Corn v. Groce

                THE UTAH COURT OF APPEALS

                          JANETTE CORN,
                             Appellee,
                                v.
                           BLAKE GROCE,
                            Appellant.

                             Opinion
                        No. 20220526-CA
                        Filed May 31, 2024

         Second District Court, Farmington Department
               The Honorable Ronald G. Russell
                         No. 194700657

             Alexandra Mareschal and Julie J. Nelson,
                    Attorneys for Appellant
          Emily Adams, Freyja Johnson, and William M.
                Fontenot, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
  in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
                         concurred.

CHRISTIANSEN FORSTER, Judge:

¶1     Blake Groce (Father) appeals the district court’s rejection of
his petition to modify parent-time. He also challenges the court’s
calculation of Janette Corn’s (Mother) net income for child
support purposes. Because the court did not abuse its discretion
when ruling on either issue, we affirm.


                         BACKGROUND

¶2    Father and Mother are the parents of twin daughters (the
Children). In 2015, the parties agreed to joint legal and physical
                           Corn v. Groce


custody of the Children, with Father exercising parent-time four
overnights during a two-week period, and the district court
entered a decree reflecting this agreement (Original Decree). In
2016, Father moved out of state for work. The following year,
Father began dating stepmother (Stepmother); the two married in
2019.

¶3     In 2019, due in part to Father’s relocation out of state,
Mother petitioned to modify the Original Decree, seeking sole
physical custody of the Children subject to Father’s parent-time.
Father responded to the petition and filed a counterpetition
seeking orders related to the Children’s healthcare. Father did not
ask for a change in parent-time.

¶4     Shortly thereafter, the parties entered into a stipulation
(2019 Stipulation). By its express terms, the 2019 Stipulation did
“not resolve the competing petition and counterpetition to modify
custody.” It did, however, set forth a “temporary” parent-time
schedule that would increase Father’s parent-time upon his
planned relocation to Utah. The parties agreed that upon Father’s
relocation, the parties would follow, “on a temporary basis until
further agreement of the parties or further order of the Court,” the
parent-time schedule in Utah Code section 30-3-35.1. Pursuant to
that schedule, Father would exercise five overnights during a
two-week period (an increase of one overnight). The parties
further agreed that if the increased parent-time schedule were to
take effect, they would adhere to it “for at least six (6) months.”
At that point, if either party wanted to change parent-time, the
party could submit a written request communicating the desired
change, after which the parties would attend mediation. And if
the parties had not “otherwise reach[ed] an agreement regarding
a permanent parent-time order” after Father had exercised the
increased schedule for “six (6) months and thereafter,” either
party could “request mediation in writing.”




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¶5      In August 2019, Father made the move to Utah and began
exercising his increased parent-time. The following year, the
district court entered the 2019 Stipulation as an order (2020
Order).

¶6     In August 2020, Father filed a petition to modify the
custody and parent-time awarded in the 2020 Order. In this
petition, Father sought sole physical and legal custody of the
Children based on circumstances that he alleged had changed
since the entry of the 2020 Order. The changes included the
decreased quality of education at the Children’s school, Father’s
desire to teach the Children religious values, Father’s work trips
and the right of first refusal created a “disconnect” between the
Children and Stepmother, the parties’ disagreement over the
Children’s vaccines, Mother’s changing financial situation, and
Mother’s failure to use a Google calendar. Most notably, Father
also alleged that Mother exhibited “inappropriate behaviors” in
front of the Children, causing them mental health issues that
required counseling, which Mother had refused to allow. In a
separate motion, Father asked the court to appoint a custody
evaluator to aid the court in making a custody determination. The
court granted Father’s request and appointed an evaluator
(Evaluator).

¶7      As the case proceeded, the district court held several
pretrial conferences to determine which issues were to be certified
for trial. After much confusion on both sides, the court entered a
pretrial order stating that the issues certified for trial were
intended to resolve (1) Mother’s 2019 petition to modify the
Original Decree, (2) Father’s 2019 counterpetition to modify the
Original Decree, and (3) Father’s petition to modify the 2020
Order. But at the final pretrial conference a few months later,
Mother informed the court that she was “not pursuing” her 2019
petition to modify.




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¶8      Shortly before trial, Father submitted a trial memorandum
to the district court addressing the issues certified for trial.
Regarding “[p]hysical custody/parent time,” Father asserted that
“[j]oint physical custody is appropriate” and requested that the
court award him either “220 overnights to Mother’s 145
overnights” or “equal parent time.” 1 And regarding “[l]egal
custody/terms of parenting plan,” Father asserted that “[j]oint
legal custody is appropriate” and requested that the court
implement a parenting plan filed by Father. Father also requested
changes to child support.

¶9    In response to Father’s request to change child support,
Mother filed an updated financial declaration. Mother is a self-employed realtor. In her financial declaration, Mother listed her
monthly income as $6,599 ($6,000 salary plus $599 child support),
and her annual salary as “approximately” $72,000. Mother
supported the declaration with her 2020 tax return and three
months of bank statements. The tax return listed $106,408 in gross
income and $30,745 of expenses, resulting in a net income of
$75,663. Those expenses included advertising, vehicle expenses,
insurance, office expenses, office rent, office supplies, bank
charges, membership dues and fees, education costs, internet fees,
telephone charges, referral fees, software fees, website charges,
equipment fees, and broker fees.



1. Father’s requested change would have increased his number of
overnights from 130 to 220 and would have decreased Mother’s
overnights from 235 to 145. Father’s alternative request for equal
parent-time would have also greatly changed the number of
overnights awarded to each parent, with Father receiving 182
overnights and Mother receiving 183 overnights. These requests
sought significant changes in the parties’ child-care arrangement,
even though these requests were, technically speaking, requests
for changes to “parent-time” and not to “physical custody.” See
McFarland v. McFarland, 

, 

.


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                            Corn v. Groce


¶10 A two-day bench trial was held in March 2022. At the
outset of the trial, Mother asked for clarification with respect to
what relief Father was requesting. She explained that Father had
requested sole physical custody in his petition to modify but that
he had requested only a change to parent-time in his trial
memorandum. She asserted the difference was relevant because
“based on what [Father’s] requesting, either just additional
parent-time or actually sole legal custody . . . , then that would
change the showing that he needs to make.”

¶11 In response, Father reiterated his position, as set forth in
his memorandum, that he had “changed [his] position from
asking for sole custody” and was seeking only a change in parent-time. Mother objected to “an amendment to the petition to modify
if now [Father is] requesting just a change in parent-time” because
that had “not been pleaded” and it was “not going to be tried by
consent.” The court “note[d] [Mother’s] objection” but concluded
that the trial could proceed because Father’s requested relief
“include[d] a number of items” and was “fairly broad,” which
would allow the court to order relief as it “deem[ed] appropriate.”
The court concluded by directing the parties “to present [their]
evidence regarding the substantial change in circumstances so
that can be considered.”

¶12 Over the course of the trial, the district court heard
testimony from Evaluator, the parties, and multiple other
individuals involved in the Children’s lives. The parties also
presented evidence regarding their monthly incomes.

¶13 Evaluator testified about what custody changes would be
in the best interest of the Children; she specifically did not discuss
whether there had been a change in circumstances. Evaluator
opined that since “the very beginning,” the parties “had difficult
communication,” they were “at odds about parent-time [and]
about the role of each parent,” and Mother “saw herself as the
primary person who would care for the [C]hildren and make



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decisions about them.” She expressed that both parents had
“some fault in the coparenting difficulties.”

¶14 Regarding Mother, Evaluator did not observe any “intense
and sudden mood swings,” as had been alleged by Father. She
noted that Mother “was quite open and forthright about the fact
that she lost her temper with the [C]hildren sometimes” but
concluded that the behavior was “[n]ot out of the ordinary.”
Evaluator further expressed that she had not observed Mother
acting in an “irrational” manner. Regarding Father, Evaluator
observed that in “some circumstances” Father’s actions were not
proportionate and that on occasion, he had been “overly
concerned about relatively small things.”

¶15 Evaluator recommended that the Children have “equal
amounts of time with both parents,” noting that although the
Children “struggle with some anxiety and some stress about
parental conflict,” overall they “are thriving with both parents”
and “have a good relationship with both parents.” She opined that
“both parents demonstrate appropriate decision-making in terms
of the [C]hildren, are good role models for the [C]hildren, and
lead an appropriate lifestyle.”

¶16 Concerning child support and income, Father introduced
Mother’s 2020 tax return as an exhibit. Relying on that document,
Mother testified that her 2020 net income was “right around
$76,000.” She explained that she has “lots of business expenses,”
totaling around “30-something-thousand dollars,” which
generally include a monthly Multiple Listing Service fee, a
monthly payment to her brokerage, a monthly payment for office
rent, yearly dues, and mileage. In addition, Mother noted she pays
for trainings, continuing education classes, and seminars; open
house expenses; signs; and general office expenses such as paper,
business cards, and photos. Lastly, she testified that she deducts
a portion of her cell phone and home internet. Father did not
object at any point during this portion of Mother’s testimony.



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                            Corn v. Groce


¶17 At the close of the trial, the district court issued an oral
ruling, which it later reduced to writing. The court declined to
change the custody status or to alter parent-time, but it agreed to
modify child support payments. Regarding custody and parent-time, the court first noted that although Father sought a change in
custody in his petition to modify, at trial he elected to seek only a
change in parent-time. The court then explained that to modify a
custody order, a party must show both that “(1) a material and
substantial change in circumstances has occurred, and (2) a
modification would be in the best interest of the children.” As
relevant here, the court then made two specific findings
pertaining to the change in circumstances requirement. First, the
court found that “the [2020 Order] in fact reflects the results of
robustly contested litigation aimed at ascertaining the best
interest of the [C]hildren.” Second, the court examined each of
Father’s alleged changed circumstances and found that “there has
not been a material and substantial change in circumstances
shown that would support a modification in the current custody
order.”

¶18 As to child support, the district court concluded that
although there had not been a substantial and material change
sufficient to warrant a change in custody, a change in child
support was nevertheless warranted due to “material changes of
30% or more in the income of a parent.” Father verbally indicated
his agreement with the court’s position. In response, Mother also
agreed to “stipulate to modification of child support,” as long as
her income was set at what “she testified to at trial, which . . . was
$76,000 a year.” The court then ruled:

       So my findings for purposes of child support are
       that the parties’ incomes are as stated in their
       financial   declarations.   [Father’s]   financial
       declaration was stated as $5,808, his monthly
       income. [Mother’s] monthly income stated in her
       financial declaration was actually $6,599. And I



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       went back and looked at the testimony and the
       business expenses that were claimed. And I
       understand that in the real estate business, that
       things go up and down and that . . . the cost of doing
       business goes up and down. And that may change
       from time to time. So I . . . don’t want to see a roller
       coaster going on here, where you’re . . . forced to go
       back and forth . . . each year. So for purposes of child
       support, that is what my ruling is.

Thereafter, the court asked Mother’s counsel to calculate child
support “based on the number of days that each party has the
[C]hildren.”


            ISSUES AND STANDARDS OF REVIEW

¶19 Father now appeals, raising two issues for our review.
First, Father argues the district court abused its discretion when it
declined to modify parent-time on the ground that Father had not
demonstrated a material and substantial change in circumstances.
“When reviewing such a decision, we review the district court’s
underlying findings of fact, if any, for clear error, and we review
for abuse of discretion its ultimate determination regarding the
presence or absence of a substantial change in circumstances. The
district court’s choice of legal standard, however, presents an
issue of law that we review for correctness.” Spencer v. Spencer,

, 

 (quotation simplified).

¶20 Second, Father argues the district court abused its
discretion when it calculated Mother’s income for child support
purposes. “In reviewing child support proceedings, we accord
substantial deference to the district court’s findings and give it
considerable latitude in fashioning the appropriate relief. We will
not disturb that court’s actions unless the evidence clearly
preponderates to the contrary or there has been an abuse of




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discretion.” Twitchell v. Twitchell, 

, 

 (quotation simplified).


                           ANALYSIS

                   I. Custody and Parent-Time

¶21 While not challenging any of the district court’s factual
findings, Father argues the court abused its discretion in
determining there had not been a substantial and material change
in circumstances warranting a modification of parent-time. Father
contends the court “applied the wrong legal standard” when
evaluating whether the changes alleged in his petition to modify
were sufficient to warrant a modification. Specifically, Father
asserts the court should have required a “lesser” showing of a
change of circumstances because (1) he was seeking to modify
parent-time, not custody; (2) he was seeking to modify a
stipulated order; and (3) the provisions in the 2020 Order were
temporary. Father argues that under this “lesser” standard, he
made a sufficient showing to justify a modification. Because
Father’s argument hinges on whether the court correctly applied
the statutory standard for modifying a custody order, we begin
by discussing that standard. We then evaluate the application of
that standard to the factual findings made by the court.

A.    Statutory Standard for Modification of a Custody Order

¶22 To modify a custody order, a district court must engage in
a two-step procedure. First, the court must find that “a material
and substantial change of circumstance has occurred.” Utah Code
§ 30-3-10.4(4)(b)(i). Second, the court must find that “a
modification of the terms and conditions of the order would be an
improvement for and in the best interest of the child.” Id. § 30-3-
10.4(4)(b)(ii).




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¶23 To satisfy the first step, “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.” Hogge v. Hogge, 

 (Utah 1982).
“Only if circumstances have materially and substantially changed
may the court proceed to the second step—a determination as to
the manner in which custody should be modified, if at all, based
on a de novo review of the child’s best interests.” 2 Doyle v. Doyle,

, 

 (quotation simplified). “The district
court’s determination that there has or has not been a [material


2. At the outset of the trial, the parties discussed how to present
their respective cases in light of the two-step approach. Mother
suggested that the district court should “bifurcate[] the process
and handl[e] it in two different phases.” Father pushed back on
Mother’s suggestion, acknowledging that although Father would
not be entitled to relief absent a showing of a material and
substantial change in circumstances, that showing was “so
intertwined” with the second-phase best-interest inquiry “that it
[would] not make sense to hear them separately.” Ultimately, the
court agreed with Father that “these issues are somewhat
intertwined” and declined to bifurcate the trial. Father’s position
and, in turn, the court’s decision, are consistent with Utah
caselaw. Our supreme court has recognized that some early Utah
cases addressing the two-step approach could be read as
supporting the notion that each step should be completely
“bifurcated.” See, e.g., Hogge v. Hogge, 

 (Utah 1982).
However, the court has since clarified that our two-step approach
requires “only analytical—and not formal procedural—
bifurcation,” recognizing that “the evidence supporting changed
circumstances is often the same evidence that is used to establish
the best interests of the child.” Doyle v. Doyle, 

, 

 (quotation simplified).



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                           Corn v. Groce


and] substantial change in circumstances is presumed valid and
is reviewed only for an abuse of discretion.” Harper v. Harper, 

, 

 (quotation simplified).

¶24 “Because the required finding of a material and substantial
change of circumstances is statutory, neither this court nor the
supreme court has purported to—or could—alter that
requirement.” Peeples v. Peeples, 

, 

 (quotation simplified). As such, the change-in-circumstances
requirement applies in all cases where a district court is
considering a petition to modify custody. However, Utah courts
have recognized that in certain cases, a petitioner seeking to
modify a custody order may be required to make a lesser showing
that a change of circumstances qualifies as “sufficiently
substantial and material.” Hogge, 

. Courts have
allowed a lesser showing in two general types of cases.

¶25 The first category of cases turns on “the type of
modification sought.” Haslam v. Haslam, 

 (Utah
1982). “While altering custody orders generally requires a
showing of substantial change in circumstances material to the
modification of custody, a lesser showing may be required when
the change sought is not a change of custody.” Jones v. Jones, 

, 

 (citation omitted). Where a petitioner
is seeking to modify parent-time, rather than custody, “the
petitioner is required to make only some showing” of a material
and substantial change in circumstances, “which does not rise to
the same level as the substantial and material showing required
when a district court alters custody.” Erickson v. Erickson, 

, 

 (quotation simplified). Indeed, a court
may “determine that a change in circumstances warrants
modification of parent-time while simultaneously determining
there is no substantial and material change in circumstances to
justify a modification of custody. In other words, it is not
necessarily erroneous for a court to determine that a particular
change in circumstances is sufficient enough to warrant a change



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                          Corn v. Groce


in a parent-time schedule, but not significant enough to warrant a
modification of custody.” 

¶26 “Custody and parent-time are conceptually distinct.”
McFarland v. McFarland, 

, 

(quotation simplified). “[P]hysical custody encompasses the
ability to make day-to-day decisions in a child’s life,” Blake v.
Smith, 

, 

, whereas “parent-time
more narrowly refers to the amount of time that a parent is
entitled to spend with the child,” Widdison v. Widdison, 

, 

 (quotation simplified). Moreover, there
are two types of physical custody: joint physical custody and sole
physical custody. See Utah Code § 30-3-10.1(3)(a). The “dividing
line” between the two is statutorily defined by “the number of
overnight visits enjoyed by each parent.” McFarland, 

. When a “child stays with each parent overnight for more
than 30% of the year,” the parents have joint physical custody of
the child. Utah Code § 30-3-10.1(3)(a). But when a child stays with
one parent for “at least 70% of the overnights,” that parent is
considered to have “sole physical custody” of the child. See
McFarland, 

. Therefore,

      when a change occurs that causes one parent to
      obtain enough additional overnights to move from
      one category to another (e.g., from 25% of
      overnights to 35%, or from 65% to 75%), there has
      been a change in physical custody. But when a
      change occurs in which one parent obtains a few
      additional overnights but not enough to move from
      one category to another, the change constitutes only
      a change in parent-time, and not a change in
      physical custody, as that term is statutorily defined.

 (quotation simplified). Thus, although parent-time and
custody are conceptually distinct, a parent-time schedule is
merely a subspecies of a custody order, see Utah Code § 30-3-10(1),



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                            Corn v. Groce


and modification of a parent-time schedule is therefore governed
by the same statute that controls modification of a custody order,
see id. § 30-3-10.4.

¶27 The second category of cases turns on “the nature of the
underlying custody award.” Zavala v. Zavala, 

,

. The change-in-circumstances requirement for
modifying a custody award “is based in the principles of res
judicata, for courts typically favor the one-time adjudication of a
matter to prevent the undue burdening of the courts and the
harassing of parties by repetitive actions.” Taylor v. Elison, 

, 

 (quotation simplified). But not all
custody decrees are adjudicated; indeed, a custody award may be
“determined by stipulation or default.” Elmer v. Elmer, 

 (Utah 1989). In cases where a district court is considering
an unadjudicated award, such as the stipulated award at issue in
this case, “the res judicata policy underlying the changedcircumstances rule is at a particularly low ebb.” 

 Because of this,
“a lesser showing will support modifying a stipulated award than
would be required to modify an adjudicated award.” Zavala, 

.

¶28 A court assessing exactly how much lesser the required
showing might be should not “view the adjudicated/stipulated
dichotomy as entirely binary” but should instead “examine the
origin of the order in question and analyze the extent to which the
order—even if stipulated—reflects the result of robustly contested
litigation aimed at ascertaining the best interest of the child.”
Peeples, 

. Thus, in a situation where a
custody order is technically stipulated, the court may nevertheless
decline to water down the change-in-circumstances showing if the
circumstances are such that the court has a “relatively high
confidence that the custody order was in line with the best
interests of the children.” Id. ¶ 20; see also id. ¶ 18 (concluding that
although the custody order being modified was technically
stipulated, the district court did not err in requiring a normal



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change-of-circumstances showing because the stipulation was
entered after the parties participated in years of litigation, during
which they were represented by counsel); Spencer v. Spencer, 

, 

 (same).

B.     Modification of Parent-Time

¶29 With this legal standard in mind, we now turn to Father’s
contention that the district court abused its discretion in finding
that he had not shown a sufficient change in circumstances to
justify modifying parent-time. Father raises three arguments in
support of his contention. First, he argues that the changes
occurring between the 2019 Stipulation and the March 2022 trial
constitute “sufficient” changes to justify modification of parent-time under the lesser change of circumstances showing. Second,
he argues that modifying the 2020 Order based on the 2019
Stipulation also required a lesser showing because the 2020 Order
was not the product of “robustly contested litigation.” Third, he
asserts that the “conditional” nature of the 2019 Stipulation
should have factored into the court’s change-of-circumstance
analysis. We address each argument in turn.

1.     Allegations of Changed Circumstances

¶30 In arguing that he made a sufficient showing to justify a
change in parent-time, Father points to three things that occurred
between the 2019 Stipulation and the March 2022 trial date that he
believes constitute sufficient changes to justify modification of
parent-time. Those changes are (1) Father’s relocation to Utah,
(2) the Children’s strong relationship with Stepmother, and
(3) Mother’s troubling behaviors and “emotional reactivity.” But
the first two changes on which Father focuses here were not
alleged in his petition to modify (or even addressed in his trial
memorandum). Nor did they constitute changes that have
occurred since the entry of the 2020 Order. And the district court
properly concluded that the changes that were alleged in Father’s
petition did not justify revisiting the 2020 Order.


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                          Corn v. Groce


¶31 Father’s petition alleged several instances of changed
circumstances. After hearing two days of evidence, the district
court rejected all of them. It found that three of Father’s
allegations—those relating to the Children’s schooling, Mother’s
alleged cohabitation, and the issue with vaccinations and medical
care—were not supported by any credible evidence. It found that
Father’s need to participate in training courses for his employer
once or twice a year and Mother’s failure to use a Google calendar
were not material changes. And, after analyzing Mother’s
finances, it rejected Father’s assertion that Mother could not
financially provide for the Children.

¶32 The district court also considered and appropriately
rejected the allegation raised by Father that Mother’s behaviors
and emotional reactivity were a changed circumstance that had
negatively impacted the Children. Instead, it found that the way
in which both Mother and Father have interacted contributed to
the Children’s need for counseling and that this situation was not
a change from prior interactions. It reached a similar conclusion
with respect to Father’s allegation that Mother had attempted to
undermine him with the Children. And Father has not challenged
any of these factual findings.

¶33 Father’s two remaining arguments are that his relocation
to Utah and the strong relationship that the Children had forged
with Stepmother constitute changed circumstances. But these
arguments fail to account for the fact that Father had already
remarried and planned on returning to Utah at the time of the
2019 Stipulation. Indeed, the primary rationale for the 2019
Stipulation (on which the 2020 Order was based) was Father’s
planned relocation and the 2020 Order had already increased
Father’s parent-time based upon that relocation.

¶34 We therefore conclude that the district court correctly
applied the change-in-circumstances requirement when
determining that Father had not demonstrated a sufficient



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                           Corn v. Groce


change. As the party seeking modification, Father bore the burden
of demonstrating “(1) that since the time of the previous decree,
there [had] been changes in the circumstances upon which the
previous award was based; and (2) that those changes [were]
sufficiently substantial and material to justify reopening the
question of custody.” Hogge v. Hogge, 

 (Utah 1982).
After considering the evidence presented over the course of the
two-day trial, the court concluded that Father had not carried his
burden on any of the changes alleged in his petition to modify.
Even assuming, for purposes of the discussion, that Father needed
to make only a “lesser” showing of changed circumstances, it was
not an abuse of discretion here for the court to determine that
Father’s showing was insufficient. Because Father has not
demonstrated that the court abused its discretion in so finding, we
will not second-guess the court’s determination. See Harper v.
Harper, 

, 

 (“The district court’s
determination that there has or has not been a substantial change
in circumstances is presumed valid and is reviewed only for an
abuse of discretion.” (quotation simplified)).

2.     Stipulated Order

¶35 Father next contends the district court should have allowed
him to get by with a lesser showing of a change of circumstances
because he was seeking to modify a stipulated order. However,
on the facts of this case, Father has not demonstrated that the court
abused its discretion in declining to allow a lesser showing on this
basis.

¶36 In its order declining to modify Father’s parent-time, the
district court considered whether the 2020 Order should be
considered stipulated or adjudicated. Citing Zavala v. Zavala, 

, 

, the court explained that the
“adjudicated/stipulated dichotomy is not strictly binary” but
instead requires an examination of the “origin” of the underlying
order. See id. ¶ 17. The court then found that, “after examining the



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record and considering the testimony presented, the [2020 Order]
in fact reflects the results of robustly contested litigation aimed at
ascertaining the best interest of the [C]hildren.”

¶37 Although Father believes the district court should have
permitted him to make a lesser change-in-circumstances showing
because the 2020 Order was stipulated, he has not directly
challenged the court’s factual finding that the 2020 Order was the
“result[] of robustly contested litigation aimed at ascertaining the
best interest of the [C]hildren.” Given the court’s unchallenged
finding, which is supported by the record and entitled to
deference on appeal, we will not reweigh the evidence. See
Lobendahn v. Lobendahn, 

, 

 (“The
existence of conflicting evidence in the record is not sufficient to
set aside a district court’s findings. The pill that is hard for many
appellants to swallow is that if there is evidence supporting a
finding, absent a legal problem—a fatal flaw—with that evidence,
the finding will stand, even though there is ample record evidence
that would have supported contrary findings.” (quotation
simplified)). Consequently, Father has not demonstrated that the
court abused its discretion in rejecting his argument that the
nature of the 2020 Order allowed him to make a lesser showing of
a substantial and material change in circumstances.

3.     Temporary Order

¶38 Lastly, Father contends the district court should have
considered the 2020 Order as a “temporary order[], which
require[s] no showing of changed circumstances to modify, rather
than a fully enforceable custody order.” See Harper v. Harper, 

, 

 (“[U]nlike a permanent custody
order, a temporary custody order is modifiable without a showing
of a substantial and material change in circumstances.”). We
disagree with Father’s contention that the 2020 Order was
“temporary.”




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                           Corn v. Groce


¶39 Because the 2020 Order was stipulated, Father contends it
must be “interpreted as if it were a contract between the parties.”
See McQuarrie v. McQuarrie, 

, 

. To that
end, he argues, we should “consider each provision [of the 2020
Order] in relation to all others, with a view toward giving effect
to all and ignoring none.” 

 (quotation simplified).

¶40 The 2020 Order provides that “[u]pon [Father’s] move to
Utah, on a temporary basis until further agreement of the parties
or further order of the Court, [Father] shall exercise [extended]
parent-time” pursuant to statute. The 2020 Order then outlines the
procedure for changing that parent-time: “[A]fter exercising
[extended] parent-time for at least (6) months and communicating
in writing the desired change in parent-time, the parties will
mediate parent-time.”

¶41 Taken together, Father contends these provisions indicate
(1) that the conditional parent-time schedule was meant to be
temporary and (2) that by entering into the 2019 Stipulation, the
parties essentially agreed that Father would not be required to
show a change in circumstances in order to modify parent-time.
Father is wrong on both fronts.

¶42 First, the extended parent-time schedule did not have an
expiration date. Although the provision refers to the schedule
being used on a “temporary basis,” when considered in
conjunction with the rest of the provision, it is clear that the
schedule was intended to be ongoing. Indeed, “temporary basis”
is followed immediately after with the phrase “further agreement
of the parties or further order of the Court.” As a whole, then, this
implies that the schedule outlined in the 2020 Order would
continue until the parties could agree on a new schedule or until
the court ordered something different. And if neither the parties




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                           Corn v. Groce


nor the court sought to change the schedule, then it would remain
in place. 3

¶43 Second, nothing in the 2020 Order explicitly or impliedly
eradicated the change-in-circumstances requirement; instead,
that order merely set forth part of the process for changing
custody. Pursuant to the 2020 Order, the only condition the
parties put on modifying the extended parent-time schedule was
to notify the other party in writing, triggering a mediation. Father
argues that “interpreting that language to mean nothing more
than how a party would normally go about modifying a custody
order would render that language . . . superfluous.” Thus, in
Father’s view, “when Mother and Father agreed that either party
could request to modify the parent-time once the conditions in the
provision were met, . . . the parties essentially agreed that
satisfaction of the conditions (Father’s relocation and exercising
the section 30-3-35.1 schedule for six months) constitute a changed
circumstances sufficient to modify this parent-time in the future.”

¶44 But “essentially agreeing” is not enough to override the
change-in-circumstances requirement. Cf. 

 ¶¶ 23–27
(concluding that a divorce decree did not require payment of
alimony after remarriage because there was no provision
“specifically overrid[ing] the statutory presumption” that
alimony terminate upon remarriage (quotation simplified)). The
district court is statutorily required to find a material and
substantial change in circumstances prior to modifying a custody
order. See Utah Code § 30-3-10.4. Thus, without a specific


3. This conclusion is also bolstered by the fact that the 2020 Order
contains other provisions that were not meant to be temporary.
For example, the 2020 Order provides that summer parent-time is
to be scheduled with Mother exercising “first choice . . . in odd
years.” This language is closely mirrored in a provision outlining
which years the parties can claim the Children for tax purposes,
with the parties to “alternate years.”


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                          Corn v. Groce


provision overriding the change-in-circumstances requirement,
the court was bound by statute to find that circumstances had
sufficiently changed prior to modifying the 2020 Order.4 See
McQuarrie, 

, ¶¶ 23–27.

¶45 In sum, the 2020 Order was not temporary. The district
court therefore did not err when it declined to treat that order as
a temporary order.

                        II. Child Support

¶46 Next, Father argues the district court abused its discretion
when ordering child support. Specifically, Father contends the
court erred in calculating Mother’s income because the court
deducted Mother’s business expenses from her gross income even
though Mother did not prove what those expenses were. But we
discern no abuse of discretion in the court’s calculation of
Mother’s net income.

¶47 “A noncustodial parent’s child support obligation is
calculated using each parent’s adjusted gross income.” Twitchell
v. Twitchell, 

, 

 (quotation
simplified). When a parent is self-employed, “gross income” is
calculated by “subtracting necessary expenses required for selfemployment . . . from gross receipts.” Utah Code § 78B-12-
203(4)(a). However, “[o]nly those expenses necessary to allow the
business to operate at a reasonable level may be deducted from
gross receipts.” Id. The individual claiming business expenses
carries the burden of demonstrating that “those expenses are
necessary to allow the business to operate at a reasonable level.”

4. Moreover, the district court specifically found that nothing in
the 2019 Stipulation or the 2020 Order “would make inapplicable
the statutory requirement that a party requesting a change to the
custody order must allege and prove a material and substantial
change in circumstances.” Father has not challenged this finding
as clearly erroneous.


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                           Corn v. Groce


Ouk v. Ouk, 

, 

 (quotation
simplified). Because the district court is “best equipped to find
whether expenses are necessary,” we accord a court broad
discretion to make such determinations. Barrani v. Barrani, 

, 

 (quotation simplified). “Generally,
so long as the steps by which the ultimate conclusion on each
factual issue was reached are apparent, a [district] court may
make findings, credibility determinations, or other assessments
without detailing its justification for finding particular evidence
more credible or persuasive than other evidence supporting a
different outcome.” Twitchell, 

 (quotation
simplified).

¶48 Shortly before trial, Mother filed an updated financial
declaration, which listed her net monthly income as $6,599.
Mother supported the declaration with her 2020 tax return and
three months of bank statements. The tax return listed $106,408 in
gross income and $30,745 of expenses, resulting in a net income of
$75,663. Those expenses included advertising, vehicle expenses,
insurance, office expenses, office rent, office supplies, bank
charges, membership dues and fees, education costs, internet fees,
telephone charges, referral fees, software fees, website charges,
equipment fees, and broker fees. At trial, Father presented
Mother’s 2020 tax return as an exhibit, and Mother testified
regarding the information contained therein. Mother’s testimony
regarding her income was largely consistent with the information
listed in her tax return. She testified that her 2020 net income was
“right around $76,000,” because even though her gross income
was over $106,000, she had “lots of business expenses” totaling
around “30-something-thousand dollars.” Mother then listed a
number of those expenses. Father did not object during this
portion of Mother’s testimony, nor did he object to the admission
of the underlying evidence; indeed, Mother’s tax return was
offered into evidence by Father himself.




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                           Corn v. Groce


¶49 Based on this evidence, the district court ordered that child
support payments be calculated using “the incomes listed on the
parties’ financial declarations,” with Father’s monthly income set
at $5,808, and Mother’s monthly income set at $6,599. The court
explained, “Real estate income and costs fluctuates, and the Court
does not want to see a change of child support every year, and
therefore sets child support with the income listed on the financial
declaration.” We discern no abuse in the district court’s
calculation of Mother’s net income. As the person claiming
business expenses, Mother bore the burden of proving that her
expenses were necessary. See Ouk, 

. To that
end, Mother submitted a financial declaration, which was
supported by a tax return and bank statements, showing her
business expenses. And at trial, she further testified as to these
expenses. All this evidence was unrefuted by Father. Because
there was evidence before the court regarding Mother’s business
expenses, we must defer to the court’s determination that Mother
has carried her burden of proving those expenses.


                         CONCLUSION

¶50 The district court did not abuse its discretion when it
declined to modify Father’s parent-time. In particular, the court
did not abuse its discretion in concluding, on this record, that
Father had not made even a “lesser” showing of changed
circumstances. And the court did not abuse its discretion in
calculating Mother’s net income.

¶51    Affirmed.




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