author: HAGEN, Judge:

text:
    STATE of Utah, Appellee, v. Robert Dennis MALLOY, Appellant.
    No. 20170538-CA
    Court of Appeals of Utah.
    Filed April 11, 2019
    Andrea J. Garland and Elise C. Lockwood, Attorneys for Appellant
    Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellee
    Judge Diana Hagen authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.
    Opinion
   HAGEN, Judge:

¶1 Robert Dennis Malloy entered a conditional guilty plea under rule 11(j) of the Utah Rules of Criminal Procedure to one count of driving under the influence in exchange for the State dismissing one count each of possession of drug paraphernalia and possession or use of a controlled substance. On appeal, Malloy contends the district court erred in denying his motion to suppress the paraphernalia and controlled-substance evidence that he alleges was discovered in violation of his Fourth Amendment rights. Because the officer had the authority to open the door to Malloy's vehicle to investigate whether Malloy was an impaired driver, we affirm.

BACKGROUND

¶2 After receiving a report from an eyewitness, police dispatch notified an officer of "a DUI accident" in a fast food parking lot. The caller who reported the accident told dispatch that the driver had fallen asleep and hit a light pole. According to the caller, the driver then awoke, backed away from the pole, and fell asleep again. The officer arrived at the scene and parked behind the vehicle described in the report. Still on the scene, the eyewitness provided his identifying information and confirmed his report. The eyewitness also told the officer that he thought the driver was unconscious and might be dead.

¶3 The officer approached the vehicle and peered into the window "just long enough" to see that the driver was "kind of slumped, slouched forward" and appeared to be unconscious. Without knocking or announcing his presence, the officer opened the door to check on the welfare of the driver, Malloy. According to the officer, upon opening the door, Malloy awoke and the officer observed a drug pipe on the floor between Malloy's feet.

¶4 After waiving his Miranda rights, Malloy explained to the officer that he had taken some narcotics for foot pain. Malloy underwent a series of field sobriety tests, which showed "[i]ndications of drug impairment." Malloy was arrested for driving under the influence and a search incident to arrest revealed that Malloy was in possession of heroin. Malloy was charged with driving under the influence, possession of drug paraphernalia, and possession of a controlled substance.

¶5 Malloy moved to suppress the possession charges, arguing that the officer searched his vehicle without probable cause in violation of his Fourth Amendment rights. He argued that the emergency aid doctrine was the "appropriate analysis to apply" but that "the intrusion [was] not justified under the facts of this case." He further argued that the officer should have knocked on the door or window of the vehicle, because doing so would have provided a "simple, non-intrusive" means of attempting to determine whether a medical emergency existed, and if Malloy "had not stirred or responded, those facts would have supported [the officer's] search of the vehicle." In its opposition, the State argued that the emergency aid exception to the Fourth Amendment allowed the officer to open the door to Malloy's vehicle and investigate whether he required medical attention.

¶6 Following an evidentiary hearing, the district court denied Malloy's motion to suppress. The court concluded that the evidence-including "the nature of the information that was provided to the officer in connection with being dispatched on the call, coupled with the information that was provided to the officer on scene," and the officer's own observation of a driver who appeared unresponsive-"warranted ... a minimal intrusion of simply opening the door" to see if Malloy required emergency aid.

¶7 A few months later, Malloy entered a conditional guilty plea under rule 11(j) of the Utah Rules of Criminal Procedure in which he agreed to plead guilty to driving under the influence and reserved the right to appeal the denial of his motion to suppress. In exchange, the State offered to dismiss the possession charges, which the court accepted. The court suspended Malloy's sentence and placed him on supervised probation.

¶8 Malloy now appeals the denial of his motion to suppress.

ISSUE AND STANDARDS OF REVIEW

¶9 Malloy contends the district court erred in denying his motion to suppress the evidence discovered during a search of his vehicle based on the emergency aid exception to the Fourth Amendment's warrant requirement. The denial of "a motion to suppress for an alleged Fourth Amendment violation [is] a mixed question of law and fact." State v. Adams , 2017 UT App 205, ¶ 11, 407 P.3d 1027 (quotation simplified). We review the district court's factual findings for clear error and its legal conclusions for correctness, "including its application of law to the facts of the case." Id. (quotation simplified). Although we are "limited to the findings of fact made by the trial court," we may affirm "on any legal ground or theory apparent on the record," as long as we do not "reweigh the evidence in light of the new legal theory or alternate ground." State v. McLeod , 2018 UT App 51, ¶ 21, 420 P.3d 122 (quotation simplified).

ANALYSIS

¶10 Malloy contends the district court erroneously denied his motion to suppress in violation of his Fourth Amendment rights. The Fourth Amendment to the United States Constitution guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "[T]he 'touchstone of the Fourth Amendment is reasonableness,' which 'is measured in objective terms by examining the totality of the circumstances.' " State v. Baker , 2010 UT 18, ¶ 10, 229 P.3d 650 (quoting Ohio v. Robinette , 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) ). "Reasonableness under the Fourth Amendment depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Id. (quotation simplified).

¶11 The parties have presented this case as involving two separate Fourth Amendment intrusions-a seizure followed by a search. As an initial matter, the parties agree that the officer initiated a seizure by parking behind Malloy thereby blocking his ability to leave the scene. In order to justify such an investigative detention, known as a Terry stop, the officer must have reasonable articulable suspicion of criminal activity. See Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Malloy does not contest the lawfulness of his seizure. Although the district court had no need to rule on this undisputed issue, the facts found by the district court unquestionably demonstrate that the Terry stop was justified to investigate the officer's reasonable suspicion that Malloy was operating or in actual physical control of a vehicle while under the influence or otherwise impaired. State v. James , 2000 UT 80, ¶ 11, 13 P.3d 576 (determining that an officer had "more than adequate reasonable suspicion" to detain a driver and investigate based "on a citizen's detailed report of a reckless driving pattern that was consistent with driving under the influence").

¶12 The disputed issue in this case is whether, having lawfully detained Malloy on suspicion of impaired driving, the officer violated the Fourth Amendment by opening the car door. Malloy characterizes this action as a warrantless search. The State argued below, and the district court agreed, that opening the car door was justified under the emergency aid exception to the warrant requirement. However, we "may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record," even if "such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court." Bailey v. Bayles , 2002 UT 58, ¶ 10, 52 P.3d 1158 (quotation simplified). Based on the record before us, we conclude that it is unnecessary to reach the issue of whether the emergency aid doctrine applies, because opening the car door to investigate Malloy's condition was within the scope of a lawful Terry stop. It was not a separate search for which a warrant-or an exception to the warrant requirement-would be necessary.

¶13 A Terry stop based on reasonable articulable suspicion of criminal wrongdoing must be both "(1) lawful at its inception and (2) otherwise executed in a reasonable manner." State v. Binks , 2018 UT 11, ¶ 14, 416 P.3d 1168 (quotation simplified). Once a lawful stop is initiated, "the detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." State v. Morris , 2011 UT 40, ¶ 18, 259 P.3d 116 (quotation simplified). "Both the length and the scope of the detention must be strictly tied to and justified by the circumstances which rendered its initiation permissible." Id. (quotation simplified).

¶14 During the course of a lawful Terry stop involving a motor vehicle, "police officers may order the driver out of the vehicle to promote safety, even in the absence of reasonable suspicion, without violating the Fourth Amendment's proscription against unreasonable searches and seizures." Statev. Warren , 2003 UT 36, ¶ 24, 78 P.3d 590 (citing Pennsylvania v. Mimms , 434 U.S. 106, 109-11, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam)). Asking a lawfully seized person to exit the vehicle during a traffic stop will result in an "additional intrusion that can only be described as de minimis " because "[t]he driver is being asked to expose to view very little more of his person than is already exposed." Mimms , 434 U.S. at 111, 98 S.Ct. 330.

¶15 In State v. James , 2000 UT 80, 13 P.3d 576, the Utah Supreme Court extended the holding in Mimms to allow an officer to open a car door to initiate a face-to-face encounter with the detained driver. The facts of James are strikingly similar to those in the case at hand. In James , an eyewitness reported to an officer that he had witnessed a reckless driver who was driving "all over the road and had hit or almost struck three other vehicles." Id. ¶ 2 (quotation simplified). The eyewitness provided the vehicle's "license number, approximate location, and direction of travel." Id. The officer confirmed the information with dispatch, obtained the driver's address, and drove to that address where he observed a vehicle matching the description given by the eyewitness and dispatch. Id. The officer pulled up behind the vehicle and approached the driver's side door. Id. When he looked through the window, the officer saw the driver and a passenger. Id. ¶ 3. The officer opened the door and asked the driver to step out of the vehicle. Id. Once the door was open, the officer observed an open can of beer in the car. Id. After the driver failed a field sobriety test, the State charged the driver with driving under the influence and having an open container of alcohol in his vehicle. Id. The driver "moved to suppress evidence of his intoxicated condition," arguing, among other things, that the officer did not have probable cause to open the vehicle's door. Id. ¶ 5.

¶16 The district court denied the motion to suppress, and the Utah Supreme Court affirmed. Id. ¶ 13. The officer had a "detailed report of a reckless driving pattern that was consistent with driving under the influence" and therefore "had the right and authority to temporarily detain [the driver]" and order him to step out of the vehicle, in order to investigate the report of reckless driving. Id. ¶ 11. Our supreme court explained that there is a difference between "opening of doors or searches of vehicles to search for physical evidence ... [and] lawful detention and questioning of individuals." Id. ¶ 13. Because the officer "was investigating [the driver] himself" and not the vehicle, "the opening of the door was an incidental factor in the investigation of [the driver's] impaired physical condition, and not an independent search of a vehicle." Id. Thus, "[c]ausing the door to be opened in some manner was a reasonable and practical means for obtaining compliance with [the officer's] authority to lawfully require [the driver] to step from the vehicle." Id. "To draw distinctions as to who actually opened the door and the nature of any conversation or notification occurring beforehand would elevate form over substance." Id. The officer's "investigation into the reasons for [the driver's] reckless driving" therefore did not amount to a violation of the driver's Fourth Amendment rights. Id.

¶17 In this case, the officer testified at the hearing on the motion to suppress that he had responded to a report of "a DUI traffic accident" at a fast food restaurant. He had been given a report from dispatch that the driver had nodded off, hit a light pole, awakened, backed away from the light pole, and nodded off again. The officer also confirmed the report with the eyewitness at the scene, where the eyewitness also stated that the driver appeared either unconscious or dead. With this information, the officer approached the vehicle, saw that Malloy was slouched forward and not moving, and opened the door to check on Malloy's condition. Upon opening the door, the officer observed drug paraphernalia and ordered Malloy out of the vehicle. Further investigating Malloy's condition, the officer performed a field sobriety test, which Malloy failed. Just as in James , it is irrelevant "who actually opened the door and the nature of any conversation or notification occurring beforehand." See id. Because the officer "was investigating [Malloy] himself, and was not searching [Malloy's] vehicle," opening the door "was an incidental factor in the investigation of [Malloy's] impaired physical condition, and not an independent search of a vehicle." See id.

¶18 We agree with the State's argument on appeal that James controls the outcome of this case. As in James , there is no dispute that the officer had reasonable suspicion to detain Malloy and investigate his impaired condition. Opening the door of Malloy's car was a reasonable form of investigation into Malloy's condition and within the scope of the lawful detention. See id. Because the officer was investigating Malloy's condition and not conducting an independent search, he did not violate Malloy's Fourth Amendment rights, and the district court properly denied the motion to suppress.

CONCLUSION

¶19 We conclude that the officer had reasonable suspicion to seize Malloy's vehicle and detain him for further investigation into an eyewitness report that Malloy was driving under the influence. The officer's opening of the vehicle door was incidental to his investigation into Malloy's impaired condition and therefore did not violate Malloy's Fourth Amendment rights. Accordingly, we affirm the district court's denial of Malloy's motion to suppress.

      Miranda v. Arizona , 384 U.S. 436, 471-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (explaining that an individual who is subject to arrest and interrogation "must be clearly informed" that he has the right to remain silent and "the right to consult with a lawyer and to have the lawyer with him during interrogation").

      Below, the State argued that the community caretaking doctrine also applied as an exception to the Fourth Amendment's warrant requirement. The district court explained that it was "not sure" that the community caretaking doctrine was "clearly as applicable, but to the extent it does apply, ... the facts here are appropriate under that doctrine as well." Although Malloy challenges this decision on appeal, we do not address it, because we affirm the denial of Malloy's motion to suppress based on an alternate ground apparent on this record. See State v. McLeod , 2018 UT App 51, ¶ 21, 420 P.3d 122.

      In the automobile context, officers may conduct a warrantless search of a vehicle if there is probable cause to believe that a readily mobile vehicle contains evidence of a crime. See Pennsylvania v. Labron , 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996). This separate exception to the warrant requirement, known as the automobile exception, is not at issue in this case.


source: Caselaw Access Project

author: APPLEBY, Judge:

license: Public Domain

text:
    In the MATTER OF Landon Kirk JACOBSON
    Charity Stilson, Appellant, v. Landon Kirk Jacobson, Appellee.
    No. 20180018-CA
    Court of Appeals of Utah.
    Filed April 11, 2019
    Joseph C. Rust, Salt Lake City, Attorney for Appellant
    Steve S. Christensen, Salt Lake City, and Clinton R. Brimhall, Attorneys for Appellee
    Judge Kate Appleby authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.
    Opinion
   APPLEBY, Judge:

¶ 1 Charity Stilson appeals the district court's ruling denying her request for costs and expenses incurred while serving as Landon Kirk Jacobson's guardian and conservator. We affirm.

BACKGROUND

¶ 2 In August 2015, Jacobson suffered a severe brain injury in an accident that also claimed the lives of his wife and one of their children. The district court appointed Stilson-Jacobson's sister-as his guardian and conservator. Jacobson's mother-in-law and Stilson were appointed as co-guardians of Jacobson's surviving minor children. In October 2015, the district court signed an order proposed by Jacobson's mother-in-law and Stilson that terminated the co-guardianship and allowed Jacobson to reassume responsibility for his children.

¶ 3 In December 2016, Stilson petitioned the district court to be reappointed as the children's guardian. Jacobson responded by filing a motion for permission to appoint counsel to assist him in opposing Stilson's petition. Stilson filed an objection to Jacobson's request for counsel, arguing that, as Jacobson's guardian and conservator, she was "authorized to represent him in all legal matters," and he was therefore "not in a legal position to employ a lawyer" without her consent.

¶ 4 The district court held a hearing to address Stilson's petition. At the hearing, the court first explained that "to be represented by counsel in a court proceeding [is] fundamental" and denying Jacobson that right would be "a deprivation of due process." It then expressed "concerns" that, fourteen months prior to her petition, Stilson represented to the court that Jacobson was competent to care for his children, "and now she wants to come forward and say he is not competent ... and can't be heard on that issue." Accordingly, the court explained that it would first determine whether Stilson "should be released" as Jacobson's guardian and conservator before considering her petition to be reappointed as the children's guardian.

¶ 5 Stilson requested a "complete trial" on whether her guardianship and conservatorship over Jacobson should be terminated. In February 2017, Jacobson filed a counter-petition, asking the court to remove Stilson as his guardian and conservator. He asserted that his "incapacity [had] terminated" as he had demonstrated by "regaining his driver license, returning to his work on the farm, adequately caring for himself day to day, and caring for his ... children for the past 14 months." He also said that "good cause exists" to remove Stilson as guardian and conservator because she "is not qualified to act as conservator" and "[f]riction within the family has arisen due to [her] appointment."

¶ 6 One week later, Stilson filed a response to Jacobson's petition to remove her as his guardian and conservator. She identified three doctors who had "treated Jacobson since his accident" and asserted that each of them had "determined that Jacobson does not have the capacity to act for himself in significant and meaningful matters, either as to his own person or as to his assets."

¶ 7 In May 2017, Stilson submitted to the district court her resignation as Jacobson's guardian and conservator. The resignation stated that "Stilson's efforts have unfortunately been made more difficult than they needed to be by some of Jacobson's family members" and "[t]his additional burden has made serving as guardian and conservator now virtually impossible." But Stilson said she "would strongly argue against" Jacobson's petition to terminate his guardianship and conservatorship and requested that the court appoint a replacement. Around the time Stilson submitted her resignation, her attorney "represented to the [court] that she desired to proceed as an interested person" in challenging Jacobson's petition.

¶ 8 One week later, the court held a conference with Stilson, Jacobson, and their attorneys. "[I]n light of [Stilson's] filed resignation," the court said it needed to conduct "an evidentiary hearing to determine whether [Jacobson] still needs a guardian and/or a conservator." The court scheduled a two-day hearing for that purpose.

¶ 9 At the hearing, various experts testified, including a neuropsychologist (Dr. E). Dr. E first evaluated Jacobson four months after the accident. In January 2017, Stilson contacted him and "expressed concerns about [Jacobson's] daily functioning, cognitive functioning, and decision-making" and requested that he "conduct a comprehensive psychological evaluation." Dr. E said that Stilson was "very emotional about the problems and concerns she reported" and his impression was that her "concerns seemed to be over the top."

¶ 10 Over about six weeks, Dr. E gave Jacobson "psychological counseling and cognitive therapy" and tested his "executive functioning" and "memory." He also spoke with Jacobson about his ability to manage money. Dr. E concluded that Jacobson did not need a guardian or conservator and could "manage and provide for his physical health, safety, and self-care." After forming his opinion, however, Dr. E "recommended [to Stilson] that [Jacobson] undergo a neurological assessment conducted by an independent evaluator."

¶ 11 A clinical and forensic psychologist (Dr. D) testified next. Stilson's attorney asked Dr. D to evaluate Jacobson after Dr. E recommended an independent neurological assessment. In forming his opinion, Dr. D relied on one interview with Jacobson-which Stilson attended-as well as a "collateral interview" with Stilson. He said he believed Jacobson needed a guardian and conservator because he "lacked the capacity to manage his finances and those of his business and children." Dr. D had a history of working with Stilson's attorney's law firm. He also worked with Stilson in a personal injury case, in which he diagnosed her with "somatic symptom disorder" and "separation anxiety disorder." Dr. D "described [Stilson] as being overly concerned about health issues."

¶ 12 Three more experts testified: a neuropsychologist (Dr. S), a physical medicine and rehabilitation doctor (Dr. L), and a psychologist (Dr. G). Dr. S recommended that Jacobson "receive continued assistance with financial and other decisions," and Dr. L "opined that [Jacobson] still needs someone to manage his financial affairs." But Dr. S "relied almost completely on the information provided to him by [Stilson]," and when Dr. L and Dr. D "were asked about [Jacobson's] abilities absent [Stilson's] assertions, both doctors admitted that they would consider [Jacobson] capable of managing his own affairs without the need for a guardian or conservator." Dr. G prepared to testify by interviewing Jacobson and reviewing his medical and surgical records as well as the testing Jacobson had completed. He offered his opinion that Jacobson did not need a guardian or conservator and "had no cognitive problems that would prevent him from safeguarding his assets."

¶ 13 After the hearing, the court ruled that Stilson had "failed to show by even a preponderance of the evidence" that Jacobson was unable to adequately and appropriately care for himself and his children. Specifically, although "her concerns may have been valid immediately after the accident and during the early stages of his recovery," they "were no longer present after her resignation." And Stilson's "continued concerns about [Jacobson] were unwarranted and not based on any facts presented to the Court." The court then issued an order terminating Stilson as guardian and conservator, denying her petition to appoint a replacement, and granting Jacobson's petition to terminate the guardianship and conservatorship.

¶ 14 At the court's request, Stilson submitted a final guardian and conservator accounting. She requested that "costs and expenses she incurred in her role as guardian and conservator ... be approved for payment from [Jacobson's] estate." Those costs and expenses included fees for Dr. D's evaluation of Jacobson as well as expert and attorney fees incurred in litigating whether Jacobson needed a guardian and conservator. Stilson noted that Jacobson had previously agreed to pay her "$1500 per month" for her efforts as guardian and conservator, but her accounting said, "Stilson herewith waives any such fees for herself which have not been paid."

¶ 15 The district court approved in part and denied in part Stilson's request for costs and expenses. The court's ruling first noted that conservators may "prosecute and defend actions" and "employ persons, including attorneys ... to advise or assist in the performance of administrative duties." (Quoting Utah Code sections 75-5-424(4)(x) and 75-5-424(4)(w).) But it clarified that a conservator may use funds of the estate only if the conservator is "acting reasonably in efforts to accomplish the purpose for which the conservator was appointed ." (Quoting Utah Code section 75-5-424(4).) Under that standard, the court approved "reasonable costs and attorney fees ... for work done on [Jacobson's] accident case ... and work done to assist [Stilson] in her duties managing [Jacobson's] estate."

¶ 16 The court then concluded that Stilson was "not entitled to an award of costs and expenses for [Dr. D] in his role as medical examiner." Although the court acknowledged that Dr. E "recommended [Jacobson] undergo an independent neuropsychological evaluation," it determined that retaining Dr. D for that purpose "was wholly unreasonable." Specifically, the court found that Dr. D "is neither an independent evaluator nor even a neuropsychologist."

¶ 17 Next, the court denied Stilson's request for expert and attorney fees incurred in opposing "the removal of [Jacobson's] guardianship and conservatorship." It supported this ruling on two grounds. First, it determined that Stilson did not challenge Jacobson's petition "in her capacity as conservator" but only as an "interested person." The court said that, at the time of Stilson's resignation, her attorney "represented to the court that she desired to proceed as an interested person and challenge [Jacobson's] petition." And it explained that "[a]n interested person may only recover costs and expenses in seeking or defending a guardianship or conservatorship if the court appoints the party or designated individual as guardian or conservator over the protected person." (Citing Utah Code sections 75-5-303(2) and 75-5-414.)

¶ 18 Second, the court determined that, "[e]ven if [Stilson] had some duty as conservator," her opposition to Jacobson's petition was not only "unreasonable and contrary to [Jacobson's] best interests," but it was "conducted in bad faith." Although Stilson's "concerns may have been valid immediately after the accident and during the early stages of [Jacobson's] recovery," the court found that "those concerns were no longer present after her resignation" and it was therefore unreasonable for her to oppose Jacobson's petition. The court said that Stilson "had information from [Dr. E], which was not based on her misrepresentations of Jacobson's abilities, to indicate that [Jacobson] was fully capable of managing his own affairs." And it was "unreasonable for [Stilson] to over-exaggerate [Jacobson's] limitations to his treating physicians, thus causing them to form unreliable opinions as to his capabilities, and then rely on those flawed opinions caused by her own misrepresentations to justify her actions."

¶ 19 The court also found that Dr. D "took [Stilson's] account virtually at her word," despite having diagnosed her with "somatic symptom disorder" and "separation anxiety disorder." The court's ruling explained: "somatic symptom disorder ... is characterized by complaints of physical illness that either go beyond the scope of what would be typical for a person with the same illness or that the person uses to control or manipulate other people" and "separation anxiety disorder ... is a persistent and excessive worry about losing major attachment figures."

¶ 20 After approving or denying Stilson's various requests, the court ordered her to reimburse the estate for money she used to pay costs and attorney fees to which she was not entitled. The court noted that Stilson had not received her agreed upon compensation-$1,500 per month-during her final five months as Jacobson's guardian and conservator. But it refused to use that unpaid amount to offset what she owed the estate because Stilson "waived her claim to receive [that] fee" and "provided no information to the Court regarding any work she actually performed managing [Jacobson's] estate or his business during that time period that would indicate this fee was reasonable."

¶ 21 Stilson appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 22 Stilson appeals the district court's ruling on her request for costs and expenses. First, she argues the district court erred "in denying [her] request for legal and expert fees." Second, she argues the court erred in "refusing to apply the unpaid ... but agreed upon monthly conservatorship fees as an offset against those monies which the court ordered [her] to reimburse."

¶ 23 In cases regarding guardianship and conservatorship of incapacitated adults, "[m]atters of statutory construction are questions of law that are reviewed for correctness." In re Vann , 2005 UT App 513, ¶ 8, 128 P.3d 70 (quotation simplified). "Questions of fact are reviewed under the clearly erroneous standard, with deference given to the [district] court." Id. (quotation simplified). And the district court's "application of the law to the facts is reviewed for abuse of discretion." Id. (quotation simplified).

ANALYSIS

I. Expert and Attorney Fees

¶ 24 Stilson argues that the district court erred in denying her request for attorney and expert fees. Specifically, she asserts the Utah Probate Code requires reimbursement of her costs and expenses for retaining professionals to assist her as Jacobson's guardian and conservator. As explained below, we reject Stilson's arguments.

¶ 25 In Utah, a conservator, "acting reasonably in efforts to accomplish the purpose for which the conservator was appointed, may use the funds of the estate ... [to] prosecute or defend actions, claims, or proceedings ... for the protection of estate assets and of the conservator in the performance of the conservator's duties." Utah Code Ann. § 75-5-424(4)(x) (LexisNexis Supp. 2018) (emphasis added). And a conservator may "employ persons, including attorneys ... or agents ... to advise or assist in the performance of administrative duties." Id. § 75-5-424(4)(w)(i). To ensure that guardians and conservators fulfill their duties to the protected person, however, the Probate Code requires them to provide accountings to be "examined and approved by the court." Id. § 75-5-417(2) (providing the accounting duties of conservators); see also id. § 75-5-312(v)(A)-(E) (providing the accounting duties of guardians). Given these provisions, we agree with Stilson that she was authorized to use estate funds for reasonable efforts to accomplish the purpose for which she was appointed. See id. § 75-5-424(4).

¶ 26 The district court denied Stilson's request for two types of costs and expenses: (1) fees for Dr. D's medical evaluation of Jacobson, and (2) attorney and expert fees that Stilson incurred in opposing Jacobson's petition to terminate the guardianship and conservatorship. We discuss each in turn.

A. Dr. D's Fees

¶ 27 Stilson argues that the district court erred in determining Dr. D's medical examination fees were "unreasonable." We disagree.

¶ 28 "Reasonable" means "[f]air, proper, or moderate under the circumstances." Reasonable , Black's Law Dictionary (9th ed. 2009). Whether a person acted reasonably under a specific set of circumstances generally is a question of fact. See, e.g. , Aurora Credit Servs., Inc. v. Liberty West Dev., Inc. , 970 P.2d 1273, 1279 (Utah 1998) ("[T]he finder of fact must determine whether, given the particular circumstances, a reasonable person would have researched the property's title record."); Andreini v. Hultgren , 860 P.2d 916, 919 (Utah 1993) ("The point at which a person reasonably should know that he or she has suffered a legal injury is a question of fact."); Estate of Keenan v. ColoradoState Bank & Trust , 252 P.3d 539, 546-47 (Colo. App. 2011) (determining that whether a conservator acted reasonably in opposing a protected person's motion to terminate the conservatorship-and is therefore entitled to reimbursement for fees-is a question of fact).

¶ 29 "Questions of fact are reviewed under the clearly erroneous standard, with deference given to the [district] court." In re Vann , 2005 UT App 513, ¶ 8, 128 P.3d 70 (quotation simplified). Under that standard, we will disturb the district court's finding only if it "is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made." Grimm v. DxNA LLC , 2018 UT App 115, ¶ 12, 427 P.3d 571 (quotation simplified); see also Conservatorship of Lefkowitz , 50 Cal.App.4th 1310, 58 Cal.Rptr.2d 299, 302 (1996) (overturning a decision that a conservator acted reasonably and in good faith in unsuccessfully opposing a petition to remove the conservatorship-and was therefore entitled to compensation-when there was "no substantial evidence in the record" to support that decision).

¶ 30 Here, after Dr. E evaluated Jacobson, he recommended that Stilson arrange an independent neuropsychological evaluation.

The court determined that retaining Dr. D to perform this evaluation was unreasonable because he is not a neuropsychologist and, given his previous dealings with Stilson and her attorney, was not an independent evaluator. Stilson does not contest these findings, and we note that the evidence supports them.

¶ 31 Given those facts, we cannot say the court erred in determining that retaining Dr. D to evaluate Jacobson was unreasonable. Indeed, hiring a doctor who does not possess the qualifications necessary to provide a reliable, objective opinion as to a protected person's abilities does not seem "fair and proper under the circumstances." Reasonable , Black's Law Dictionary (9th ed. 2009). Thus, because Stilson was entitled to use estate funds for only reasonable efforts to accomplish the purpose for which she was appointed, see Utah Code Ann. § 75-5-424(4)(x), we affirm the district court's decision to deny Stilson's request for Dr. D's examination fees.

B. Expenses for Challenging Jacobson's Petition

¶ 32 Stilson argues that the district court erred in denying her request for attorney and expert fees incurred in challenging Jacobson's petition to terminate the guardianship and conservatorship. We disagree.

¶ 33 She first asserts it was improper to treat her "as only an interested person," citing Utah Code sections 75-5-307 and 75-5-415. These provisions establish that, before accepting the resignation of a guardian or conservator, courts must hold a hearing to determine whether the guardianship or conservatorship should be terminated and whether the court should appoint a replacement guardian or conservator. See Utah Code Ann. §§ 75-5-307(3), 75-5-415(2) (LexisNexis Supp. 2018). Pending the outcome of such a hearing, the resigning guardian or conservator generally will not be removed. See id.

¶ 34 We take no issue with Stilson's assertions in this regard. But the district court denied her request for expenses because it determined that Stilson was not acting in her capacity as conservator when she continued to seek a replacement guardian and conservator. The court supported this conclusion by finding that, at the time Stilson submitted her resignation, her counsel "represented to the court that she desired to proceed as an interested person." Notably, Stilson does not challenge this finding. Instead, she seems to argue that, as a matter of law, a guardian or conservator cannot participate in a proceeding regarding the protected person in any capacity other than guardian or conservator. We are not persuaded.

¶ 35 The relevant provisions of the Probate Code support a broad interpretation of the term "interested person." For example, Utah Code section 75-5-303 allows "any person interested in the incapacitated person's welfare ... [to] petition for ... appointment of a guardian." Utah Code Ann. § 75-5-303(1). And section 75-5-404 establishes that "any person who is interested in [another's] estate, affairs, or welfare, including his parent, guardian , or custodian, or any person who would be adversely affected by lack of effective management of his property and affairs may petition for the appointment of a conservator or for other appropriate protective order." Id. § 75-5-404(1) (Michie 1993) (emphasis added).

¶ 36 Stilson provides no authority to support her assertion that a guardian or conservator cannot choose to proceed as an interested person in pursuing a petition to appoint a replacement guardian or conservator over the protected person. And considering the broad language in sections 75-5-303 and 75-5-404, we conclude that Stilson was entitled to proceed solely as an interested person-as opposed to as Jacobson's guardian and conservator. See R.P. v. K.S.W. , 2014 UT App 38, ¶ 15, 320 P.3d 1084 (explaining that this court "look[s] to the plain language of the statute" to determine "the legislature's intent and purpose" (quotation simplified)).

¶ 37 Stilson claims the district court "made clear throughout the proceedings that [she] was the guardian/conservator of [Jacobson]." As discussed above, there is no dispute that Stilson was Jacobson's guardian and conservator until the district court issued its order removing her from those positions. And because Stilson does not contest that her attorney told the court she was electing to continue solely as an interested person, we cannot say the court erred in determining she was acting in that capacity.

¶ 38 An interested person who petitions the court to appoint a guardian or conservator is entitled to attorney fees and court costs only if the petition is successful. See Utah Code Ann. §§ 75-5-414, 75-5-303(2)(d) (LexisNexis Supp. 2018). We therefore affirm the district court's decision to deny Stilson's request for expenses incurred in opposing Jacobson's petition to terminate the guardianship and conservatorship on the ground that Stilson was not acting in her capacity as guardian or conservator.

¶ 39 The district court's decision not to award Stilson her attorney fees and costs incurred in challenging Jacobson's petition to terminate the guardianship and conservatorship can be affirmed on an alternative ground: even if Stilson was acting in her capacity as guardian or conservator in mounting that challenge, the district court found that Stilson's efforts were unreasonable, and that finding is not clearly erroneous.

¶ 40 As previously discussed, see supra Part I.A., whether a person acted reasonably under a particular set of circumstances is a question of fact. See, e.g. , Aurora Credit Servs., Inc. v. Liberty West Dev., Inc. , 970 P.2d 1273, 1279 (Utah 1998). We will not disturb the district court's finding unless it "is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made." Grimm v. DxNA LLC , 2018 UT App 115, ¶ 12, 427 P.3d 571 (quotation simplified).

¶ 41 After reviewing the record and the parties' arguments, we conclude the court's finding is not against the clear weight of the evidence. In early 2017, Dr. E told Stilson that Jacobson "had the ability to care for himself and his children and manage his own financial affairs." The district court found Dr. E's testimony "accurate and credible," in part, because he "did not rely on [Stilson's] assertions" in reaching his opinion. On appeal, we grant deference to the district court's assessment of credibility. Henshaw v. Henshaw , 2012 UT App 56, ¶ 11, 271 P.3d 837. The evidence therefore supports the court's finding that Stilson "had information from Dr. E ... to indicate that [Jacobson] was fully capable of managing his own affairs." Yet she continued to litigate Jacobson's incapacity and request a replacement guardian and conservator.

¶ 42 Further, the court found that Stilson "over-exaggerate[d] [Jacobson's] limitations to his treating physicians, thus causing them to form unreliable opinions as to his capabilities." The evidence also supports this finding. Notably, Stilson does not contest that, when Dr. D and Dr. L "were asked about [Jacobson's] abilities absent [Stilson's] assertions, [they] admitted that they would consider [Jacobson] capable of managing his own affairs without the need for a guardian or conservator."

¶ 43 We also note the court's finding-which Stilson does not contest-that Dr. D had previously diagnosed Stilson with "somatic symptom disorder" and "separation anxiety disorder." As the court said in its ruling, "somatic symptom disorder ... is characterized by complaints of physical illness that either go beyond the scope of what would be typical for a person with the same illness or that the person uses to control or manipulate other people," and "separation anxiety disorder ... is a persistent and excessive worry about losing major attachment figures." These findings support the court's determination that Stilson's opposition to Jacobson's petition was motivated by concerns that were "unwarranted," "meritless," and "not based on any facts presented to the court."

¶ 44 Stilson argues that, because she was "only interested in [Jacobson's] well-being," denying her request for fees "unfairly punishes [her] for trying to protect her brother and his estate." We make no conclusion regarding Stilson's intentions, but we note that the district court found she acted in bad faith. Regardless of Stilson's subjective intent, however, conservators may use the funds of the protected person's estate only to the extent that their actions are reasonable . See Utah Code Ann. § 75-5-424(4) (LexisNexis Supp. 2018). And even if actions are made in "good faith," they may nonetheless be objectively unreasonable. See Conservatorship of Lefkowitz , 50 Cal.App.4th 1310, 58 Cal.Rptr.2d 299, 302 (1996) (determining that "a conservator is entitled to compensation for ... opposing a petition for his or her removal as conservator only if" the opposition is in "good-faith" and "objectively reasonable").

¶ 45 In sum, we affirm-on both grounds upon which the court ruled-the district court's decision to deny Stilson's request for attorney and expert fees incurred in challenging Jacobson's petition to terminate his guardianship and conservatorship.

II. Stilson's Waived Compensation

¶ 46 Stilson argues that the court erred in "refusing to apply the unpaid ... but agreed upon monthly conservatorship fees as an offset against those monies which the court ordered [her] to reimburse." She supports this argument with Utah Code section 75-5-414, which provides: "If not otherwise compensated for services rendered," a conservator "appointed in a protective proceeding is entitled to reasonable compensation from the estate." Utah Code Ann. § 75-5-414 (LexisNexis Supp. 2018).

¶ 47 Here, Jacobson agreed to pay Stilson $1500 per month for her services. In her accounting to the district court, however, she expressly waived any such compensation that she had not yet received. Stilson concedes she made this waiver, but she argues that enforcing it "unfairly punishes" her. We disagree.

¶ 48 In its ruling, the court not only found that Stilson waived her agreed upon compensation, but it also found that she "provided no information to the Court regarding any work she actually performed in managing [Jacobson's] estate or his business during [the relevant] time period that would indicate this fee was reasonable." Stilson attempts to contest this finding by asserting that she "continued to perform her duties up to and even beyond her termination as conservator" as demonstrated by her "full accounting" to the district court. But the court considered and ruled on Stilson's accounting, awarding her reasonable costs incurred in her duties as guardian and conservator. Stilson provides nothing more than bare assertions to support her claim that she provided guardian or conservator services during the relevant period that would have entitled her to "reasonable compensation" from the estate. See id.

¶ 49 In short, we affirm the district court's refusal to credit Stilson for her previously agreed upon compensation because (1) Stilson waived it, and (2) she has failed to show that the district court erred in determining she was not otherwise entitled to it for services rendered.

CONCLUSION

¶ 50 We affirm the district court's ruling on Stilson's request for costs and expenses incurred while she was Jacobson's guardian and conservator.

      In a related argument, Stilson asserts that the district court erred in ordering her to reimburse Jacobson's estate. We disagree. "Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, ... or other appropriate proceeding or action." Utah Code Ann. § 75-5-429(4) (Michie 1993). Because Stilson used more estate funds than she was entitled to use, the court did not err in requiring her to reimburse the estate.


text:
    Cameron Michael COX, Appellee, v. Paige Charissa HEFLEY, Appellant.
    No. 20170903-CA
    Court of Appeals of Utah.
    Filed April 18, 2019
    David Pedrazas, Salt Lake City, Attorney for Appellant
    Lauren Forsyth and Kristopher K. Greenwood, Ogden, Attorneys for Appellee
    Judge Kate Appleby authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.
    Opinion
   APPLEBY, Judge:

¶1 Paige Charissa Hefley appeals the district court's order on competing petitions filed by Hefley and her former spouse, Cameron Michael Cox, to modify their divorce decree. She argues that the court erred by enforcing their stipulation (the Stipulated Decree). We affirm.

BACKGROUND

¶2 Cox and Hefley divorced in February 2014. The original divorce decree awarded Cox primary physical custody of their two minor children subject to Hefley's "reasonable parent-time." In a separate December 2015 case, Hefley was deemed a "vexatious litigant" and ordered "to obtain legal counsel before filing any future claim for relief, and to furnish security to assure payment of any opposing party's reasonable expenses" (the Vexatious Litigant Order).

¶3 In January 2015, Hefley petitioned the district court to modify custody and parent-time. Cox counter petitioned, also requesting modifications to custody and parent-time. After more than two years of litigation on their competing petitions, Cox and Hefley signed the Stipulated Decree, which represented "a full and final agreement regarding all pending issues." It stated, "Both parties ... stipulate to be fully bound by the following terms and conditions."

¶4 The Stipulated Decree "entitled [Hefley] to parent-time as the parties may agree in writing." But absent such agreement, Hefley would receive three days of unsupervised parent-time on alternating weeks. Hefley's unsupervised parent-time was conditioned on her complying with the following terms: (1) "submit to a comprehensive psychological evaluation by a qualified licensed psychologist" and obtain a "diagnosis, a therapy/treatment plan, and a medication plan"; (2) "initiate, maintain and successfully complete all treatment recommendations, medication recommendations, and related items"; (3) not have "any criminal charges, suicide attempts, or mental health hospitalizations"; (4) "not have any illegal and/or un-prescribed drugs or medications in her home, nor allow the children to be in the presence of any person who is under the influence of any illegal drugs or un-prescribed medications"; and (5) not "permit the children to be around domestic violence."

¶5 Cox and Hefley agreed to hire "a different licensed psychologist ... to act as a third party neutral and mental health professional ... to work with the parties to ensure that [Hefley] [was] following the court's orders." The Stipulated Decree required that the third party neutral have access to Hefley's medical records and be allowed to meet with the "parties' minor children and any other relevant party in this action, when necessary." If Hefley failed to comply with the terms of the Stipulated Decree, the parties agreed that supervised parent-time would "be imposed until all appropriate treatment is recommended, complied with, completed, and the third party neutral has no safety concerns for the minor children." The Stipulated Decree also provided, "If the parties do not comply with these terms, the third party neutral may make further restrictions to parent-time arrangements as deemed necessary." Hefley agreed that she "shall not file any type of petition to modify in this case until she has successfully completed the terms and conditions stated herein, and complies with the [Vexatious Litigant Order]."

¶6 About one month after Hefley signed the Stipulated Decree, Cox filed it with the district court. The next day, Hefley filed an "objection to entry of modified decree of divorce" and "motion to strike [the Stipulated Decree]." Hefley asserted that her attorney was not aware of and had not approved the Stipulated Decree until after she signed it, and claimed Cox's attorney "purposely went around [her attorney] and/or completely failed to seek his approval ... prior to submitting the [Stipulated Decree] before the court." Further, Hefley argued that the "terms of the [Stipulated Decree] are completely contrary to Utah law." Specifically, she claimed the Stipulated Decree "transfer[s] the court's judicial authority to a nonqualified individual to make legal rulings without being subjected to review by [the] court" and "unreasonably restricts [Hefley] from filing any petition to modify if it is in the best interest of the children."

¶7 On September 26, 2017, the district court held a telephone conference at which it denied Hefley's motion to strike the Stipulated Decree, overruled her objection to entry of the Stipulated Decree, and said it would sign the Stipulated Decree as it had been submitted. The court also instructed Cox's attorney to "prepare an order." On the same day of the telephone conference, the court signed and entered the Stipulated Decree.

¶8 On October 18, 2017, the district court signed and entered a proposed order on the telephone conference. It provided: (1) "[Hefley's] objection to the entry of the [Stipulated Decree] is overruled"; (2) "[Hefley's] motion to set aside the [Stipulated Decree] is denied"; and (3) "the court approved the stipulation of the parties and will sign the order on the [Stipulated Decree] as it has been submitted."

¶9 Hefley filed a notice of appeal on November 8, 2017, giving notice of her appeal of the order on the telephone conference and the Stipulated Decree.

ISSUES AND STANDARDS OF REVIEW

¶10 First, Cox argues that this court lacks jurisdiction because Hefley's "notice of appeal on the modified decree of divorce was untimely." "An appellate court's determination of whether it has jurisdiction to hear an appeal is a question of law." Hall v. Hall , 2013 UT App 280, ¶ 6, 316 P.3d 970 (quotation simplified). "We address this argument first because a determination that the appeal is untimely would be dispositive." Id.

¶11 Second, Hefley argues that the district court erred in denying her motion to strike the Stipulated Decree because her attorney did not receive or review it until after she signed it. "[A] district court's decision to enforce a stipulation is reviewed for an abuse of discretion." Prinsburg State Bank v. Abundo , 2012 UT 94, ¶ 10, 296 P.3d 709.

¶12 Third, Hefley argues that the court erred in entering the Stipulated Decree because its provisions are "contrary to Utah law." "Although this court generally reviews the determination to modify a divorce decree for an abuse of discretion, insofar as that determination is based on a conclusion of law, we review it for correctness." Id. (quotation simplified).

ANALYSIS

I. Timeliness of Appeal

¶13 Cox argues that this court lacks jurisdiction because Hefley's notice of appeal was not timely filed. We disagree.

¶14 "An appeal may be taken from ... all final orders and judgments ... by filing a notice of appeal...." Utah R. App. P. 3(a). Under the Utah Rules of Appellate Procedure, the notice of appeal "shall be filed with the clerk of the [district] court within 30 days after the date of entry of the judgment or order appealed from."Id. R. 4(a). "If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." Hall v. Hall , 2013 UT App 280, ¶ 6, 316 P.3d 970 (quotation simplified).

¶15 The timeliness of Hefley's notice of appeal turns on when the district court entered a final and appealable order in this case. Cox argues that the final order was the Stipulated Decree, which was entered on September 26, 2017. Hefley disagrees, arguing that the final order was the order on the telephone conference, which was entered on October 18, 2017. Hefley filed her notice of appeal on November 8, 2017-more than thirty days after the Stipulated Decree was entered, but less than thirty days after the order on the telephone conference was entered.

¶16 "For an order or judgment to be final, it must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case." Bradbury v. Valencia , 2000 UT 50, ¶ 9, 5 P.3d 649 (quotation simplified). That is, "a judgment is final when it ends the controversy between the parties." Id. (quotation simplified). "[W]here further action is contemplated by the express language of [an] order, it cannot be a final determination susceptible of enforcement." State v. Leatherbury , 2003 UT 2, ¶ 9, 65 P.3d 1180.

¶17 At the telephone conference, the district court overruled Hefley's objection to entry of the Stipulated Decree, denied her motion to strike the Stipulated Decree, and said it would sign the Stipulated Decree as it had been submitted. But at that time, the court also instructed Cox's counsel to prepare a separate order reflecting its decisions. Thus, although the court signed and entered the Stipulated Decree on September 26, "further action [was] contemplated" by the court because it had instructed Cox's counsel to prepare a separate order. See id. (determining that a "signed minute entry" was not a final order when it required counsel to "prepare Findings of Fact and Conclusions of Law" (quotation simplified)); see also Utah R. Civ. P. 58A(e)(1) ("If a separate document is not required , a judgement is complete and is entered when it is signed by the judge and recorded in the docket." (emphasis added)). For that reason, we conclude that the thirty day period to file a notice of appeal did not begin to run when the district court signed and entered the Stipulated Decree.

¶18 Instead, the thirty day period began to run when the court entered the order on the telephone conference. That order disposed of the case and ended the controversy between the parties. See Bradbury , 2000 UT 50, ¶ 9, 5 P.3d 649. And because the notice of appeal was filed within thirty days after the court entered the order on the telephone conference, this court has jurisdiction to hear Hefley's appeal.

II. The Motion to Strike

¶19 Hefley argues that the district court erred in denying her motion to strike the Stipulated Decree. We disagree.

¶20 To start, we reject Hefley's claim that the Stipulated Decree "should have been stricken" because it "was never signed by an attorney of record." The Stipulated Decree is simply an agreement to settle the parties' dispute. See Klein v. Klein , 544 P.2d 472, 476 (Utah 1975) (explaining that when parties enter "a stipulation pertaining to matters of divorce [and] custody," "the same rules apply to binding [them] to such an agreement as apply to any other agreement"). District courts have "the power to enter a judgment enforcing a settlement agreement if it is an enforceable contract." Goodmansen v. Liberty Vending Sys., Inc. , 866 P.2d 581, 584 (Utah Ct. App. 1993).

¶21 Hefley does not dispute that she understood and voluntarily agreed to the Stipulated Decree. See Klein , 544 P.2d at 476 (affirming a district court's decision to enter the parties' stipulation when the district court "was not convinced that the plaintiff did not understand and voluntarily agree to the stipulation"). Contrary to her assertions, litigants may enter a stipulation or settlement agreement without first obtaining the consent of-or even consulting-their attorneys. See John Deere Co. v. A & H Equip., Inc. , 876 P.2d 880, 887 (Utah Ct. App. 1994) (determining that a settlement agreement "was enforceable despite the fact that it had not been reduced to writing [or] signed by the parties," "nor did the attorneys of record sign and submit to the court a written stipulation"). Thus, we reject Hefley's claim that the district court should have rejected the Stipulated Decree because it was not signed by the parties' attorneys.

¶22 Next, Hefley asserts that Cox's attorney acted "inappropriately" and in violation of the Utah Rules of Professional Conduct. This argument is equally unavailing. As this court has previously explained, "[w]hile compliance with the Utah Standards of Professionalism and Civility is encouraged of all attorneys, an attorney's failure to comply is not grounds for setting aside a judgment." Aghdasi v. Saberin , 2015 UT App 73, ¶ 9, 347 P.3d 427. We stop well short of determining that Cox's attorney violated any professional rule. But even if we were to accept Hefley's assertion that Cox's attorney "violate[d] the Utah Rules of Professional Conduct," that conclusion, by itself, would not require reversal in this case. See id.

¶23 In short, we affirm the district court's decision to deny Hefley's motion to strike the Stipulated Decree.

III. The Terms of the Stipulated Decree

¶24 Hefley argues that the district court erred in entering the Stipulated Decree because its terms are contrary to Utah law. First, she contends that the Stipulated Decree authorizes the third party neutral to "restrict [her] parent-time and custody ... based upon arbitrary and capricious decisions that are unreviewable by the court." Second, she claims the Stipulated Decree "unreasonably restricts [her] from filing a petition to modify in this matter." As explained below, we reject both of these arguments.

A. The Third Party Neutral

¶25 Hefley argues that the Stipulated Decree "transfer[s] the court's judicial authority to a nonqualified individual to make legal rulings without being subjected to review by the court." We disagree.

¶26 Although "[t]he variety of agreements that disputing parties may reach is so vast as to defy cataloging them," In re E.H. , 2006 UT 36, ¶ 20, 137 P.3d 809, "there are certain agreements that so compromise the core responsibilities of the court that they cannot be honored," id. ¶ 21. For example, parties may not enter an agreement that strips "the district court of its statutory charge to ensure that any custody arrangement or change of custody serves the child's best interest." R.B. v. L.B. , 2014 UT App 270, ¶ 16, 339 P.3d 137.

¶27 Contrary to Hefley's assertions, the Stipulated Decree does not allow the third party neutral to make legal rulings free of the district court's review. In fact, it provides that the third party neutral cannot "make court orders." As Cox asserts in his brief, "the third party is not ... appointed to render an award or to resolve the case, but is there to make sure the parties comply with what they agreed to."

¶28 The district court approved Cox and Hefley's agreement to condition Hefley's unsupervised parent-time on her compliance with various terms. Essentially, the parties stipulated-and the court agreed-that, if certain conditions were not satisfied, then supervised parent-time would be appropriate. See Utah Code Ann. § 30-3-34.5 (LexisNexis Supp. 2018) (establishing that "a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse ... if left unsupervised with the non-custodial parent"). The purpose of the third party neutral is "to act as a buffer between [Cox and Hefley] ... so that [they] do not need to pry into the personal records of the other" and "to make sure [they] are completing and in compliance with the terms of [the Stipulated Decree]."

¶29 There is nothing wrong with this arrangement. The parties entered the Stipulated Decree to settle their dispute and advance the best interest of their children. We agree with Cox that he and Hefley were free to agree on a parent-time plan that "would work for them." See In re E.H. , 2006 UT 36, ¶ 20, 137 P.3d 809 (noting that "the law favors the settlement of disputes"); see also Utah Code Ann. § 30-3-33(1) ("Parent-time schedules mutually agreed upon by both parents are preferable to a court-imposed solution."). "[P]arties may plan for contingencies and develop mechanisms to assess a child's best interest outside of the court system." R.B. , 2014 UT App 270, ¶ 16, 339 P.3d 137.

¶30 Further, we disagree with Hefley's claim that the third party neutral's decisions regarding parent-time "are unreviewable by the court." The Stipulated Decree does not intrude on the court's "continuing jurisdiction to make subsequent changes or new orders ... as is reasonable and necessary." Utah Code Ann. § 30-3-5(3). "[T]his court has previously explained that where the parties' stipulation is accepted by the [district] court and incorporated into its divorce order, the subject matter of the stipulation is within the continuing jurisdiction of the court." Sill v. Sill , 2007 UT App 173, ¶ 11, 164 P.3d 415 (quotation simplified). And "even when the parties in a custody dispute agree to be bound by an evaluator's findings, the district court retains the ultimate authority to preside over the proceedings, to satisfy itself that the evaluator's recommendations were properly arrived at, and to enter a final order." R.B. , 2014 UT App 270, ¶ 14, 339 P.3d 137 (quotation simplified).

¶31 Here, by approving the Stipulated Decree, the court "merely agreed to follow a process for the determination of the best interests of [the children] and to uphold this process so long as it adequately served that end." In re E.H. , 2006 UT 36, ¶ 21, 137 P.3d 809. Indeed, Cox acknowledges that each party may file objections and motions, request relief from the court, and seek judicial review of any action taken by the third party neutral. Hefley gives us no reason to conclude otherwise. Thus, we reject her argument that the Stipulated Decree allows the third party neutral "to make legal rulings without being subjected to review by the court."

B. Petitions to Modify

¶32 Hefley argues that the Stipulated Decree "unreasonably restricts [her] from filing any petition to modify in this matter." Specifically, she claims "it prevents the court from ever addressing the best interest of the children or change in circumstances, even in the case of abuse and/or neglect." We also reject this argument.

¶33 "[P]arties cannot stipulate away the district court's statutory responsibility to conduct a best-interest analysis ... to ensure that any custody arrangement ... serves the child's best interest." R.B. v. L.B. , 2014 UT App 270, ¶ 16, 339 P.3d 137 ; see also Sill v. Sill , 2007 UT App 173, ¶ 9, 164 P.3d 415 (determining that a "non-modification provision did not divest the court of its continuing jurisdiction" to consider a petition to modify alimony).

¶34 Here, the relevant language provides that Hefley "shall not file any type of petition to modify in this case until she has successfully completed the terms and conditions stated herein, and complies with the [Vexatious Litigant Order]." On appeal, Cox argues that this provision does not prevent Hefley from filing a petition to modify the Stipulated Decree. Instead, he asserts it requires only that Hefley comply with the Vexatious Litigant Order before filing such a petition. We agree with Cox that Hefley would be required to comply with the Vexatious Litigant Order "regardless of it being in the [Stipulated Decree]."

¶35 By statute, the district court "has continuing jurisdiction to make subsequent changes or new orders for the custody of a child and the child's support ... as is reasonable and necessary." Utah Code Ann. § 30-3-5(3) (LexisNexis Supp. 2018). Thus, although Hefley must comply with the Vexatious Litigant Order, she may petition to modify the Stipulated Decree if "there have been changes in the circumstances upon which the previous award was based that are sufficiently substantial and material to justify reopening the question." See Blocker v. Blocker , 2017 UT App 10, ¶ 11, 391 P.3d 1051 (quotation simplified).

¶36 In sum, we conclude that the terms of the Stipulated Decree are not contrary to Utah law.

CONCLUSION

¶37 This court has jurisdiction over Hefley's appeal. The district court did not err in denying Hefley's motion to strike the Stipulated Decree, and the terms of the Stipulated Decree are not contrary to Utah law. Accordingly, we affirm.

      Under rule 83 of the Utah Rules of Civil Procedure, "[a] court may find a person to be a vexatious litigant if the person, without legal representation, undertakes any of four types of vexatious conduct described in the rule, such as repeatedly filing nonmeritorious claims." Strand v. Nupetco Assocs. LLC , 2017 UT App 55, ¶ 6, 397 P.3d 724 ; see also Utah R. Civ. P. 83(a). Further, "[r]ule 83 authorizes a court to impose restrictive orders ... to curb the litigant's vexatious conduct." Strand , 2017 UT App 55, ¶ 5, 397 P.3d 724 ; see also Utah R. Civ. P. 83(b).

      Hefley asserts that her failure to consult counsel before signing the Stipulated Decree is particularly "distressing" because Cox had previously claimed that she "is mentally unstable." We decline to address this issue because Hefley has not preserved it for appeal. See Sandusky v. Sandusky , 2018 UT App 34, ¶ 37, 417 P.3d 634 ("An issue is preserved for appeal only if it was presented to the [district] court in such a way that [the court] had an opportunity to rule on it." (quotation simplified)). Hefley never suggested to the district court that mental instability prevented her from understanding or voluntarily entering the Stipulated Decree.

      Hefley also argues that the Stipulated Decree "does not follow the Uniform Deployed Parents Custody, Parent Time, and Visitation Act." See Utah Code Ann. §§ 78B-20-101 to -503 (LexisNexis 2018). But she has failed "to explain, with reasoned analysis supported by citations to legal authority and the record," why she should prevail on this claim on appeal. Chaparro v. Torero , 2018 UT App 181, ¶ 32, 436 P.3d 339 (quotation simplified). Because this argument has been inadequately briefed, we do not address it further. See id.