Barrani v. Barrani

2014 UT App 204, 334 P.3d 994, 768 Utah Adv. Rep. 32, 2014 Utah App. LEXIS 209, 2014 WL 4258329
CourtCourt of Appeals of Utah
DecidedAugust 28, 2014
Docket20120212-CA
StatusPublished
Cited by30 cases

This text of 2014 UT App 204 (Barrani v. Barrani) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrani v. Barrani, 2014 UT App 204, 334 P.3d 994, 768 Utah Adv. Rep. 32, 2014 Utah App. LEXIS 209, 2014 WL 4258329 (Utah Ct. App. 2014).

Opinion

*996 Memorandum Decision

ROTH, Judge:

T1 Kadri O. Barrani (Husband) appeals from the trial court's decisions following a bench trial on child custody, child support, and alimony. We affirm the child eustody and child support orders. We remand, however, for the court to reconsider the amount of monthly alimony Husband must pay to Danielle Barrani (Wife).

I. Custody

12 Husband first challenges the trial court's decision to award primary physical custody of the parties' children to Wife in the face of the joint custody recommendation by Husband's expert witness. Husband and Wife have two minor children who each have special needs and require extensive attention and care. Although both parents are capable of caring for the children and the children are strongly bonded with each parent. Husband and Wife are "extremely challeng{ed]" by co-parenting due to the demands of the children's needs and Husband's and Wife's differing perspectives on how to manage their care. At trial, Husband proposed a custody arrangement in which he and Wife would equally share physical custody. According to Husband, this arrangement would allow each parent an equal break from parenting so that the parent would then be able to provide the children with the best care when they were in his or her charge. Under Husband's proposed schedule, one parent would have the children Mondays and Tuesdays, the other would have them on Wednesdays and Thursdays, and the parents would rotate the long weekends (the 2-2-8 schedule). The trial court rejected the 2-2-8 schedule, finding that such an arrangement was "too disruptive" given the needs of the children. The court also found that Husband "has not demonstrated any feasible way in which he could take on additional visitation or custody involving joint custody and still maintain his current employment without adversely affecting that employment." Accordingly, the court determined that the 2-2-3 schedule was not in the children's best interests. Instead, it retained the custody arrangement that the parties had agreed to during their two-year separation (the existing schedule), which gave Wife primary physical custody of the children and allowed Husband overnight parent-time each Wednesday and every other weekend.

13 On appeal, Husband contends that the record does not support the trial court's express finding that the 2-2-3 schedule was not in the children's best interests or the implicit corollary finding that the existing schedule was. Husband identifies what he perceives to be two errors in this decision: first, that the court inappropriately disregarded the recommendation of the expert custody evaluator who endorsed the 2-2-3 schedule that Husband had proposed and, second, that there was no basis for the court's finding that Husband could not provide additional care for the children and maintain his employment. "The trial court's decision regarding custody will not be upset absent a showing of an abuse of discretion or manifest injustice." Woodward v. LaFranca, 2018 UT App 147, ¶ 6, 805 P.3d 181 (citation and internal quotation marks omitted). "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Utah R. Civ. P. 52(a).

A. The Custody Evaluator's Recommendation

14 "[Clourts are not bound to accept the testimony of an expert and [are] free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case." State v. Maestas, 2012 UT ¶46, 1 200, 299 P.3d 892 (second alteration in original) (citation and internal quotation marks omitted); accord In re G.Y., 962 P.2d 78, 83 (Utah Ct.App.1998) ("[A] trial court is free to accept or reject an expert's opinion and may accord that opinion whatever weight it deems proper."); of Lyon v. Bryan, 2011 UT App 256, ¶10, 262 P.3d 1199 ("A jury is not required to believe an expert witness even when that expert's opinion is unchallenged by the opinion of an opposing expert."). Nevertheless, " '[allthough the trial court [is] not bound to *997 accept' an expert's recommendation, the court is expected to articulate 'some reason for rejecting the recommendation.'" Woodward, 2018 UT App 147, 17, 305 P.3d 181 (second alteration in original) (quoting Tuckey v. Tuckey, 649 P.2d 88, 91 (Utah 1982)). The trial court did so here.

T5 The trial court stated that it would not impose the 2-2-3 schedule because it was "too disruptive" for the children. This decision is supported by Wife's testimony. . Wife testified that she believed the 2-2-3 schedule would be disruptive in terms of attending to the children's needs and maintaining their extracurricular activities. She explained that the parties' daughter frequently gets sick for extended periods and that when the daughter is sick, she cannot be moved as often as the 2-2-3 schedule would require. Furthermore, Wife was concerned that moving between Husband's and Wife's homes so frequently would negatively affect the behavior of the children, especially their daughter, whose behavioral health depends on routine. Wife opined that the existing schedule was working well and expressed concern that a new schedule would increase the daughter's behavioral issues. Wife was also concerned that the 2-2-8 schedule would increase the opportunities for conflict between herself and Husband. Wife offered as an example that the parties cannot agree about which extracurricular activities the children should participate in and that the 2-2-8 schedule would require the children either to give up their current activities or to reschedule them for the days the children were in her care.

T6 Thus, in reaching its decision that the existing schedule best met the children's needs, the trial court apparently gave more weight to Wife's testimony than to the custody evaluator's opinion. Because determinations regarding the weight to be given to the testimony of witnesses, including expert witnesses, are within the province of the finder of fact, we will not second guess a court's decisions about evidentiary weight and eredi-bility if there is a reasonable basis in the record to support them. Id. ("Thus, we may reverse a trial court's credibility determination [only] if its findings in support of that determination are clearly erroneous, that is, if they are against the clear weight of the evidence...." (citation and internal quotation marks omitted)). In this case, the trial court explained why it was rejecting the expert's recommendation, and that explanation has a basis in the record. Therefore, we decline to disturb either the trial court's determination that the 2-2-3 schedule was too disruptive or its decision to continue the existing schedule, even though that schedule deviated from the expert's recommendation.

B. Husband's Employment

97 Husband also challenges the court's finding that the 2-2-8 schedule was not feasible because Husband cannot provide additional care for the children and maintain his employment.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 UT App 204, 334 P.3d 994, 768 Utah Adv. Rep. 32, 2014 Utah App. LEXIS 209, 2014 WL 4258329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrani-v-barrani-utahctapp-2014.