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Blocker v. Blocker

Court of Appeals of Utah

January 12, 2017

Kirsteen D. Blocker, Appellee,
v.
Michael P. Blocker, Appellant.

         Fourth District Court, Provo Department The Honorable James R. Taylor No. 024402553

          Michael P. Blocker, Appellant Pro Se.

         Grant W.P. Morrison, Attorney for Appellee.

          Judge Kate A. Toomey authored this Memorandum Decision, in which Judges Michele M. Christiansen and David N. Mortensen concurred.

          MEMORANDUM DECISION

          TOOMEY, Judge.

         ¶1 Michael P. Blocker (Father) appeals the district court's order granting Kirsteen D. Blocker (Mother) unsupervised parent time with their minor son. We remand to the district court to enter findings of fact.

         BACKGROUND

         ¶2 Father and Mother have one son (Child), who was not yet four months old when these proceedings began. Pursuant to their stipulation at the time the divorce decree was entered in 2004, the district court awarded the parties joint legal custody and shared parent time, with Child's primary care and residence being with Mother.

         ¶3 Eventually, Father petitioned the district court for a custody modification. The matter went to trial in August 2009, and the court granted Father sole legal and physical custody of Child (the Custody Award).[1] The court noted that numerous professionals had been involved in the case, and that, notwithstanding their efforts, Mother "ha[d] a history of not working with, not paying, or not establishing appropriate professional relationships" with them. It expressed its "concern[] about this history and the impact on the parties' minor child." Mother had "declined" to coparent and "interfered" with Child's relationship with Father. The court found that "no joint physical or legal custody of [Child] [was] possible" and that it was in Child's best interest to award sole custody to Father.

         ¶4 Child's therapist and the court-appointed custody evaluator recommended that Mother's parent time be supervised until Mother "has changed her mind set with regard to her own parenting abilities and [Father's] relationship with the child, " but the court was concerned that this would not be practical for financial reasons. It therefore decided to permit Mother unsupervised parent time, provided that she retain a Special Master and verify her participation in individual therapy and joint therapy with Child. The court "recognize[d] that awarding [Mother] statutory parent-time is an experiment as she ha[d] been unable to cooperate with at least twelve (12) past professionals, " but found that it was in Child's "best interest to give her one more chance." Thus, until she verified her compliance with the court's terms, Mother's parent time was to be supervised.[2]

         ¶5 The next relevant development in litigation came in late 2013 when Mother filed a Motion to Clarify or Modify the Custody Order. At a scheduling conference, the district court instructed Mother to "submit an order to show cause." Mother then filed an order to show cause requesting that the court order Father to "afford [Mother] minimum statutory visitation." Curiously, however, at the order to show cause hearing in March 2014, the court noted that "there is no petition to modify. This is an action to enforce the existing order. A motion to clarify [the] existing order is not appropriate." In any event, at an evidentiary hearing in April 2014, the court sua sponte deemed Mother's order to show cause a petition to modify. At the conclusion of that hearing, the court ordered "an evaluation of [Mother] and her circumstances in relation to visitation." The court set what it referred to as a "status conference" for August 2014, but also made clear that it would be "a hearing at which time the results of the home study shall be reviewed, the need for supervised exchanges or supervised visitation examined, and, a final custody order entered." In the meantime, all visits were to be supervised.

         ¶6 Mother, represented by counsel, appeared for the status conference in August 2014 and brought with her the home study report and the person who prepared it. Father, representing himself, objected that because he believed the proceeding was a status conference and not an evidentiary hearing, he did not have the opportunity to call witnesses on his own behalf and was not prepared to cross-examine Mother's witness. The court continued the hearing to provide Father an opportunity to prepare for cross-examination and to arrange for his own witnesses. In the interim, based on the home study report and "the status of the case, " the court granted Mother unsupervised parent time.

         ¶7 The next hearing was not conducted until nearly one year later in June 2015.[3] Aside from the written home study report, the court received no other evidence or testimony.[4] The court expressed disappointment in the report, calling it "[not] particularly helpful" and its conclusions "very limited." It also called the case a "procedural mess" and proceeded in an "informal way" to "get to the heart of this matter." It decided to make the August 2014 temporary order, which granted Mother unsupervised parent time, permanent. Father objected, citing Hogge v. Hogge, 649 P.2d 51 (Utah 1982), and asked the court how it could modify a custody award without first finding there had been a material change in circumstances. The court told Father it had "wide discretion in these matters" and that there was "satisfactory evidence in [the] file to demonstrate that [this ...


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