Uncle) supervised visits between Mother
and Child during the Thanksgiving and Christmas holidays
without problems being noted; (4) Child was allowed to sit and
visit with Mother and her family during a church Christmas
program without incident; (5) Mother was allowed to speak by
phone with Child two to three times per week; (6) Child was
older when the district court modified parent-time; and (7) Child
had received substantial therapy at the time the district court
modified 	parent-time. 	The 	court 	also 	identified 	three
circumstances 	that 	rendered 	the 	2010 	Order 	unenforceable:
(1) the parties were unable to afford the cost of supervised
exchanges, supervised visitation, or the services of a special
master; (2) the therapist identified in the 2010 Order to oversee
therapy of Mother and Child was no longer available; and (3) the
agency assigned to supervise Mother’s parent-time in the 2010
Order was no longer in business in Mother’s geographical area.
¶6 	Regarding 	Child’s 	best 	interest, 	the 	district 	court 	on
remand 	noted 	that 	both 	parties 	“wished 	to 	reasonably
accommodate a relationship between [Child] and [Mother].” The
court explained that “curbside parent time . . . was not in the
best interest of [Child]. He needed a more reasonable and less
artificial opportunity to know his [Mother] and her family.”
¶7 	The district court further described the process by which
it granted Mother unsupervised parent-time. Because parent-
time supervised by Uncle had been “successful and without
incident,” the court concluded that Mother should be allowed to
exercise unsupervised parent-time on a temporary basis. At the

Blocker v. Blocker
20170167-CA 	4 	2019 UT App 82
time the district court modified parent-time, Mother had been
exercising unsupervised parent-time for nearly one year without
any reported incidents. Although Father speculated that Mother
was engaging in “parental alienation” during her parent-time,
the court noted that Father offered no evidence to support this
contention. The court concluded by pointing out, “[Child] was 6
years older and in spite of the curbside restrictions and other
difficulties over the years, he and [Mother] had developed and
continued to maintain a positive parent/child relationship.” And
with 	regard 	to 	Mother, 	the 	court 	noted 	that 	she 	had
“demonstrated 	an 	ability 	through 	the 	evaluation 	and 	her
practice 	over 	several 	months 	to 	maintain 	a 	reasonable
relationship with [Child].”2 Thus, the court concluded that it was
appropriate to “reconcile the now unenforceable 2010 Order and
the 	current 	state 	of 	affairs” 	by 	allowing 	unsupervised
parent-time as the means to “most effectively foster a continuing
relationship” between Child and Mother. Father appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 	The first issue on appeal is whether the district court
erred 	when 	it 	determined 	that 	the 	unenforceability 	of 	the
conditions for Mother to have unsupervised parent-time with
Child constituted a material change in circumstances to support
a modification of the parent-time arrangements in the 2010
Order. The second issue is whether the district court erred by not
conducting a best interest analysis when it modified the parent-
time conditions of the 2010 Order. Both issues share the same
standard of review. “We review a district court’s decisions
regarding parent-time for an abuse of discretion.” Jones v. Jones,
2016 UT App 94, ¶ 8, 374 P.3d 45. “The district court’s proximity
2. The district court had ordered and received a home study to
determine 	if 	Mother 	was 	competent 	to 	have 	unsupervised
parent-time with Child.

Blocker v. Blocker
20170167-CA 	5 	2019 UT App 82
to the evidence places it in a better position than an appellate
court 	to 	choose 	the 	best 	custody 	arrangement. 	Thus, 	we
generally 	will 	not 	disturb 	the 	district 	court’s 	parent-time
determination 	absent 	a 	showing 	that 	the 	district 	court 	has
abused its discretion.” Stephens v. Stephens, 2018 UT App 196,
¶ 34, 437 P.3d 445 (cleaned up).
ANALYSIS
I. The Preclusion of Previously Disposed Arguments
¶9 	With regard to the first issue, we note that the scope of
our review of the district court’s post-remand ruling is limited
by the mandate rule. “The mandate rule, a subset of the law of
the case doctrine, binds both the district court and the parties to
honor the mandate of the appellate court. Under this rule, the
decisions of an appellate court become the law of the case and
cannot be reconsidered on remand.” State v. Oliver, 2018 UT App
101, ¶ 29 n.8, 427 P.3d 495 (cleaned up); see also Thurston v. Box
Elder County, 892 P.2d 1034, 1037 (Utah 1995) (“[T]he mandate
rule[] dictates that pronouncements of an appellate court on
legal issues in a case become the law of the case and must be
followed in subsequent proceedings of that case.”). Furthermore,
when 	this 	court 	disposes 	of 	an 	argument 	as 	inadequately
briefed, 	“the 	law 	of 	the 	case 	doctrine 	precludes 	us 	from
addressing this argument anew.” See NPEC LLC v. Miller, 2018
UT App 85, ¶ 9, 427 P.3d 357 (per curiam) (cleaned up).
¶10 	Under 	the 	mandate rule, 	Father 	cannot re-litigate 	on
remand issues we previously determined were inadequately
briefed. But this is exactly what he does now. In this post-
remand appeal, Father reintroduces a previously disposed issue
by presenting two arguments in support of it.
¶11 	First, he argues, “The district court abused its discretion
when it used Mother’s inability to comply with the conditions
[for unsupervised parent-time] in the initial Parent Time Order

Blocker v. Blocker
20170167-CA 	6 	2019 UT App 82
as a change in circumstances to justify modification of [Mother’s]
parent time because those circumstances were not those upon
which the earlier decision was based.” Next, Father argues,
“[T]he 	district 	court 	abused 	its 	discretion 	in 	finding 	that
[Mother’s] unwillingness to comply with a standing court order
provided the basis for a change in circumstances sufficient to
modify parent time as such rewards a noncompliant parent and
incentivizes her to continue her noncompliant behavior.”
¶12 	Similarly, in his previous appeal, Father argued, “The
[district] court erred when it decided that [Mother’s] inability to
comply 	with 	conditions 	for 	her 	unsupervised 	parent 	time
constituted a material change in circumstances upon which to
base a modification of a custody award.”3 A panel of this court
declined 	to 	address 	this 	issue 	because 	it 	was 	inadequately
briefed. Blocker I, 2017 UT App 10, ¶ 18, 391 P.3d 1051.
¶13 	Thus, in this post-remand appeal, Father raises essentially
the 	same 	issue—namely, 	that 	the 	district 	court 	erred 	in
concluding 	the 	unenforceability 	of 	the 	original 	parent-time
conditions constituted a material change in circumstances—that
he raised in his original appeal. But we have already declined to
address 	this 	very 	issue 	in 	Father’s 	original 	appeal 	due 	to
inadequate 	briefing. 	“In 	effect, 	[Father] 	now 	attempts 	to
supplement the briefing submitted in his earlier appeal. The
mandate rule bars such attempts.” See State v. MacNeill, 2016 UT
App 177, ¶ 39, 380 P.3d 60. Therefore, we decline to reconsider
this issue in Father’s post-remand appeal.
3. The order of the district court giving rise to the original appeal
was entitled “Order Modifying Custody.” In fact, that order
modified only parent-time and did not disturb the underlying
custody arrangement. Father repeated this error when, in the
original appeal, he imprecisely referred to a “modification of
custody” when he was actually arguing that the court erred in
modifying parent-time.

Blocker v. Blocker
20170167-CA 	7 	2019 UT App 82
II. The Post-remand Judgment
¶14 	The scope of the remand directed the district court to
enter findings of fact showing that there had been a material
change in circumstances necessary to support a change in the
parent-time provisions. See Blocker I, 2017 UT App 10, ¶ 21, 391
P.3d 1051.
¶15 	Modification of parent-time involves two separate steps.
“First, the court must find that the petitioner has made some
showing 	of 	change 	in 	circumstances 	that 	would 	support 	a
modification of parent-time.” Stephens v. Stephens, 2018 UT App
196, ¶ 33, 437 P.3d 445 (cleaned up). “Second, the court must
consider 	the 	changes 	in 	circumstance 	along 	with 	all 	other
evidence relevant to the welfare or best interests of the child to
determine de novo which custody arrangement will serve the
welfare or best interest of the child, and modify, or refuse to
modify, the decree accordingly.” Id. (cleaned up); see also Becker
v. Becker, 694 P.2d 608, 611 (Utah 1984) (“[A] modification of
visitation rights also requires a bifurcated procedure.”); Hogge v.
Hogge, 649 P.2d 51, 54 (Utah 1982) (“A . . . two-step procedure
should be followed where the petition to modify a custody
decree requests a material change in visitation rights.”).
¶16 	In 	the 	context 	of 	modifying 	parent-time, 	a 	material
change of circumstances is a “different inquiry” from a material
change regarding custody. Erickson v. Erickson, 2018 UT App 184,
¶ 16, 437 P.3d 370 (cleaned up). “When modifying parent-time,
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. (cleaned up). Furthermore, in determining
parent-time, “the [district] court gives highest priority to the
welfare of the children over the desires of either parent. Such
determinations 	are 	within 	the 	[district] 	court’s 	sound
discretion.” Childs v. Childs, 967 P.2d 942, 946 n.2 (Utah Ct. App.
1998) (cleaned up).

Blocker v. Blocker
20170167-CA 	8 	2019 UT App 82
¶17 	Finally, “[t]he [district] court’s findings on remand must
be sufficiently detailed and include enough subsidiary facts to
disclose the steps by which the ultimate conclusion on [each]
factual issue was reached.” Jensen v. Jensen, 2000 UT App 213U,
para. 8 (cleaned up); accord Lay v. Lay, 2018 UT App 137, ¶ 19,
427 P.3d 1221; Shuman v. Shuman, 2017 UT App 192, ¶ 5, 406 P.3d
258. “Put another way, findings are adequate when they contain
sufficient detail to permit appellate review to ensure that the
district 	court’s 	discretionary 	determination 	was 	rationally
based.” 	Lay, 	2018 	UT 	App 	137, 	¶ 	19 	(cleaned 	up). 	“This
obligation facilitates meaningful appellate review and ensures
the parties are informed of the [district] court’s reasoning.”
Shuman, 2017 UT App 192, ¶ 5. Furthermore, the Utah Code
requires the court to “enter the reasons underlying its order for
parent-time.” Utah Code Ann. § 30-3-34(3) (LexisNexis Supp.
2018).4
¶18 	Thus, on remand, the district court in this case had two
tasks. First, it was to enter findings of fact to support its ruling
modifying parent-time. Second, based on those findings, the
district 	court 	needed 	to 	explain 	the 	process 	by 	which 	it
concluded that eliminating supervised parent-time was in the
best interest of Child. The district court completed both tasks in
its post-remand decision.
¶19 	First, the district court identified changed circumstances
that supported its decision to modify parent-time. See supra ¶ 5.
Most notable among these is that Mother and Child had received
substantial therapy at the time of the modification, there had
been 	no 	problems 	reported 	during 	Mother’s 	supervised
parent-time, and Child was older and had grown in maturity.
The 	2010 	Order 	stated 	that 	supervised 	parent-time 	was 	to
4. Because the statutory provision in effect at the relevant time
does not differ in any material way from that now in effect, we
cite the current version of the Utah Code.

Blocker v. Blocker
20170167-CA 	9 	2019 UT App 82
continue “until such time that [Mother] demonstrates that she
has changed her mind set with regard to her own parenting
abilities 	and 	[Father’s] 	relationship 	with 	[Child].” 	Mother’s
reception of therapy and the absence of reported problems are
changed 	circumstances 	relative 	to 	the 	condition 	(that 	is,
Mother’s uncooperative mind-set) that originally gave rise to the
imposition of supervised parent-time. The court also noted that
modification was necessary because the conditions (namely, the
prohibitive costs associated with supervised parent-time, the
unavailability of a joint therapist, and the demise of the original
supervising 	agency) 	originally 	imposed 	for 	Mother’s
unsupervised 	exercise 	of 	parent-time 	had 	so 	substantially
changed 	as 	to 	make 	the 	2010 	Order 	unenforceable. 	By
highlighting 	these 	changed 	circumstances, 	the 	district 	court
made “some showing of a change in circumstances” necessary to
modify parent-time. See Erickson, 2018 UT App 184, ¶ 16 (cleaned
up).
¶20 	Second, the district court explained the process by which
it concluded a modification in parent-time was needed to serve
Child’s best interest. Given the unenforceability of the 2010
Order, the court noted that Uncle had been supervising Mother’s
parent-time for a few months as of April 2014. Mother had
exercised this parent-time without incident. The court also noted
that, given the parties’ desire “to reasonably accommodate a
relationship” 	between 	Child 	and 	Mother, 	“curbside 	parent
time . . . was not in the best interest of [Child]” because “[Child]
needed a more reasonable and less artificial opportunity to know
his [Mother] and her family.” Thus, the court allowed Uncle to
continue to supervise Mother’s parent-time on a temporary
basis. And at the same time, the court ordered a home study. The
case was set for further review after completion of the home
study and continuation of parent-time supervised by Uncle.
Four months later, after receiving the home study and hearing
that supervised parent-time had been “successful and without
incident,” 	the 	district 	court 	granted 	Mother 	unsupervised
parent-time on a temporary basis. About a year later, the court

Blocker v. Blocker
20170167-CA 	10 	2019 UT App 82
determined that Mother had exercised unsupervised, statutory
parent-time without incident, and it permanently granted her
unsupervised parent-time. The court explained that granting
Mother unsupervised parent-time was in Child’s best interest
because 	“it 	would 	most 	effectively 	foster 	a 	continuing
relationship” between Child and Mother.
¶21 	“[District] courts have particularly broad discretion in
ordering parent-time, and we will only intervene when the
[district] court’s action is so flagrantly unjust as to constitute an
abuse of discretion.” Jones v. Jones, 2016 UT App 94, ¶ 13, 374
P.3d 45 (cleaned up). “The best interests of a minor child are
promoted by having the child respect and love both parents,
which 	includes 	fostering 	a 	child’s 	relationship 	with 	the
noncustodial parent.” Hanson v. Hanson, 2009 UT App 365, ¶ 3,
223 P.3d 456 (cleaned up); see also Jones, 2016 UT App 94, ¶ 14
(“The paramount concern in [parent-time] matters is the child’s
welfare or best interest. Fostering a child’s relationship with the
noncustodial parent has an important bearing on the child’s best
interest.” (cleaned up)). Thus, the district court acted well within
its broad discretion when it found that modifying Mother’s
parent-time from supervised to unsupervised 	status was in
Child’s best interest as the most effective means to “foster a
continuing relationship” between Mother and Child.
CONCLUSION
¶22 	We 	conclude 	that, 	upon 	remand, 	the 	district 	court
properly entered findings of fact that were sufficiently detailed
to identify the steps it took to modify Mother’s parent-time. We
further 	conclude 	that 	the 	district 	court 	did 	not 	abuse 	its
discretion 	in 	reaching 	the 	conclusion 	that 	unsupervised
parent-time was in Child’s best interest.
¶23 	Affirmed.