Risher v. Emerson, 2017 UT App 216, A.K.A., A Finding, Give me at Least One Finding, Please

If there’s a bright northern star when it comes to Utah divorce and child custody trials, it’s this: the judge needs to explain the reasons for his or her decision.

Makes sense, right?

If the judge doesn’t explaining the reasoning for a decision, it’s impossible for anyone to know why the decision was reached, and it’s impossible for a court of appeals to know if they should reverse the decision because the judge got it wrong.

Simple, straightforward stuff.

But, apparently not.

Risher v. Emerson: Facts

Risher v. Emerson is a short Utah Court of Appeals case, only five pages. Here are the basic facts:

  1. Michael Risher and Amy Emerson were never married but had a child together.
  2. Risher filed a parentage petition to establish his rights as dad.
  3. Risher and Emerson agreed on most things, but could not agree on physical and legal custody, so they had a one-day trial.
  4. The judge sided with mom, Emerson, and gave her primary physical custody and final say when it came to legal custody.
  5. Judge asked Emerson’s attorney to prepare Findings of Fact and Conclusions of Law and on Order on Parentage.
  6. The Findings of Fact and Conclusions of Law the judge signed contained no Findings of Fact.

What the Utah Court of Appeals Decided

The Utah Court of Appeals dispatched with Risher v. Emerson in pretty short order.

While dad’s attorneys did what they should have done, i.e., argue every way they thought the judge got it wrong at trial, the Appeals Court’s decision really came down to this one thing: the judge provided absolutely no basis (i.e., no Findings of Fact) for his decision.

The Court of Appeals does not state whether mom’s attorneys, when writing the Findings of Fact and Conclusions of Law, actually wrote any. They might have and the judge simply removed them all.

That’s not normally how it goes, though.

If mom’s attorney didn’t bother to write one Finding, that was a major mistake. (Again, we don’t know if that was the case or not.)

In any case, the judge decided not to take the time to write anything to justify his decision. Not one single thing.

Because of this, the Court of Appeals cannot determine if the decision was correct.

Ultimately, the Court of Appeals sent the case back to the judge for some Findings, any Findings.

(Note: the judge on the case has retired or is retiring very soon, so when this case goes back down for Findings, it may well be overseen by an entirely new judge. That judge may ask for a new trial and come to an entirely new decision on the case. We’ll see how it goes.)

Here’s the Case if You Want To Read It



Appellee. Opinion No. 20160389-CA Filed November 24, 2017 Third District Court, Tooele Department The Honorable Robert W. Adkins No. 154300059

Eric M. Stott and T. Jake Hinkins, Attorneys for Appellant Russell W. Hartvigsen and Edwin S. Jang, Attorneys for Appellee


¶1 Michael W. Risher III and Amy M. Emerson are the natural parents of Child. To legally establish his rights as the father of Child, Risher filed a petition for parentage. That petition was litigated before the trial court. The court reached a number of conclusions at trial and subsequently entered an order of parentage, which included determinations as to parent time, child support, surrogate care, decisional authority, and attorney fees. Because the trial court made virtually no factual findings whatsoever and provided no reasoning for its conclusions, we reverse. Risher v. Emerson 20160389-CA 2 2017 UT App 216

¶2 Child was born in December 2013. Never married to each other, Risher and Emerson informally set up a schedule for visitation, arranged child support, and addressed a number of other issues. Nevertheless, contentions arose and in February 2015, Risher filed a petition for parentage. Litigation followed, and the parties were ultimately able to reach a stipulation on many issues. Custody and visitation issues remained unresolved and a one-day trial was held in March 2016. At the conclusion of the trial, the court indicated what it intended to order and asked Emerson’s counsel to submit proposed findings of fact and conclusions of law, along with a proposed decree. Upon entry of the findings, conclusions, and order of parentage, this appeal followed.

¶3 Determinations of custody and visitation are typically reviewed under an abuse of discretion standard. Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 3, 241 P.3d 365. We “will affirm the trial court’s custody award so long as the trial court’s discretion is exercised within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions.” Id. (citation and internal quotation marks omitted).

¶4 “Adequate findings of fact enable meaningful appellate review because an appellate court can understand the trial court’s reasoning and assess its compliance with governing law.” Keyes v. Keyes, 2015 UT App 114, ¶ 29, 351 P.3d 90 (citation and internal quotation marks omitted). “Findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which” the trial court reached its conclusion on each factual issue. See Taft v. Taft, 2016 UT App 135, ¶ 14, 379 P.3d 890 (citation and internal quotation marks omitted).1

  1. Myriad cases from this court have required sufficient factual findings for effective appellate review. See, e.g., Oldroyd v. Oldroyd, 2017 UT App 45, ¶¶ 8, 11, 397 P.3d 645; Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378; Rayner v. Rayner, 2013 UT App 269, ¶ 4, 316 P.3d 455; Hall v. Hall, 858 P.2d 1018, 1021 (Utah Ct. App. 1993); Sukin v. Sukin, 842 P.2d 922, 923–24 (Utah Ct. App. 1992); Allred v. Allred, 797 P.2d 1108, 1111 (Utah Ct. App. 1990); Stevens v. Stevens, 754 P.2d 952, 958 (Utah Ct. App. 1988). While this court appreciates that findings of fact and conclusions of law are often prepared by counsel, this does not dispense with a trial court’s obligation to ensure that sufficient facts support a conclusion. See Boyer Co. v. Lignell, 567 P.2d 1112, 1113 (Utah 1977) (recommending that trial judges not “mechanically adopt” findings prepared by a prevailing party). Once signed, findings, conclusions, and orders prepared by counsel become the statements of the court.

¶5 On appeal, Risher challenges the trial court’s decision to award sole physical custody to Emerson. Specifically, Risher argues that the custody award was not in Child’s best interests. Risher further challenges the trial court’s determination that Emerson should be given final say on matters upon which the parties cannot agree. Further, Risher notes that the trial court ordered a visitation schedule that constituted a reduction in parent time compared to the visitation schedule that the parties followed under pretrial temporary orders. Risher also challenges the trial court’s determination that only twelve times per year, upon seven-days’ notice, could Risher exercise a right of first refusal and provide care for Child when Emerson was working. Risher also raises additional issues. As to all issues, Risher maintains that the trial court made no findings and provided no reasoning for its conclusions.

¶6 Our review of the findings of fact, conclusions of law, and the order of parentage shows this assertion to be correct. While it is true that the trial court signed a document captioned “Findings of Fact and Conclusions of Law,” that document contains no findings whatsoever. The document also fails to contain any reasoning for the court’s conclusions.

¶7 In Allen v. Allen, 2014 UT App 27, 319 P.3d 770, this court explained, Child custody determinations are “highly personal and individual, and do not lend themselves to the means of generalization employed in other areas of the law.” Roberts v. Roberts, 835 P.2d 193, 196 (Utah Ct. App. 1992). As a result, “[u]nlike support and alimony determinations, . . . there is no checklist of custody factors,” id., that “can govern custody determinations in all cases,” Smith v. Smith, 726 P.2d 423, 426 (Utah 1986). But “the factors relied on by the trial judge in awarding custody must be articulable and articulated in the judge’s written findings and conclusions.” Id. Utah Code sections 30-3-10 and 30-3-10.2 list a number of factors courts consider when making a child custody award, including “which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent,” Utah Code Ann. § 30-3- 10(1)(a)(ii) (LexisNexis 2013), “the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between parent and child,” id. § 30-3-10(1)(a)(iii), and “any other factors the court finds relevant,” id. § 30-3-10.2(2)(j). Allen, 2014 UT App 27, ¶ 8 (alteration and omission in original) (footnote omitted).

¶8 It is impossible, given the record, to determine the basis upon which the trial court ruled or whether the trial court considered any of the factors governing an award of custody. No facts or conclusions are articulated. We are likewise unable to conclude whether the trial court’s determinations as to visitation were made within the trial court’s discretion because the trial court failed to make factual findings or provide any reasoning on this issue as well.2 Under such circumstances, we have no choice but to reverse the order and remand this matter to the trial court for the entry of adequate findings and analysis. See Taft, 2016 UT App 135, ¶¶ 29–30.

  1. We have reviewed the other issues of claimed error and conclude that they are so intertwined with the custody determination that any review of those issues should await the findings and conclusions that will be forthcoming on remand.

¶9 Reversed and remanded.

Published On: November 27th, 2017Categories: Child CustodyComments Off on Risher v. Emerson, 2017 UT App 216, A.K.A., A Finding, Give me at Least One Finding, Please
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About the Author: Marco Brown
Marco C. Brown was named Utah’s Outstanding Family Law Lawyer of the Year in 2015. He graduated with distinction from the University of Nebraska College of Law in 2007 and is currently the managing partner of Brown Family Law, LLC.
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