2025 UT App 136
THE UTAH COURT OF APPEALS
JAMES M. DUFFIN III,
Appellant,
v.
BRANDY E. DUFFIN,
Appellee.
Opinion
No. 20230808-CA
Filed September 5, 2025
Third District Court, West Jordan Department
The Honorable Matthew Bates
No. 184400962
Julie J. Nelson, Attorney for Appellant
T. Jake Hinkins, Attorney 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 James M. Duffin III and Brandy E. Duffin divorced in April
2020 and were awarded joint legal custody of their two children.
Brandy 1 was designated the primary physical custodian, and
James was awarded alternative statutory minimum parent-time.
Shortly after the divorce was finalized, James filed a petition to
modify parent-time and the right of first refusal, which the court
denied. James now appeals that denial. For the reasons set forth
below, we affirm.
1. Because the parties share the same last name, we refer to them
by their given names.
Duffin v. Duffin
BACKGROUND
¶2 James and Brandy were married in 2015 and are the
parents of two minor children (the Children). The eldest child
(Son) has been diagnosed with autism spectrum disorder and has
special needs. In 2018, James filed for a divorce. He requested that
the court award him equal parent-time in accordance with Utah
Code section 81-9-305. 2 The matter proceeded to a bench trial in
March 2020.
¶3 The district court awarded the parties joint legal custody of
the Children, with Brandy designated as the primary physical
custodian. The court ordered the parties to “discuss and try to
reach agreement on questions of education, medical decisions,
religion, and other joint legal custody issues.” However, in the
event that the parties could not reach an agreement on a particular
issue, the court determined that Brandy would “have final say in
the matter.”
¶4 While the district court did not grant James’s request for
equal parent-time, it did award him more parent-time than the
statutory minimum schedule. Specifically, the court ordered that
James have five overnights with the Children in each two-week
period, pursuant to Utah Code section 81-9-303. The court
emphasized that this ruling was “not meant in any way to
diminish the role of either party as a parent or to disrespect the
importance of either party as a parent, but [was] simply a practical
recognition that ping ponging the [C]hildren back and forth 50
2. The statutory provisions of Title 30 of the Utah Code that were
in effect at the time of the district court proceedings have since
been renumbered and recodified as part of the Utah Domestic
Relations Code, which is now found in Title 81 of the Utah Code.
Because the provisions relevant to our analysis have not been
substantively amended, we cite the recodified version for
convenience.
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percent of the time [was] not in the best interest of [the Children].”
The court also determined that there would be “a right of first
refusal only on overnights,” reasoning that “during the daytime,
particularly in a case like this, having any other right of first
refusal is unproductive.” The parties were also ordered to
“equally share the reasonable work-related childcare expenses.”
¶5 In making the custody and parent-time awards, the district
court considered relevant statutory and case law custody factors.
The court found that many of the factors did not weigh in favor
of either party and that James and Brandy were both involved
parents and had good relationships with their children. But the
court also found that certain factors weighed in favor of Brandy
being the custodial parent and of James having something less
than equal parent-time but more than the statutory minimum. In
particular, the court found that while both of the Children would
benefit from a schedule that would not require them to “ping
pong . . . back and forth between homes,” having a schedule
where the Children are “getting up most of the time in the same
home when they’re going to school” and having “the same
routine as much as possible” was particularly important given
Son’s autism diagnosis. The court also found that while James had
been “supportive of” Son’s therapy, Brandy had been more
involved and had been primarily responsible for arranging much
of the therapy. Moreover, James’s lack of “geographic proximity”
to the Children weighed against equal parent-time given that
James lived forty minutes away by car, which required “a lot of
driving time” for each transition.
¶6 In September 2020, James filed a petition to modify based
on several changed circumstances. As relevant here, he argued
that a modification was warranted because, since the entry of the
divorce decree, he had moved less than four miles from Brandy’s
residence and closer to the Children’s school. He again requested
that the court award him equal parent-time.
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¶7 In June 2021, James moved to amend his petition to modify
to address the right of first refusal. James alleged that Brandy had
obtained full-time employment and had “enrolled the [Children]
in full-time daycare” without informing him of her intent to do
so. He further alleged that because of this change, Brandy was no
longer available to help Son with his therapy, and the therapy was
now being facilitated by the daycare provider. Given that James
was “available during the day to provide actual care for the
[Children] and . . . to help [Son] with his . . . therapy,” James
requested that the court modify the decree so that each party
would “have first right of refusal to care for the [C]hildren when
the other parent is unable to be with the [C]hildren for more than
four (4) hours.”
¶8 Shortly thereafter, James filed a motion to enforce. In
support of that motion, James averred that Brandy had failed to
follow the decree as far as “discuss[ing] joint legal custody issues”
because she had enrolled the Children in daycare without
discussing it with him. He asked that the court find her in
contempt “for her failure to involve [him] in joint legal custody
decisions regarding the [Children].”
¶9 The district court held a two-day bench trial on James’s
amended petition to modify in May 2023. The court entered its
findings of fact, conclusions of law, and final order in August
2023. The court found that, since the entry of the decree, James
had relocated to be closer to the Children, and the communication
between the parties had become less “hostil[e] and antagonis[tic]”
and more “courteous and polite.” The court found that these
things, taken together, constituted a material change in
circumstance that warranted revisiting custody and parent-time.
¶10 The district court then made several findings concerning
the change in circumstance. First, the court found that the
Children were “thriving” under the current arrangement. The
court recognized that although the younger child had been having
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tantrums, Brandy had been taking him to therapy and he had
been responding well to it. The court found that James and
Brandy were both “actively involved in parenting” the Children,
which included attending school conferences and Son’s therapy.
¶11 Second, the district court found that although the
communication between the parties had improved, it was “still
not great.” In particular, the court found that James was “often
slow to respond to questions from Brandy and in some cases he
never respond[ed],” which made the court “concerned” about
“the parties’ ability to effectively make decisions together.”
¶12 Third, the district court addressed Brandy’s final say
authority and her decision to enroll the Children in daycare. The
court found that Brandy did not abuse her final say by enrolling
the Children in daycare “because the parties only have an
overnight right of first refusal.” The court explained,
The parties are free to use their individual discretion
to find surrogate care providers during their parent-time. Brandy’s decision to enroll the [C]hildren in
daycare was a reasonable exercise of her parental
authority over the [C]hildren during her parent-time. And it really is no different than [James]
arranging for his mother or another family member
to watch the [C]hildren during his parent-time.
. . . [T]he Court finds that surrogate care during a
parent’s parent-time is not a legal custody issue in this
case, but is a day-to-day child management issue.
(Emphasis added.)
¶13 Lastly, the district court determined that “all other findings
made by the Court in support of its initial child custody and
parent-time decision in 2020 remain the same.”
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¶14 Having addressed the change in circumstance, the district
court then examined whether a modification of the current
custody and parent-time schedule would be in the Children’s best
interest. Ultimately, the court determined that the Children’s best
interest would be best served by “maintain[ing] the status quo.”
¶15 The district court found that the “biggest factor” weighing
against a modification was that the Children were “thriving”
under the current schedule and there was “no reason to amend a
custody and parent-time schedule where the [C]hildren [were]
otherwise thriving.” The court again noted the issue of the
younger child’s tantrums; however, the court found there was “no
evidence” that changing parent-time or custody would help the
tantrums. The court also found there was “no evidence that a
parent-time change [was] needed to correct any other problem or
issue with the [C]hildren.”
¶16 Next, the district court addressed the parties’
communication and the decision-making framework. The court
stated that it was “concerned about the parties’ ability to co-parent on a 50/50 schedule.” The court explained, “50/50 is for
parents who co-parent well. It requires mutual respect, flexibility,
and frequent communication—and the parties do not yet have
that.” And the court declined to change the parties’ decision-making framework. Regarding the final say, the court found that
the arrangement with Brandy having the final say “seem[ed] to be
working well.” Moreover, given James’s “slowness or failures to
communicate” with Brandy, the court was “particularly averse to
changing the right of first refusal” because it did “not want to
create a situation where the parents might have to communicate
regularly about whether one of them is going to have the
[Children] on the other’s parent-time while the other works.” In
the court’s view, such an arrangement would make it “difficult
for Brandy to arrange daycare” and “it would not be healthy for
the [C]hildren to have constant uncertainty about where they
would be before and after school.” The court also rejected James’s
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suggestion that he be allowed to declare his intent to watch the
Children weeks in advance, finding it “unworkable given the
poor communication that the parties have right now, particularly
[James’s] poor communication.”
¶17 Finally, having determined that the decision to enroll the
Children in daycare “was a proper exercise of [Brandy’s] physical
custody of the [C]hildren when she had them,” the district court
denied James’s motion to enforce and found that Brandy was not
in contempt.
ISSUES AND STANDARDS OF REVIEW
¶18 James now appeals, raising two issues for our review. First,
he argues that the district court employed the wrong legal
standard when considering his request for equal parent-time
because it determined that “frequent communication” is a
prerequisite to equal parent-time. “We review custody
determinations under an abuse of discretion standard, giving the
district court broad discretion to make custody awards.”
Lobendahn v. Lobendahn, 2023 UT App 137, ¶ 18,
540 P.3d 727
(quotation simplified). But “whether the trial court employed the
proper standards presents a legal question which is reviewed for
correctness.” Diversified Striping Sys. Inc. v. Kraus,
2022 UT App 91,
¶ 46,
516 P.3d 306 (quotation simplified).
¶19 Second, James argues that the district court erred in
determining that the decision to send the Children to daycare was
not a legal custody decision and, as a consequence, erred in
refusing to hold Brandy in contempt, in denying a daytime right
of first refusal, and in requiring James to pay for half of the
daycare costs. “[W]e review the district court’s interpretation of a
statute for correctness.” Lay v. Lay,
2018 UT App 137, ¶ 4,
427 P.3d
1221. We otherwise review the court’s custody determinations for
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an abuse of discretion and the underlying factual findings for
clear error. Lobendahn, 2023 UT App 137, ¶ 18. 3
ANALYSIS
I. Parent-Time
¶20 James argues that the district court applied the wrong legal
standard when considering his request for equal parent-time.
More specifically, he contends that the court erroneously
“treat[ed] frequent communication as a prerequisite to equal
parent-time.” We disagree with this characterization of the court’s
ruling.
¶21 To modify a custody order, the district court must engage
in a two-part test. First, the court must find that “a substantial and
material change of circumstance has occurred.” Utah Code § 81-
9-208(4)(b)(i). Once the court finds such a changed circumstance,
it must then find that “a modification . . . would be an
improvement for and in the best interest of the minor child.” Id.
§ 81-9-208(4)(b)(ii). In making the latter determination, “the court
shall, in addition to other factors the court considers relevant,
consider the factors described in Sections 81-9-204 and 81-9-205,”
id. § 81-9-208(4)(a), and, as relevant here, section 81-9-305. “The
court shall give substantial weight to the existing joint legal
custody or joint physical custody order when the minor child is
thriving, happy, and well-adjusted.” Id. § 81-9-208(4)(c).
¶22 While all the custody factors are important, “each is not on
equal footing.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26,
989
P.2d 491. “The district court generally has discretion to determine,
3. James raised an additional issue in his opening brief; however,
prior to oral argument he filed a suggestion of mootness notifying
us that the issue is now moot. We therefore do not address the
issue.
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based on the facts before it and within the confines set by the
appellate courts, where a particular factor falls within the
spectrum of relative importance and to accord each factor its
appropriate weight.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 20,
509 P.3d 806 (quotation simplified). Nevertheless, a court commits
legal error where it fails to accord the appropriate level of weight
to a critical factor or where it relies too heavily on a less critical
factor. See Cummings v. Cummings,
821 P.2d 472, 478–80 (Utah Ct.
App. 1991) (reversing a custody modification where the district
court failed to give proper consideration or weight to the prior
custody arrangement and relied too heavily on the child’s
preference).
¶23 Here, the district court found that James’s relocation closer
to Brandy and the “decrease in the hostility and antagonism
between the parties in their communication” constituted a change
in circumstance sufficient to warrant the reconsideration of
parent-time. However, after considering the changed
circumstance and “the facts found at trial,” the court determined
that it was in the Children’s best interest “to maintain the status
quo.” In support of this decision, the court considered, among
other things, the parties’ ability to co-parent and communicate,
finding as follows: “The Court is . . . concerned about the parties’
ability to co-parent on a 50/50 schedule. 50/50 is for parents who
co-parent well. It requires mutual respect, flexibility, and frequent
communication—and the parties do not yet have that.” (Emphasis
added.) James attempts to frame the court’s decision to not
modify parent-time as legal error by arguing that the above
emphasized phrases indicate that the court treated “frequent
communication” as a prerequisite to ordering equal parent-time.
This attempt is unavailing, however, because James’s selective
focus misreads the court’s determination.
¶24 In addition to expressly incorporating all findings “in
support of its initial child custody and parent-time decision,” the
district court made several new findings in support of its decision
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to “maintain the status quo.” These findings focused on multiple
things, only one of which was the parties’ ability to co-parent and
communicate. Critically, the court found that the “biggest factor”
weighing against a modification was the fact that the Children
were “thriving” under the current schedule, and the court saw
“no reason to amend a custody and parent-time schedule where
the [C]hildren [were] otherwise thriving.” The court also found
no evidence of any issue with the Children that needed to be
corrected by changing parent-time.
¶25 While the district court clearly considered communication
an important factor in this case, we do not agree with James that
the court viewed “frequent communication” as a prerequisite to
equal parent-time. The court elected to revisit parent-time based
partly on an improvement in the tone of the parties’
communication. But after examining the improved
communication along with the other facts found at trial, the court
determined that the communication had not improved to the
degree that a modification “would be an improvement for and in
the best interest” of the Children. Utah Code § 81-9-208(4)(b)(ii).
The statement with which James takes issue is merely the
precursor to the court detailing why the parties’ current
communication did not suggest that equal parent-time would be
in the best interest of the Children. That is, the court found the
communication between the parties was “poor” and that James in
particular had demonstrated “slowness or failures to
communicate.” Thus, the court’s reference to “frequent
communication” must be read in the context of what the court
considered as important to the Children’s best interest. And as
James himself recognizes, the court was allowed to consider the
parties’ “co-parenting skills,” including the “ability to
appropriately communicate with the other parent.” Id. §§ 81-9-
204(4)(c)(ii), -205(5)(c).
¶26 Additionally, James argues that the district court abused its
discretion by declining his request for equal parent-time based on
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an “incorrect understanding” that an equal parent-time
arrangement requires more communication than the alternative
minimum parent-time that the court originally ordered. Compare
id. § 81-9-303(6) (alternative minimum parent-time schedule
involves at least four parent-time exchanges over two weeks), with
id. § 81-9-305(3)(a) (equal parent-time schedule involves four
parent-time exchanges over two weeks). This argument is not
persuasive because, as already discussed, the parties’
communication was but one of the factors the court relied upon
in making its decision. The court placed significant weight on the
fact that the Children were “thriving” under the current parent-time schedule, mentioning this fact multiple times and explicitly
stating that it was the “biggest factor” driving its decision to
maintain the current schedule. See id. § 81-9-208(4)(c) (“The court
shall give substantial weight to the existing joint legal custody or
joint physical custody order when the minor child is thriving,
happy, and well-adjusted.”); accord Lobendahn,
2023 UT App 137,
¶ 39. It is therefore inaccurate to say that the court denied James’s
request based solely on the understanding that the parties’
current arrangement required less communication than the equal
parent-time James sought.
¶27 For all these reasons, the district court did not err or abuse
its discretion in denying James’s petition to modify parent-time.
II. Daycare
¶28 The second issue raised by James concerns the district
court’s rulings related to daycare for the Children during
Brandy’s parent-time. James takes issue with both the court’s
determination that Brandy enrolling the Children in daycare was
not a joint legal custody issue and the court’s refusal to modify
the right of first refusal to include a daytime right. He also
contends that the court abused its discretion by requiring him to
pay for half of the cost of daycare. We address each argument in
turn.
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A. Legal Custody
¶29 The district court rejected James’s contention that Brandy’s
decision to send the Children to daycare during her parent-time
was a legal custody decision. The court found that “surrogate care
during a parent’s parent-time is not a legal custody issue in this
case, but is a day-to-day child management issue.” And consistent
with this determination, the court concluded that the parties were
“free to use their individual discretion to find surrogate care
providers during their parent-time.” James argues that the court
erred by classifying the daycare decision as a physical custody
decision. He asserts that in this case, where parental care from the
other parent is available and daycare functions both as school and
medical care for Son, the decision is a legal one. We disagree.
¶30 Generally, the distinction between legal and physical
custody turns on the type of decision at issue. “Legal custody
encompasses the ability to make major decisions in a child’s life,
while physical custody encompasses the ability to make day-to-day
decisions in a child’s life.” Blake v. Smith, 2023 UT App 78, ¶ 15,
534
P.3d 761 (emphasis added); see also Custody, Black’s Law
Dictionary (12th ed. 2024) (defining “legal custody” as “[t]he
authority to make significant decisions on a child’s behalf,
including decisions about education, religious training, and
healthcare”). As provided in Utah law and as the primary
physical custodian, Brandy was entitled to control the Children’s
“daily activities” during her parent-time. Hansen v. Hansen,
2012
UT 9, ¶ 17,
270 P.3d 531; see also Utah Code § 81-9-203(12) (“Each
parent may make decisions regarding the day-to-day care and
control of the minor child while the minor child is residing with
that parent.”). That James was sometimes available to provide
parental care while Brandy was at work does not transform the
nature of the underlying decision from a day-to-day decision to a
major decision. Here, regardless of who is caring for the Children
during the day, the decision is one that implicates Brandy’s day- to-day life with the Children during her parent-time.
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¶31 James’s attempt to couch the daycare decision as a legal
decision based on the notion that he is available to provide
parental care is not persuasive. At the time James filed his petition
to modify, he was unemployed and “available during the day” to
care for the Children. By the time of trial, however, James had
obtained full-time employment. Nevertheless, James testified that
“routine daycare” was “not necessary” because he had “the
flexibility” to provide parental care, and if he was not available to
do so, he had “reliable people”—including his mother and
neighbors—who could step in and help. But James has made no
attempt to square his initial argument with the reality that he is
now unable to provide the Children parental care for the entirety
of the time Brandy is at work and must rely at least partially on
surrogate care of his own choosing. We therefore agree with the
district court that “Brandy’s decision to enroll the [C]hildren in
daycare . . . . really is no different than [James] arranging for his
mother or another family member to watch the [C]hildren during
his parent-time.” 4
¶32 And the evidence presented at trial belies the notion that
Brandy’s decision to send the Children to daycare constituted an
educational or medical decision. Indeed, there was no evidence
presented at trial demonstrating that the daycare in this case
functions as the Children’s school. On appeal, James’s attempt to
equate daycare to school is seemingly based upon the fact that the
decree “treats daycare the way other decrees often treat school—
4. In his reply brief, James attempts to argue that his decision to
enlist free surrogate care is different from Brandy’s decision to
pay for surrogate care because one of the Utah Code’s advisory
guidelines provides that “child care arrangements with nominal
or no charge” “are preferred.” Utah Code § 81-9-202(13)(c). While
this may be true, it does not follow that a suggested preference in
an advisory guideline establishes that the decision to use paid
versus free surrogate care is fundamentally different; all it
establishes is that a specific arrangement is preferred.
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as the exchange place.” But this has nothing to do with whether
the Children are being educated while at daycare. 5 Similarly,
there was no evidence presented that this daycare is a specialized
daycare that provides medical treatment for Son’s autism.
Although Son participated in therapy while at the daycare facility,
at oral argument before this court, Brandy’s attorney explained
that Son’s therapist was not affiliated with the daycare. Rather,
the therapist would travel to wherever Son was located—either
the home or the daycare—and provide the therapy. James did not
take issue with Brandy’s explanation of how the therapy was
being applied. 6
5. We do not discount the notion that learning is inherent in early
childhood settings and that in many situations, the selection of a
daycare for a young child and that of a pre-school program may
involve similar considerations. But our domestic relations statutes
do not define “education” or “daycare” and, if anything, suggest
a distinction between the “parenting functions” of “attending to
the daily needs of the minor child, such as feeding, clothing,
physical care, grooming, supervision, health care, day care, and
engaging in other activities which are appropriate to the
developmental level of the minor child” and “attending to
adequate education for the minor child.” Utah Code § 81-9-101(7).
6. Additionally, James has wholly ignored that the district court
specifically addressed therapy in the decree, ruling as follows:
Each party will set the therapy for the minor child,
which that party will attend at a time when that
party has parent-time with the minor child. The
therapy schedule will not infringe on the other
party’s parent-time and the parties will be allowed
to pick up the [C]hildren with enough time to attend
scheduled therapy appointments during that
party’s parent-time.
(continued…)
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¶33 Based on the foregoing, the district court did not err, on
this record, in determining that Brandy’s decision to send the
Children to daycare was a physical custody decision and that,
consequently, Brandy was not in contempt for failing to discuss
that decision with James.
B. Right of First Refusal
¶34 Next, James argues that even if the district court correctly
determined that the decision to send the Children to daycare is a
physical custody decision, the court nevertheless abused its
discretion by denying his request to modify the overnight right of
first refusal to include a daytime right “when the other parent is
unable to be with the [C]hildren for more than four (4) hours.” He
contends that the court’s decision was inequitable because, “even
though James has much less parent-time than Brandy, the court
elevated Brandy’s desire to send the [C]hildren to daycare over
the [C]hildren spending time with James” and “the court based its
decision at least in part on communication between the parents.”
Once again, we disagree with James.
¶35 Utah Code section 81-9-202 contains “advisory guidelines”
that are “suggested” to govern parent-time arrangements. Utah
Code § 81-9-202(1). One such guideline states,
(a) Parental care is presumed to be better care for the
minor child than surrogate care.
(b) The court shall encourage the parties to
cooperate in allowing the noncustodial parent, if
willing and able to transport the minor child, to
provide the child care.
All the therapy appointments at issue occurred during Brandy’s
parent-time, and James did not include a request to alter this
provision in his petition to modify.
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(c) Child care arrangements existing during the
marriage are preferred as are child care
arrangements with nominal or no charge.
Id. § 81-9-202(13). While this guideline “favors parental care, the
statute’s plain language does not entitle the willing and able
noncustodial parent to provide day care. It merely suggests that
the trial court encourage such an arrangement based on the
presumption that parental care is better.” Wight v. Wight,
2011 UT
App 424, ¶ 22,
268 P.3d 861 (quotation simplified). The court
retains discretion “to determine whether parental day care by the
noncustodial parent is appropriate.” Childs v. Childs,
967 P.2d 942,
946 (Utah Ct. App. 1998); see also Vaughan v. Romander,
2015 UT
App 244, ¶ 25,
360 P.3d 761 (“Because [the mother] is not entitled
to a right of first refusal, it would have been within the trial court’s
discretion to have declined to order any right of first refusal at
all.”).
¶36 Here, the district court explained its decision to deny
James’s request for a daytime right of first refusal as follows:
The Court does not want to create a situation where
the parents might have to communicate regularly
about whether one of them is going to have the
[Children] on the other’s parent-time while the
other works. It would be difficult for Brandy to
arrange daycare if [James] had a right to take the
[Children] while she worked anytime he pleases.
And it would not be healthy for the [C]hildren to
have constant uncertainty about where they would
be before and after school.
The court also rejected James’s suggestion that he be allowed to
declare in advance his intent to care for the Children when Brandy
was working, finding that such an arrangement would be
“unworkable given the poor communication that the parties have
right now, particularly [James’s] poor communication.”
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¶37 We cannot say that the district court exceeded its
considerable discretion in so ruling. While section 81-9-202 favors
parental care, it certainly does not require it. The court
thoughtfully articulated multiple reasons why a daytime right of
first refusal would be inappropriate in this case. Although the
parties’ communication was one such issue, the court was also
troubled with the practical difficulties of opening the door to a
more expansive right of first refusal. Critically, the court was
concerned that allowing James to take the Children anytime
during the day would hamper Brandy’s ability to schedule
daycare and that it would also create an unhealthy environment
for the Children because they would face “constant uncertainty
about where they would be before and after school.” Given all
this, James’s argument fails.
C. Paying for Daycare
¶38 Lastly, James argues that if the decision to send the
Children to daycare is truly a physical custody decision, and it is
Brandy’s decision, the district court abused its discretion by
requiring him to pay half of the daycare costs. But James failed to
preserve this claim for our review, and he does not assert that any
exception to our preservation rule allows us to reach the merits of
his argument.
¶39 In the decree, the district court ordered that “each parent
shall equally share the reasonable work-related childcare
expenses for the minor children.” James did not ask the court to
modify this provision in his petition to modify. As discussed
above, the main modifications sought by James were an increase
in parent-time and an expanded right of first refusal. Because
these requests do not encompass a request to modify the
provision controlling the division of childcare expenses set forth
in the decree, the district court did not have an opportunity to rule
on this issue, and therefore James cannot now ask us to modify
20230808-CA 17 2025 UT App 136
Duffin v. Duffin
that provision on appeal. See Ahhmigo, LLC v. Synergy Co. of Utah,
2022 UT 4, ¶ 16,
506 P.3d 536.
CONCLUSION
¶40 The district court properly denied James’s petition to
modify parent-time and the right of first refusal, as well as his
request that the court find Brandy in contempt. The court
correctly applied the legal standards for evaluating parent-time,
and it did not err in determining that the decision to send the
Children to daycare in this case was a physical custody decision. 7
¶41 Affirmed.
7. Brandy also requests an award of attorney fees incurred on
appeal. “Ordinarily, when fees in a divorce have been awarded
below to the party who then prevails on appeal, fees will also be
awarded to that party on appeal.” Crouse v. Crouse, 817 P.2d 836,
840 (Utah Ct. App. 1991) (quotation simplified). But because the
district court declined to award Brandy attorney fees below, we
deny her request.
20230808-CA 18
2025 UT App 136