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Category: Relocation

I’m a US citizen. I got divorced overseas. I have a child custody from an overseas country. What should I do to legalize the overseas court order in the US?

Confer with an attorney in the jurisdiction where you and/or the other parent now reside who has knowledge and experience with registering foreign divorce and child custody orders in the jurisdiction where you and/or the other parent now reside.

(48) I’m a US citizen. I got divorced overseas. I have a child custody from an overseas country. What should I do to legalize the overseas court order in the US? – Quora

Utah Family Law, LC | divorceutah.com | 801-466-9277

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I Am 14 and I Want to Live With My Dad. My Parents Have Shared Custody, but My Mom Wants to Keep Me Her Alone (And She’s Not a Good Person). How Do I Stay With My Father Full Time?

I will answer this question in the context of Utah law because I am licensed as an attorney and practice divorce and family law in the state of Utah.

For the typical child in your situation, i.e., one who wants to obtain a modified order from the court changes the award of child custody from one parent to another, there is precious little that the child can do to affect this kind of change.

In fairness, there are some good policy reasons for why this situation arises. For example:

  • Young children often have poor judgment and may not know whether residing primarily with the parent the children wants to reside is in the child’s best interest.

–   A 9-year-old child may say he/she wants to live with a particular parent not because that parent is a fit parent but just the opposite, i.e., doesn’t ensure the child completes homework, chores, doesn’t ensure the child practices good hygiene, feeds the child junk for meals, imposes no discipline, etc.

–   A tween-age or teen-age child may say he/she wants to live with a particular parent not because that parent is a fit parent but because that parent lets the child run wild, skip school, drink, smoke, take drugs, be sexually active, etc.

  • Many young children can be too easily manipulated and/or intimidated into saying that they want what they don’t really want by way of the custody and parent-time schedule.
  • Some feel that seeking the input of children on the subject of the child custody and parent-time awards “traumatizes” (this word is grossly overused in family law) children by placing them in a position where they must favor or choose one parent over another.

These are clearly factors worth carefully considering if and when a child objects to residing with a particular parent or objects to a particular custody or parent-time schedule. But too often courts invoke these factors as a reason to utterly silence and to completely ignore anything a child has to say on. Why?

Is it because all minor children are clearly unable to be taken seriously because of their status as minor children? Obviously not. While some children may be too young or too immature to have sound bases for, or to make sound arguments for, their custodial preferences, plenty of children are more than sufficiently intelligent and mature and responsible to be credible witnesses on their own behalf. And we’ll never know whether a child is a credible or an incredible witness if we don’t inquire with the child first. Courts reject the testimony of lying and incompetent witnesses all the time (as well they should), yet many courts reject a child’s testimony without giving the child a chance to speak on the grounds that they might lie, that they might be coached, and/or that they might be too stupid or naïve to be taken seriously. That’s no different than convicting a defendant without a fair trial because he “might be” guilty.

Is it because asking a child to express his/her opinions is inherently and irreparably harmful to all children, or even to most children? Obviously not. If a child tells his/her parents and the court, “Don’t ask me to talk about this,” then it may be that honoring that child’s wishes is best. By the same token, however, if a child tells his/her parents and the court something to the effect of:

  • “I have a greater stake in the child custody and parent-time awards than anyone else involved in this case.”
  • “I have experiences, observations, opinions, and desires that deserve to be considered before the court makes these decisions that will affect my life for years to come as a youth and throughout my life as an adult.”

So why do some (most, though not all) courts refuse to hear from children about their custodial preferences and the reasons for those preferences? Why do some courts muzzle the children from the outset? Why do they refuse to weigh the credibility and evidentiary value of what the children who want to be heard have to say? In my opinion, it’s laziness disguised as “prudence” and “compassion”.

So, what does a child who wants and deserves a change of custody do? This may sound radical, but it’s really not: get your own attorney to help you. That’s the legal way to do it. And it’s easier said than done. You’ll be excoriated and mocked for trying. You may even be threatened. Be prepared for all this. There are all kinds of extralegal “self-help” methods that are easier and cheap or free by comparison, but that has never been an excuse to break the rules (unless the rules are inherently unfair or administered unfairly). I encourage children in your situation to work through the system even when it’s organized and administered to work against you.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Why Don’t All Divorced Wives Get Half of Their Husbands’ Property?

Because divorce is not about a spouse (man or woman) getting “half of everything”.

Depending upon whether a state is a “community property” state or an “equitable distribution” state, here is how property is divided between spouses in a divorce:

A community-property state is state in which spouses hold property that is acquired during marriage (other than property acquired by one spouse by inheritance, devise, or gift) as community property. Otherwise stated, all property that is acquired during the marriage by either spouse (other than property acquired by one spouse by inheritance, devise, or gift) or by both spouses together is jointly and equally owned and will be presumed to be divided in divorce equally between the divorcing spouses. Nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

An equitable distribution state seeks to divide property in divorce in a fair, but not necessarily equal, manner. An equitable property state court can divide property between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including (but not limited to) a spouse’s monetary contributions, nonmonetary assistance to a spouse’s career or earning potential, the efforts of each spouse during the marriage, the length of the marriage, whether the property was acquired before or after marriage, and whether the property acquired by one spouse by inheritance, devise, or gift. The court may take into account the relative earning capacity of the spouses and the fault of either spouse (See Black’s Law Dictionary, 11th ed.). Equitable distribution is applied in the non-community property states.

So, does a spouse “get half of everything” in divorce? Possibly, but not always, and now you know why.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Why don’t all divorced wives get half of their husbands’ property? – Husbands and wives – Quora

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Pulham v. Kirsling – 2018 UT App 65 – custody, parent-time, child support

Pulham v. Kirsling – 2018 UT App 65
THE UTAH COURT OF APPEALS

KRISTEN PULHAM,
Appellee,
v.
WILLIAM KIRSLING,
Appellant.

Opinion
Nos. 20150577-CA and 20160236-CA
Filed April 12, 2018
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 104901246
Margaret S. Edwards, Attorney for Appellant
Steve S. Christensen and Clinton R. Brimhall, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.

POHLMAN, Judge:

¶1        This case involves two appeals in the same domestic relations dispute.[1] In the first appeal (the First Appeal), William Kirsling challenges several aspects of the amended decree entered in his divorce from Kristen Pulham. In the second appeal (the Second Appeal), Kirsling challenges the trial court’s denial of his petition to modify the divorce decree’s custody arrangement. We affirm the trial court’s decisions in both appeals.

BACKGROUND

The Trial and the Amended Decree

¶2        Pulham and Kirsling were married in 2008 and separated in 2010. The parties had one child (Child) born during the marriage. In June 2012, the trial court entered a bifurcated decree of divorce, reserving several issues for trial.

¶3        At a bench trial in 2014, the parties contested the issues of custody, child support, past-due child support, and unreimbursed child care expenses. Each party also alleged that the other party was in contempt of the court’s prior orders and should therefore face sanctions.

¶4        On Child’s custody, the trial court made detailed findings. Among other things, it found that Pulham had remarried, had a son with her new husband, and was living in Tooele, Utah. The court also found that Pulham had been the primary caregiver of Child since birth and that, at the time of trial, Pulham was unemployed and was acting as the full-time caregiver of her younger son and Child.

¶5        Regarding Kirsling, the court found that he was living in Taylorsville, Utah, with his girlfriend and her children, and that Kirsling’s older son from a previous marriage lived with Kirsling part-time. The court also found that Kirsling had resided in various places, including Brigham City, Utah, and Phoenix, Arizona, for lengthy periods after the parties separated. The court found that even though Kirsling’s “contact and visitation with [Child] ha[d] been inconsistent for much of that time,” his contact had “stabilized considerably” in the year leading up to trial.

¶6        Although Kirsling and Pulham agreed at trial that it would be in Child’s best interest if they shared joint physical and legal custody, they sharply disagreed about the details of that custody, including where Child should be enrolled in school and with whom she should primarily reside. A custody evaluator prepared a custody evaluation and testified about it at trial.

¶7        Kirsling requested a court order requiring Child to enroll in the school near his home in Taylorsville for three years, at which point Child would then transfer to the school near Pulham’s home for the latter half of elementary school. The court rejected Kirsling’s request, reasoning that his plan would require Child “to spend considerable time commuting by car between Taylorsville and Tooele”—amounting to “upwards of an hour each way, before school and after school”—and that it was not in Child’s best interest to do so merely to accommodate Kirsling’s preferred parenting plan. The court also reasoned that Kirsling’s plan would require Child to change elementary schools and that such a plan, which would put Child through “an unnecessary adjustment of surroundings, friends and routine,” was not in Child’s best interest.

¶8 In the November 2014 amended divorce decree (the Amended Decree), which followed the earlier bifurcated decree, the trial court awarded the parties joint physical and legal custody. The court also ordered that Pulham would be the primary custodial parent and would have the final say in parenting decisions for Child, including which school Child would attend.

¶9        As for parent-time, the court determined that a standard parent-time order, as anticipated under Utah Code section 30-3-35, did “not provide sufficient parent time” for Kirsling and was not in Child’s best interest. As a result, the court awarded Kirsling additional parent-time in a manner that avoided “creating the attendant travel time that would be inflicted upon [Child] by [Kirsling’s] proposed parenting plan.”

¶10 On future child support, the trial court found that it would be calculated based on Pulham’s monthly income of $30 and Kirsling’s monthly income of $4,580, “which are the stipulated monthly gross incomes” of the parties. Then, referencing the Utah Code and a custody worksheet,[2] the court ordered Kirsling to pay Pulham $548 per month for child support.

¶11 On past-due child support, the trial court found that the evidence supported Pulham’s claim that Kirsling had an outstanding obligation for a period before 2012. The court also found that Pulham incurred fees paid to the Office of Recovery Services (ORS) due to Kirsling’s “failure to timely pay his child support obligation.” Because Kirsling had not been “consistently responsible for payments until ORS intervened,” the court agreed with Pulham that Kirsling should reimburse her for the ORS fees. Accordingly, the court ordered Kirsling to pay Pulham for past-due child support and ORS fees.

¶12 On unreimbursed child care expenses, the trial court found that Pulham had shown that Kirsling had not paid his share of some expenses. The court ordered Kirsling to pay Pulham those expenses.

¶13 Finally, on the allegations of contempt of court, the trial court found that “insufficient evidence was presented at trial to warrant sanctions for either party.” Thus, the court dismissed all charges of contempt.

The Motion for a New Trial

¶14 Kirsling moved for a new trial pursuant to rule 59(a) of the Utah Rules of Civil Procedure.[3] The motion was accompanied by an unsworn document signed by his attorney that purported to be Kirsling’s affidavit. As relevant here, Kirsling challenged the trial court’s decisions regarding child support and custody as well as the amounts Kirsling owed to Pulham for past-due child support and child care expenses.

¶15      With respect to the amounts owed to Pulham for past-due child support and child care expenses, Kirsling contended that, under rule 59(a)(4), he had newly discovered evidence that he could not have produced at trial. Referring to Pulham’s testimony that she did not receive a particular payment, he asserted that post-trial he was “able to obtain a photocopy of the cashed money order that was presented to [Pulham’s] counsel as settlement for the financial issues of the case” and that the new information affected the amounts he owed Pulham.

¶16 In denying the motion, the trial court began by characterizing the purported affidavit as “an argument by [Kirsling’s] counsel, complaining generally of the failure of the Court to find in [Kirsling’s] favor.” The court then rejected Kirsling’s newly discovered evidence argument, explaining that Kirsling had not established “whether or why he was unable to obtain this evidence prior to trial” and also had not shown that “the introduction of the evidence would have resulted in a different trial outcome.”[4]

¶17 Kirsling raised another argument under rule 59(a)(6), attacking the court’s determination that Pulham’s gross monthly income was $30 for child support purposes. Kirsling argued that the evidence was insufficient because the court did “not show[] why Ms. Pulham’s income was not calculated” based on her employment potential and probable earnings pursuant to a statute governing the imputation of income. Kirsling asserted this same argument as an error of law under rule 59(a)(7).

¶18 The court rejected Kirsling’s arguments. It explained that Utah Code section 78B-12-203(7) dictates the circumstances under which the trial court may impute income and gives discretion to the court to impute under those certain circumstances. The court then explained that it “did not impute income to [Pulham]” and that the application of this statute was “not the basis for a complaint of ‘insufficient evidence’” under rule 59(a)(6). Similarly, the court concluded that, in relation to rule 59(a)(7), it had not committed an error of law, because it had “exercised its discretion in determining not to impute income to [Pulham], something the statute authorizes it to do.”

¶19 Concerning custody, Kirsling contended that, under rule 59(a)(7), the trial court erred when it did not follow the recommendations of the custody evaluator. In particular, he stated that the court failed to provide “a detailed and clear finding” explaining why it did not adopt the custody evaluator’s recommendation. The court rejected this argument as well, maintaining that it had “articulated the reasons for its decision regarding custody.”

¶20      The trial court denied the motion for a new trial on June 17, 2015. Kirsling filed a timely notice of appeal, giving rise to the First Appeal. In his notice of appeal, Kirsling stated that he thereby appealed “the final Decree of Divorce . . . entered in this matter on June 17, 2015,” and that the appeal was “taken from such parts of the judgment as follow”: Paragraph 3 regarding child support calculation; Paragraph 4 regarding child support, ORS fees, and child care expenses; and Paragraph 8 regarding contempt.

The Petition to Modify the Amended Decree

¶21 On the same day he filed the First Appeal, Kirsling petitioned the trial court for a modification of the Amended Decree. Specifically, Kirsling asserted that “[a] significant change of circumstances has occurred as a result of [his] recent relocation to Stansbury Park, Utah, which is located approximately 15 minutes of driving time from his home to the home of [Pulham].” Kirsling further asserted that at the time the trial court entered the Amended Decree he lived approximately forty-five minutes away from Pulham and that “[t]his distance affected the Court’s awarding of parent time for both the overnight schedules, school choices and the midweek parent time determinations.” Because the long “commute time no longer exist[ed],” Kirsling requested that the court change the schedule to “fifty-fifty,” essentially asking to have Child spend every other week with him.[5]

¶22 Pulham responded by filing a motion to dismiss the petition to modify. Although she did not dispute that Kirsling had relocated, she contended that Kirsling’s move from Taylorsville to Stansbury Park did “not represent a change of circumstances sufficient to modify the controlling order,” because it did not affect her “parenting ability” and the “functioning of the current custodial relationship.”

¶23 A court commissioner heard the matter and recommended that the trial court deny Pulham’s motion to dismiss. Pulham objected to that recommendation, and the trial court ultimately resolved the petition to modify on its merits. The court observed that it had “considered the distance the minor child would be subjected to traveling” when entering its custody and parent-time orders in the Amended Decree, but it expressed concern that Kirsling’s “stop” in Stansbury Park would be “brief,” in light of his “somewhat migratory history.” The court also expressed concern that, “given the timing of the move and the petition itself, [Kirsling] made this move solely to create a change in circumstances in an effort to succeed in modifying the decree.”

¶24       Although Kirsling’s relocation closer to Pulham “benefits

all parties, including the minor child,” the court concluded that the “move, in and of itself, is wholly insufficient to create a sufficient change of circumstances to warrant reconsideration” of the Amended Decree, and it denied Kirsling’s petition to modify. Kirsling filed another notice of appeal, which triggered the Second Appeal.

ANALYSIS

I. The First Appeal

¶25 Kirsling raises three issues in the First Appeal. First, he contends that the trial court erred in calculating “Pulham’s income at $30 per month for child support purposes.” Second, he contends that it erred in denying his motion for a new trial on his claim of newly discovered evidence related to child care expenses. Third, he contends that the trial court erred in deviating “from the recommendations of the court-appointed custody evaluator without making any specific findings on the record as to its deviation.” Before we reach the merits of these contentions, however, we must consider whether Kirsling’s notice of appeal vested this court with jurisdiction to consider and address these issues.

A. The Scope of This Court’s Jurisdiction

¶26 As a threshold matter, we first consider Pulham’s argument that this court lacks jurisdiction to review certain issues on appeal. Pulham argues that “Kirsling’s notice of appeal invokes this Court’s jurisdiction over only some of the issues he has argued in his brief.” According to Pulham, “Kirsling’s notice of appeal references only the decisions in the Amended Decree relating to child support, a monetary judgment, and the dismissal of contempt charges,” and “[b]ecause [his] notice of appeal does not reference the district court’s custody award or the . . . denial of [his] motion for a new trial, this Court lacks appellate jurisdiction over issues related to those decisions.” Kirsling counters that a notice of appeal’s “designation of the specific parts [of an order or judgment] does not waive the appeal of the whole order or judgment” and that therefore this court “has jurisdiction over all of the issues raised on appeal . . . , as well as the issues concerning the post-trial motion” for a new trial.

¶27 “Whether appellate jurisdiction exists is a question of law . . . .” Goggin v. Goggin, 2011 UT 76, ¶ 16, 267 P.3d 885 (quotation simplified). Likewise, we “determine whether a Notice of Appeal is adequate to grant this court jurisdiction as a matter of law.” State v. Valdovinos, 2003 UT App 432, ¶ 13, 82 P.3d 1167 (quotation simplified).

¶28      The Utah Supreme Court has “emphasized that the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case . . . [because the opposing party] is entitled to know specifically which judgment is being appealed.” Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474 (quotation simplified). Rule 3(d) of the Utah Rules of Appellate Procedure dictates the content of a notice of appeal: “The notice of appeal . . . shall designate the judgment or order, or part thereof, appealed from . . . .” Utah R. App. P. 3(d); see also U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 11, 990 P.2d 945. This requirement “is jurisdictional.” Jensen, 1999 UT 10, ¶ 7. As a result, an “order not identified in the notice of appeal falls beyond [this court’s] appellate jurisdiction.” In re adoption of B.B., 2017 UT 59, ¶ 106.

¶29 “[W]here the notice of appeal sufficiently identifies the final judgment at issue and the opposing party is not prejudiced, the notice of appeal is to be liberally construed.” Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 14, 199 P.3d 957 (quotation simplified). Put another way, “[w]here the appealing party’s intent is clear and the appellee suffers no prejudice, the notice of appeal is sufficient.” Id. ¶ 15.

¶30 As noted above, rule 3(d) requires that the notice of appeal “designate the judgment or order, or part thereof, appealed from.” Utah R. App. P. 3(d) (emphasis added). If an appellant has adequately designated the judgment or order appealed from, we do not read the rule’s language as also requiring the appellant to designate the “part thereof.” See id. But where an appellant chooses to identify the specific parts of a judgment subject to the appeal and gives notice of its intent to appeal only those parts of a particular judgment, our jurisdiction is limited by that representation. Cf. In re adoption of B.B., 2017 UT 59, ¶ 106. In other words, “our jurisdiction is limited by the wording of the notice.” Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 135 (2d Cir. 2016) (quotation simplified) (holding that the language of a notice of appeal limits an appellate court’s jurisdiction to those issues expressly identified in the notice);[6] see also Muller v. Holmes, 353 F. App’x 664, 666 (2d Cir. 2009) (same); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977) (“When an appeal is taken from a specified judgment only or from a part of a specified judgment, the court of appeals acquires thereby no jurisdiction to review other judgments or portions thereof not so specified or otherwise fairly to be inferred from the notice as intended to be presented for review on the appeal.” (emphasis added)).

¶31 Here, Kirsling’s notice of appeal for the First Appeal states that he appeals “the final Decree of Divorce . . . entered in this matter on June 17, 2015,” and specifies that the appeal “is taken from such parts of the judgment as follow”:

  • Paragraph 3 regarding child support calculation;
  • Paragraph 4 wherein Mr. Kirsling was ordered to pay . . . child support and ORS fees and . . . child care expenses; and
  • Paragraph 8 wherein all charges of Contempt are dismissed.

The Amended Decree was entered on November 4, 2014. The order denying Kirsling’s motion for a new trial was entered on June 17, 2015. When the notice of appeal is considered in context, its reference to “the final Decree of Divorce” manifests Kirsling’s intent to appeal from the Amended Decree, and its reference to an order “entered in this matter on June 17, 2015,” manifests his intent to appeal from the order denying his motion for a new trial. See Speros v. Fricke, 2004 UT 69, ¶ 15, 98 P.3d 28 (interpreting a notice of appeal as an appeal from a January 15 order despite its reference to a nonexistent January 11 order because the appellant’s intent to appeal the former order was evident from the context). We thus conclude that Kirsling’s notice of appeal sufficiently designates the Amended Decree and the order denying the motion for a new trial as “the judgment[s] or order[s] . . . appealed from.” Utah R. App. P. 3(d).

¶32      But the notice of appeal does more; it also designates the “part[s] thereof” to be appealed. See id. It does so by stating that the appeal “is taken from such parts of the judgment as follow”: Paragraph 3 regarding child support; Paragraph 4 regarding past-due child support, ORS fees, and child care expenses; and Paragraph 8 regarding contempt. Because the Amended Decree has paragraph numbers and subject matters that correspond to those mentioned in the notice of appeal, we read the notice of appeal’s references to specific paragraphs as referring to Paragraphs 3, 4, and 8 of the Amended Decree. We thus construe the notice of appeal as manifesting Kirsling’s intent to contest on appeal only the issues of child support, past-due child support, ORS fees, child care expenses, and contempt. In contrast, the notice of appeal does not convey Kirsling’s intent to appeal issues related to the custody evaluation or the parenting plan— issues that were resolved in other paragraphs of the Amended Decree that are not cited in the notice of appeal. By expressly identifying the parts of the trial court’s ruling from which the appeal was taken, Kirsling manifested an intent not to appeal the other parts of the trial court’s Amended Decree and its related order denying his post-trial motion.[7]

¶33 In sum, because Kirsling’s notice of appeal identifies the specific parts of the trial court’s Amended Decree that he contests on appeal, our jurisdiction is limited to those particular parts. To be precise, this court has jurisdiction to review issues related to “the child support calculation”; the order directing Kirsling to pay ORS fees, past-due child support, and child care expenses; and the dismissal of the contempt charges.[8] The issues in his opening brief that are not identified in his notice of appeal—relating to the custody evaluation and the parenting plan—are outside this court’s jurisdiction. Cf. In re adoption of B.B., 2017 UT 59, ¶ 106 (determining that the supreme court had no jurisdiction to review a consent order, where that order was not mentioned in the notice of appeal and where that order was a distinct final judgment from another final judgment that was properly identified in the notice of appeal). Having identified those issues that are properly before this court in the First Appeal, we now address their merits.

B. Calculation of Income for Child Support Purposes

¶34 Kirsling contends that the trial court erroneously calculated Pulham’s monthly income for child support purposes as $30, asserting that “[e]ither the $30 per month finding regarding Pulham’s income was supported by insufficient evidence, or the trial court erroneously imputed income to her absent proper procedure.” In his view, Pulham’s income should have been imputed at a much higher amount. He thus asserts that the trial court’s error resulted in “an excessive award of child support to Pulham” and asks us to reverse and remand for the trial court to “determine the income based on [Pulham’s] historical income.”

¶35      Because trial courts have broad discretion to award child support, we will not disturb such a decision “absent an abuse of discretion.” Roberts v. Roberts, 2014 UT App 211, ¶ 7, 335 P.3d 378. “That means that as long as the court exercised its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions, we will not substitute our judgment for the trial court’s.” Id. (quotation simplified). Likewise, we review the trial court’s denial of Kirsling’s motion for a new trial for abuse of discretion. See Wall v. Wall, 2007 UT App 61, ¶ 8, 157 P.3d 341. We will set aside the trial court’s factual findings only if they are clearly erroneous. Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (“A trial court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” (quotation simplified)).

¶36 We begin with Kirsling’s contention that the trial court’s finding regarding Pulham’s income is clearly erroneous because it lacks evidentiary support. On this point, we agree that no evidence adduced at trial supported the conclusion that, at the time of trial, Pulham had a monthly income of $30. It was undisputed that Pulham was unemployed and cared for her young children full-time. The trial court, however, did not purport to base its determination of income on the testimony or other evidence at trial. Rather, the court twice stated that its income determination was based on the parties’ “stipulated monthly gross incomes.”

¶37 Kirsling does not acknowledge the trial court’s explanation that its income determination was not based on evidence but on a stipulation by the parties. See Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (requiring an appellant to address the basis for the trial court’s ruling). Nevertheless, we acknowledge that the referenced stipulation does not appear to be in the record on appeal. And, when asked in oral argument to explain the origin of the $30 figure, counsel for Pulham admitted that he did not know.

¶38      But even assuming the court erred in determining that the parties stipulated to Pulham’s monthly income in the amount of $30, we conclude that the error would not warrant reversal. “[W]e will not reverse a judgment merely because there may have been [an] error; reversal occurs only if the error is such that there is a reasonable likelihood that, in its absence, there would have been a result more favorable to the complaining party.” Portfolio Recovery Assocs., LLC v. Migliore, 2013 UT App 255, ¶ 15, 314 P.3d 1069 (quotation simplified); see also Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). As noted above, the undisputed evidence at trial showed that Pulham was unemployed and had no income. Thus, if the court erred in attributing some income to her based on a stipulation, that error arguably favored Kirsling. At the least, Kirsling has not demonstrated that if Pulham’s income was decreased from $30 to $0 that his child support obligation would be reduced. As a result, we will not reverse the trial court on this basis.

¶39      We further conclude that Kirsling has not established that the alleged error of which he complains entitles him to his requested relief—a new trial with the opportunity to request the imputation of additional income to Pulham based on evidence not presented at trial. Kirsling did not move for a new trial on this issue under rule 59(a)(4) of the Utah Rules of Civil Procedure based on a claim of newly discovered evidence, and he has not shown that the court committed an error of law by not imputing income to Pulham based on her anticipated earnings or the federal minimum wage such that a new trial would be warranted under rule 59(a)(7). See Utah Code Ann. § 78B-12-203(7) (LexisNexis 2012) (allowing under certain circumstances for the imputation of income for child support purposes based on employment potential and anticipated earnings or the federal minimum wage for a forty-hour work week).[9] See generally Utah R. Civ. P. 59(a)(4), (a)(7) (2014) (permitting the court to grant a new trial on the grounds of newly discovered evidence or errors in law).

¶40 Income in a contested case may be imputed under Utah Code section 78B-12-203 only if the court “enters findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(7)(a). Where income is imputed, it “shall be based upon [the parent’s] employment potential and probable earnings,” id. § 78B-12-203(7)(b), or, where a parent “has no recent work history” or an unknown occupation, “income shall be imputed at least at the federal minimum wage for a 40-hour work week,” id. § 78B-12-203(7)(c). Moreover, income “may not be imputed” if certain conditions exist, including where “the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn.” Id. § 78B-12-203(d)(i).

¶41 The subject of imputation of income was not raised until Kirsling’s post-trial rule 59 motion. And, as Kirsling concedes on appeal, none of the factors relevant to imputing income to Pulham based on her employment potential and probable earnings were discussed, and information about those factors was not placed on the record. In fact, the only evidence at trial arguably relevant to the imputation of income was that Pulham worked for a time but that she “barely made anything” after paying for child care. Given that the record contains no evidence regarding Pulham’s employment potential and probable earnings, and given that her undisputed testimony was that the cost of child care approached the amount of income she previously had earned, see id., we cannot conclude that the trial court committed legal error in not imputing income to Pulham under section 78B-12-203(7)(b).

¶42 Similarly, Kirsling’s argument that the trial court should have imputed income to Pulham under Utah Code section 78B­12-203(7)(c) at the federal minimum wage also fails. Not only did Kirsling not ask for imputation under this provision at trial or in his post-trial motion, but he now admits that “Pulham does have recent work history.” Thus, he implicitly concedes that imputation under that section would not have been appropriate. See id. § 78B-12-203(7)(c) (“If a parent has no recent work history or a parent’s occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40-hour work week.” (emphasis added)). We therefore affirm the trial court’s child support order and its denial of Kirsling’s related rule 59 motion.[10]

C. Newly Discovered Evidence Related to Child Care Expenses

¶43 Kirsling next contends that the trial court erred in denying his motion for a new trial when it refused to consider newly discovered evidence relating to past-due child care expenses. According to Kirsling, he “had been misinformed at the time of trial that he could not obtain evidence to show that Pulham had received and cashed” a money order that he had given to her counsel, but he was able to obtain a copy of that cashed money order after trial. Kirsling asserts that he undertook due diligence but that the misinformation given to him was “outside of his control.” He further asserts that the copy of the cashed money order would “affect[] the financial settlement ordered by the court” and that therefore the court should have granted him a new trial. [11]

¶44      Rule 59(a)(4) provides that a new trial may be granted if a party shows the existence of material and “[n]ewly discovered evidence, . . . which he could not, with reasonable diligence, have discovered and produced at the trial.” Utah R. Civ. P. 59(a)(4) (2014). Such a motion “shall be supported by affidavit.” Id. R. 59(c). “In deciding whether to grant a new trial, the trial court has some discretion, and we reverse only for abuse of that discretion.” Wall v. Wall, 2007 UT App 61, ¶ 8, 157 P.3d 341 (quotation simplified).

¶45      The trial court denied Kirsling’s rule 59 motion based on his claim of newly discovered evidence. The court reasoned that he had not established “whether or why he was unable to obtain this evidence prior to trial” and had not shown that “the introduction of the evidence would have resulted in a different trial outcome.”

¶46 Kirsling’s argument fails because he has not addressed the trial court’s rationale for denying his motion. See Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (explaining that an appellant must address and show error in the basis for the trial court’s ruling). Moreover, though Kirsling recites the factual basis for his claim that evidence was newly discovered, he cites no evidentiary basis for his assertions that he could not obtain the relevant evidence prior to trial. Aside from his rule 59 motion and memorandum, the only material that Kirsling presented to the trial court in support of his newly discovered evidence claim was a document signed by his attorney purporting to be Kirsling’s affidavit. Rule 59(c) requires that a newly discovered evidence claim be “supported by affidavit,” Utah R. Civ. P. 59(c) (2014), but, as the trial court correctly noted, the purported affidavit is “more accurately characterized as an argument by [Kirsling’s] counsel.” Given Kirsling’s failure to provide the trial court with evidentiary support, the court did not exceed its discretion in denying Kirsling’s motion.

II. The Second Appeal

¶47 The Second Appeal centers on the trial court’s denial of Kirsling’s petition to modify the Amended Decree. We first address Kirsling’s sole argument on appeal regarding that decision, and then address the parties’ requests for an award of attorney fees incurred in the Second Appeal.

A. The Petition to Modify

¶48 Kirsling argues that the trial court “applied an incorrect heightened standard to arbitrarily foreclose modification” on the basis that “a substantial change of material circumstances had not occurred.” According to Kirsling, he was asking for a modification of parent-time, and the trial court therefore should have applied “a less strict” standard.

¶49 “We generally review the determination to modify a divorce decree for an abuse of discretion. However, to the extent that determination is based on a conclusion of law, we review it for correctness.” Snyder v. Snyder, 2015 UT App 245, ¶ 9, 360 P.3d 796 (quotation simplified).

¶50 The Utah Supreme Court has recognized that the threshold “change in circumstances required to justify a modification of a divorce decree varies with the type of modification sought.” Haslam v. Haslam, 657 P.2d 757, 758 (Utah 1982). As a general rule, modifying a custody order requires a showing of a substantial and material change in circumstances. Doyle v. Doyle, 2011 UT 42, ¶¶ 24–25, 258 P.3d 553. In contrast, altering parent-time arrangements requires a showing of changed circumstances, but that “showing does not rise to the same level as the substantial and material showing required when a district court alters custody.” Jones v. Jones, 2016 UT App 94, ¶ 10, 374 P.3d 45 (citing Becker v. Becker, 694 P.2d 608, 609, 611 (Utah 1984); Haslam, 657 P.2d at 758); accord Blocker v. Blocker, 2017 UT App 10, ¶¶ 12–14, 391 P.3d 1051.

¶51 Contrary to Kirsling’s contention, the trial court did not apply a “substantial change of material circumstances” standard. The court ultimately stated that Kirsling’s move was “insufficient to create a sufficient change in circumstances to warrant reconsideration of the Court’s Order.”[12] (Emphasis added.) And while the court described the standard as “high,”nowhere in its order did it identify the “substantial change of material circumstances” standard as the one that must be met.

¶52 Even more importantly, however, the trial court did not arbitrarily refuse to hear Kirsling’s petition based on an application of a standard. Rather, the court considered the merits of Kirsling’s petition. The court accepted as true that Kirsling moved to Stansbury Park after the entry of the Amended Decree, but it rejected his assertion that the court’s custody and parent-time orders were driven primarily by the fact that Kirsling lived in Taylorsville at the time of trial. The court expressed concern that Kirsling’s “stop in [Stansbury Park would] be . . . brief,” given Kirsling’s “migratory history.” The court also expressed concern that the move was motivated to create a change of circumstances to justify a modification of the Amended Decree. Thus, rather than reject Kirsling’s petition on the basis that a move by one parent fails to constitute a “substantial change in material circumstances,” the court considered its merits and determined why Kirsling’s move, under the relevant circumstances, did not warrant modification of the court’s order.

¶53 But even assuming the court’s order could be construed as having applied a “substantial change in material circumstances” standard, Kirsling’s argument would fail for lack of preservation. “To preserve an argument for appellate review, the appellant must first present the argument to the district court in such a way that the court has an opportunity to rule on it.” Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683 (quotation simplified). “We generally do not address unpreserved arguments raised for the first time on appeal.” Id.

¶54 Kirsling never alerted the court to his argument that his petition requested a type of modification that should be based on something less than a substantial and material change of circumstances. Instead, he practically invited the court to apply the heightened standard. Kirsling premised his petition on the occurrence of “[a] significant change in circumstances,” and in his briefing he referred to a move to a new community as an example of a “material and substantial change[]” justifying the modification of a custody award. These submissions— particularly the suggested standard—arguably invited the court to apply the standard about which Kirsling now complains. See Kerr v. City of Salt Lake, 2013 UT 75, ¶ 44, 322 P.3d 669 (stating that under the doctrine of invited error, “a litigant may not induce the trial court to make a ruling and then argue on appeal that the ruling was in error”). In any event, Kirsling did not preserve his argument that the court erred in applying the substantial change of circumstances standard rather than “a less strict” standard “for a change in parent time.” See Baumann v. Kroger Co., 2017 UT 80, ¶¶ 17–18 (deeming an argument unpreserved where the appellant did not argue for the more forgiving standard she advocated for on appeal and where she arguably invited the district court to apply the less forgiving standard). Thus, we will not now reverse the trial court’s denial of his petition to modify on that basis. See Gowe, 2015 UT App 105, ¶ 9.

B. Attorney Fees on Appeal

¶55 Both parties request an attorney fees award pursuant to rule 33 of the Utah Rules of Appellate Procedure. Rule 33 allows this court, if it determines that an appeal is “either frivolous or for delay,” to “award just damages, which may include . . . costs . . . and/or reasonable attorney fees, to the prevailing party.” Utah R. App. P. 33(a). “[P]arties seeking attorney fees under rule 33 face a high bar,” and the Utah Supreme Court has directed that such sanctions are warranted only in “egregious cases.” Porenta v. Porenta, 2017 UT 78, ¶ 51 (quotation simplified). We conclude that this case does not present an egregious case and therefore deny the parties’ requests for attorney fees.

CONCLUSION

¶56 In the First Appeal, we conclude that only two of the three issues that Kirsling argues on appeal were identified in his notice of appeal and are properly before this court. On the merits of those two issues, we conclude that Kirsling’s challenge to the trial court’s calculation of income fails and he has not shown that the trial court erred in denying his motion for a new trial based on his claim of newly discovered evidence. As for the Second Appeal, we conclude that the trial court did not err in denying Kirsling’s petition to modify the Amended Decree. Accordingly, we affirm the trial court’s decisions in both appeals.

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[1] We have consolidated Case No. 20150577-CA and Case No. 20160236-CA for purposes of this opinion.

[2] This child support worksheet is not part of the record on appeal.

[3] Rule 59(a) provided, in relevant part, that “a new trial may be granted to . . . any . . . part[y] and on all or part of the issues, for any of the following causes[:] . . . (a)(4) [n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; . . . (a)(6) [i]nsufficiency of the evidence to justify the verdict or other decision”; or “(a)(7) [e]rror in law.” Utah R. Civ. P. 59(a) (2014). Because rule 59 has been amended, we cite the version in effect at the time Kirsling filed his motion.

[4] Kirsling also cited rule 59(a)(3), making a related argument that he was surprised by Pulham’s assertion at trial that she had not received the settlement payment and that it was “not prudent to expect [him to] guard against” that assertion. While Kirsling briefly refers to rule 59(a)(3) in his statement of the issues on appeal, he makes no argument based on surprise and instead focuses this portion of his appeal on rule 59(a)(4) and his contention of newly discovered evidence. Accordingly, we do not address whether the trial court abused its discretion in not granting a new trial under rule 59(a)(3). See Wintle-Butts v. Career Service Review Office, 2013 UT App 187, ¶ 20, 307 P.3d 665 (refusing to consider an undeveloped and inadequately briefed issue).

[5] The parties seem to agree that Kirsling was trying to move from 40% overnights to 50% overnights.

[6] Substantively similar to Utah Rule of Appellate Procedure 3(d), the federal counterpart requires that a party designate in its notice of appeal “the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B); see also Drew v. Lee, 2011 UT 15, ¶ 16 & n.22, 250 P.3d 48 (indicating that where federal court procedural rules are substantively similar to Utah’s rules, we may look to interpretations of the federal rules for guidance and as persuasive authority).

[7] The same intent is also manifest in Kirsling’s petition to modify the Amended Decree, which he filed contemporaneously with his notice of appeal. In his motion, he advised the trial court that “[a] Notice of Appeal on three sections of the Decree of Divorce is being filed, but none of these sections pertain to or affect this Petition to Modify regarding parent time.” In his supporting affidavit, Kirsling further “emphasize[d] that none of the items that [he] . . . [n]oticed [for appeal] pertain to the issues” raised in his petition to modify the trial court’s determinations regarding parent-time.

[8] Despite the fact that the issues related to the ORS fees and the contempt charges are within our jurisdiction, Kirsling has not briefed on appeal any challenge to the trial court’s decisions on those issues. Consequently, we do not consider them further.

[9] This statutory provision was recently amended. We cite the version in effect when the trial court determined Kirsling’s child support obligation.

[10] In his motion for a new trial, Kirsling also argued that the child support order should have given him credit for other children in his home. The trial court rejected that argument. On appeal, Kirsling refers to these facts, but he does not present any related analysis supported by citations to the record and legal authority. See Utah R. App. P. 24(a)(9) (2016). He therefore has not carried his burden to show error in the court’s decision on this point.

[11] Kirsling purports to challenge the trial court’s calculation of the amounts he owed Pulham for past-due child support and child care expenses, asserting that the court erred “in determining the financial award” and “in denying the financial settlement or offsetting amounts owed to Pulham.” But because his related briefing focuses on the denial of his rule 59 motion and does not attempt to show other error in the Amended Decree’s calculation of the amounts Kirsling owed to Pulham, we construe his argument as pertaining solely to the court’s denial of the rule 59 motion.

[12] Kirsling points to this statement as evidence that the court applied the “substantial change in material circumstances” standard to foreclose modification. But this statement cannot be read in isolation. As we explain below, because the court actually reached the merits of Kirsling’s petition, we cannot agree that the court refused to reconsider its prior order based on an unmet threshold.

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2019 UT App 104 – Ross v. Ross – § 30-3-37 relocation

2019 UT App 104 – Ross v. Ross
THE UTAH COURT OF APPEALS

JESSECA RAE ROSS, Appellee,
v.
TIMOTHY RONALD ROSS,Appellant.

Opinion No. 20170916-CA
Filed June 13, 2019
Third District Court, Salt Lake Department
The Honorable Su Chon No. 154901171
Bastiaan K. Coebergh, Attorney for Appellant
Kyle Adams, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in whichJUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1        When they divorced, Jesseca Rae Ross (Mother) and Timothy Ronald Ross (Father) agreed to an arrangement under which they equally shared physical custody of their two minor children (the Children). After a time, Mother expressed a desire to relocate from Salt Lake County to Uintah County, and she wanted to take the Children with her. To effectuate this change, she filed a notice of relocation with the district court pursuant to Utah Code section 30-3-37, but did not file a separate petition to modify the joint custody provisions of the divorce decree. Father protested that no change in custody could be ordered in Mother’s favor in the absence of a petition to modify, but the district court disagreed. After holding a hearing, the court allowed Mother to relocate with the Children, and changed custody to make Mother the primary physical custodian. Father now appeals from that decision, asserting that the district court improperly ordered a change in custody without requiring Mother to file a petition to modify. We agree with Father’s argument, and therefore reverse the court’s order and remand the case for further proceedings consistent with this opinion.

BACKGROUND

¶2        After seven years of marriage, Mother and Father divorced, and stipulated to a decree that provided for joint legal custody and equally-shared physical custody of the Children. Less than a year after the decree was entered, Mother filed a notice of relocation, setting forth her intent, “due to her impending marriage,” to relocate to Lapoint, a small farming community in Uintah County, Utah. The notice also stated Mother’s intent to take the Children with her, and her belief that such a move was in the best interest of the Children, since she “provided the majority [of] care” for them. Mother did not separately file a petition to modify asking the court to change the custody provisions of the decree.

¶3        Father objected to Mother’s notice to relocate, arguing that the relocation would require the Children to leave their current school district, where they were “well adjusted and happy,” that he and Mother had equal custody of the Children according to the stipulated decree, and that the move would interfere with his access to, and parent-time with, the Children.

¶4 A hearing was held before a domestic relations commissioner, who heard argument from both sides and apparently considered the matter a close call. He lamented the fact that no petition to modify had been filed, stating that although he did not want to “put the parties through a . . . more expensive elaborate process than necessary,” he viewed this case as one “that just begs for having someone file a petition to modify to address this relocation,” and stated that he was not “comfortable that [he knew] the right answer” in the absence of the more formal process a petition to modify would provide. He also noted that the filing of a petition might have caused the parties and the court to “consider whether some kind of custody evaluation or mediation-based custody evaluation . . . might be useful in . . . coming up with the best solution.” At the conclusion of the hearing, and in the absence of a petition to modify or a custody evaluation, the commissioner recommended that Mother not be permitted to relocate the Children out of Salt Lake County on a permanent basis, but that the Children could go to Lapoint with Mother for the summer, during which time Father would have parent-time for one weekend each month.

¶5        Mother objected to the commissioner’s recommendation, and asked the district court to issue an order allowing the Children to relocate with her permanently. Father opposed that request, and the court held a two-day evidentiary hearing on the matter. At the close of Mother’s evidence, Father moved for a directed verdict, specifically raising the issue flagged by the commissioner, namely, that Mother had not filed a petition to modify and therefore was not entitled to a change in custody. The court denied the motion for a directed verdict, and at the conclusion of the hearing took the matter under advisement.

¶6        A few weeks later, the district court issued a written decision on Mother’s objection. Therein, the court noted that, “[o]rdinarily, a petition to modify is required to change the custody arrangements” at issue, and acknowledged that granting Mother’s relocation would alter the current physical custody arrangement. However, the court explained that the arrangement would change “regardless” because the commissioner’s recommendation effectively awarded custody to Father, and determined “that no petition to modify is required with a notice of relocation.” The court then proceeded to apply a “best interest” analysis with regard to the relocation, and concluded that relocation would be in the best interest of the Children. Accordingly, the court overruled the commissioner’s recommendation, allowed Mother to relocate to Lapoint with the Children, and ordered a change of custody making Mother the primary physical custodian and awarded Father parent-time pursuant to the relocation statute.

¶7        Thereafter, Father filed a motion for a new trial and a motion to amend findings based on allegedly newly discovered evidence, insufficiency of the evidence, and the verdict being contrary to law. The court denied Father’s motions, finding that the allegedly new evidence was available before the evidentiary hearing, that the evidence presented at trial had been sufficient, and that its ruling complied with the requirements of the relevant statutes.

ISSUE AND STANDARD OF REVIEW

¶8        Father now appeals both the district court’s original order allowing the relocation and changing custody, as well as the court’s subsequent order denying his motions for a new trial and to amend findings. Father asks us to consider three issues, but because of our resolution of the first, we need not consider the other two.[1] Father’s first argument raises the issue of the propriety of ordering a change in custody in favor of a relocating parent in the absence of a petition to modify. That question involves the interpretation of various statutes and one procedural rule. “The applicability of a particular rule or statute is a question of law reviewed for correctness.” Gullickson v. Gullickson, 2013 UT App 83, ¶ 16, 301 P.3d 1011. “A [district] court’s interpretation of a statute is a question of law that we review for correctness.” Donnelly v. Donnelly, 2013 UT App 84, ¶ 11, 301 P.3d 6 (quotation simplified). And a “district court’s interpretations of rules of procedure are questions of law reviewed for correctness.” Simler v. Chilel, 2016 UT 23, ¶ 9, 379 P.3d 1195 (quotation simplified).

ANALYSIS

¶9        In this case, we must consider whether, under applicable statutes and rules, a district court may order a change in custody in favor of a relocating parent in the absence of a petition to modify. Father asserts that a district court is not authorized to take such action and, after examination of the relevant provisions, we agree.

¶10      Our procedures for interpreting statutes and rules are the same: “[W]e do so according to our general rules of statutory construction.” Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035. We interpret the relevant provisions according to their plain language, “seek[ing] to give effect to the intent of the body” that enacted the statute or promulgated the rule, Burns v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370, and we read the language “in light of its linguistic, structural, and statutory context,” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465.

¶11 Here, we start our analysis with two provisions that generally require the filing of a petition to modify before allowing changes to divorce decrees. First, rule 106(a) of the Utah Rules of Civil Procedure states generally that, “[e]xcept as provided in Utah Code Section 30-3-37, proceedings to modify a divorce decree or other final domestic relations order shall be commenced by filing a petition to modify.” Second, Utah Code section 30-3-10.4(1) states specifically that, “[o]n the petition of one or both of the parents, . . . the court may, after a hearing, modify or terminate an order that established joint legal or physical custody” if certain conditions are met. Utah Code Ann. § 30-3-10.4(1) (LexisNexis Supp. 2018). Thus, rule 106 establishes a general rule—subject to an important exception, discussed below—that any changes to divorce decrees must be brought about by the filing of a petition to modify, and section 10.4 makes clear that this rule applies specifically in the context of modifying decrees that provide for joint custody.

¶12 Mother points out, however, that the exception set forth in rule 106 expressly references the relocation statute, and allows a district court to alter custody orders in the relocation context even in the absence of a petition to modify.[2] See Utah R. Civ. P. 106(a) (stating that, “[e]xcept as provided in” the relocation statute, modifications require a petition). We acknowledge Mother’s point that rule 106 refers to the relocation statute and allows exceptions to the petition requirement in relocation cases, at least to the extent that the relocation statute permits modification. But we do not read rule 106 as providing a blanket exception for all modifications that might be sought in the relocation context.

¶13 The language “[e]xcept as provided” signals a limited exception to the petition requirement. See id. To be sure, the drafters of the rules could have stated that petitions to modify are required “except in cases in which relocation is sought.” Such language would have made clear that, in relocation cases, a court could modify divorce decrees in any manner, even without a petition to modify. But the drafters did not use such language; instead, they included a simple reference to the relocation statute, signaling an intent to incorporate into rule 106 whatever exceptions that statute allows. Indeed, at oral argument, Mother’s counsel acknowledged that, even in the relocation context, a party seeking to modify alimony or child support would need to file a petition to modify, since the relocation statute makes no mention of alimony or child support. Thus, a court may not simply ignore rule 106’s petition requirement any time section 30-3-37 is invoked; rather, a court may modify a decree without a petition only in instances in which section 30-3­37 allows such modification.

¶14      And section 30-3-37 contemplates modification of divorce decrees in only three particular instances: (a) it allows modification of parent-time arrangements in cases where a custodial parent is allowed to relocate with a child, see Utah Code Ann. § 30-3-37(5)–(11) (LexisNexis Supp. 2018); (b) it allows assessment of transportation costs, see id. § 30-3-37(12); and (c) it allows modification of custody—but only in favor of the non-relocating party—in cases in which the court decides not to allow the children to relocate with the relocating party, see id. § 30-3-37(4). Only subsection (4) addresses a change of custody (as opposed to parent-time),[3] providing:

In a hearing to review the notice of relocation, the court shall, in determining if the relocation of a custodial parent is in the best interest of the child, consider any other factors that the court considers relevant to the determination. If the court determines that relocation is not in the best interest of the child, and the custodial parent relocates, the court may order a change of custody.

Id. (emphasis added).

¶15      The relocation statute thus authorizes a change of custody only if two events occur: (1) the court “determines that relocation is not in the best interest of the child,” thus denying the relocating parent’s request for the children to relocate; and (2) the custodial parent decides to relocate—alone—in spite of the court’s ruling. Id.; see also Pingree v. Pingree, 2015 UT App 302, ¶¶ 12–13, 365 P.3d 713 (noting that, “if a court determines that relocation is not in a child’s best interest, it then has authority to order a change in custody if a custodial parent chooses to relocate,” and that “a conditional change of custody ordered under section 30-3-37(4) is triggered only if . . . a custodial parent elects to relocate despite a court’s finding that relocation would not be in the child’s best interest”). Only then is the court authorized to order a change of custody under section 30-3-37. The relocation statute does not contemplate changes in custody (as opposed to parent-time) outside that context, and therefore if a change in custody is sought in a different context, rule 106 (as well as, in some cases, section 30-3-10.4) requires the filing of a petition to modify.

¶16      Thus, we read rule 106 and the relocation statute together to require that a petition to modify be filed in all cases in which a grant of the relocation request will necessitate a change in custody in favor of the relocating party. In a situation in which a parent enjoys “sole” (as opposed to “joint”) physical custody, and wishes to relocate with a child, no change in custody will be required in the event the relocation request is granted. That parent will have sole physical custody prior to the request, and (if granted) that parent will have sole physical custody after the relocation. In that situation, the court need only consider appropriate modifications to the parties’ parent-time schedule.[4]

¶17      The situation is different, however, where the parent who seeks to relocate does not already have sole physical custody, but wishes to attain sole physical custody upon relocation.[5]

 

Because “relocation” is defined as “moving 150 miles or more from the residence of the other parent,” see Utah Code Ann. § 30­3-37(1), joint physical custody is very difficult to practicably maintain in the wake of one parent’s relocation. These practical realities mean that a parent who relocates with a child will usually need to be awarded sole (as opposed to joint) physical custody. And if that parent does not already enjoy sole physical custody, that parent will need to seek a modification of the existing custody arrangement in order to facilitate well-ordered relocation, because rule 106 requires the filing of a petition for any modification, and the relocation statute does not provide an exception in that particular situation.

¶18 In this case, Mother did not have sole physical custody prior to seeking relocation. As noted above, the parties shared physical custody equally. Moreover, Mother did not claim that her situation presented one of the presumably rare situations in which a joint custody arrangement could be continued even after she moved more than 150 miles away from Father; that is, the success of Mother’s relocation request—at least insofar as she would be able to take the Children with her—depended upon Mother being awarded sole physical custody. In this situation, the relocation statute does not contemplate a change in custody without a petition to modify, and therefore rule 106’s petition requirement applies with full force.[6]

CONCLUSION

¶19 Mother needed to file a petition to modify in order to effectuate the change of custody in her favor that was, as a practical matter, essential to her relocation request. The relocation statute does not contemplate such a change of custody, and therefore the exception to rule 106’s petition requirement does not cover this situation. Because Mother did not file a petition to modify, the district court erred in ordering a change of custody in favor of Mother without one. Accordingly, we vacate the district court’s custody order and remand this case for further proceedings consistent with this opinion.

¶20      On remand, one of the parents (or both) will need to file a petition to modify to address the custody situation. It will be up to the district court, on remand, to determine whether the Children will remain in Lapoint pending adjudication of the petition(s) to modify. In making that determination, and in ruling upon the merits of the petition(s) to modify, the court should consider the present circumstances of the parties and the Children and not simply re-litigate the issues as they were at the time of the now-vacated custody order, bearing in mind its duties to “ensure that a child’s best interests will be met before transferring custody” and “to provide stability to children by protecting them from ‘ping-pong’ custody awards.” Chaparro v. Torero, 2018 UT App 181, ¶¶ 39–40, 436 P.3d 339 (quotation simplified).

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] Father’s other two arguments are: (1) that the district court’s relocation decision, on its merits, was against the clear weight of the evidence presented and/or supported by insufficient evidence; and (2) that the court ignored newly discovered relevant evidence when it denied his motion for a new trial. In light of our determination that a change in custody in Mother’s favor was not permitted in the absence of a petition to modify, and our resolution vacating the district court’s custody order and remanding for further proceedings, we need not reach the merits of Father’s additional arguments.

[2] Section 10.4 contains no such exception, and it could be argued that section 10.4 eclipses rule 106’s relocation exception in instances where a relocating party seeks to alter a joint custody order. We do not address this argument further, however, because Father does not expressly make it, and because—as we explain herein—even if section 10.4 is somehow construed (like rule 106) to contain such exceptions as are permitted by the relocation statute, those exceptions do not benefit Mother here.

[3] Custody and parent-time are conceptually distinct. See Jones v. Jones, 2016 UT App 94, ¶ 10, 374 P.3d 45 (stating that, “while altering custody orders generally requires a showing of substantial change in circumstances material to the modification of custody, a lesser showing may be required when the change sought is not a change of custody,” and holding that “there was no error in the district court’s failure to require a substantial or material change of circumstances” when modifying parent-time (quotation simplified)); see also Erickson v. Erickson, 2018 UT App 184, ¶ 16, 437 P.3d 370 (“A material change of circumstances with respect to parent-time is thus a different inquiry from whether there was a material change with respect to custody.” (quotation simplified)).

[4] Although the relocation statute does not expressly cover a situation in which a noncustodial parent seeks leave to relocate, see Utah Code Ann. § 30-3-37(4) (speaking only in terms of “determining if the relocation of a custodial parent is in the best interest of the child” (emphasis added)), for obvious reasons no change in custody would be required if a noncustodial parent relocates and does not seek a change in custody status associated with that relocation. Whether a petition to modify would be required in this context—given that the relocation statute does not specifically speak to this situation, and that rule 106’s exception is limited to situations covered by the relocation statute—to address requested changes to the parent-time arrangement is a question we leave for another day.

[5] According to statutory definition, “joint physical custody” occurs when a “child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support.” See Utah Code Ann. § 30-3-10.1(3)(a). Thus, any parent who enjoys less than 70% of overnights has something short of sole physical custody, and would almost certainly need to seek a change in the custody arrangement in order to relocate with a child.

[6] By contrast, the relocation statute (and rule 106’s exceptional reference to it) would have allowed the district court to order a change of custody in favor of Father, even without a petition to modify, in the event that it had denied Mother’s relocation request and Mother had decided to relocate anyway. See Utah Code Ann. § 30-3-37(4); Utah R. Civ. P. 106(a).

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LeFevre v. Mackelprang – 2019 UT App 42 – joint custody analysis

2019 UT App 42 – THE UTAH COURT OF APPEALS – LeFevre v. Mackelprang

AMELIA GAYATREE LEFEVRE,
Appellee,
v.
CASEY LEE MACKELPRANG,
Appellant.

Opinion No. 20171006-CA
Filed March 28, 2019

Sixth District Court, Panguitch Department
The Honorable Paul D. Lyman No. 154600028

Van Mackelprang and Julie J. Nelson, Attorneys for Appellant
Douglas L. Neeley, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY concurred.

HARRIS, Judge:

¶1 Casey Lee Mackelprang (Father) asked the trial court to modify the governing divorce decree (the Decree) to install him as the primary custodial parent or, at least, change the parenttime schedule to increase the number of nights his daughter (Child) spent at his house. After a trial, the court denied his request, and in addition ordered him to pay the full cost of a custody evaluation. Father now asks us to review the trial court’s conclusions, and we agree with Father that those conclusions were infirm. Accordingly, we vacate the trial court’s order and remand the case for further proceedings.

BACKGROUND

¶2 After nearly six years of marriage, Father and Amelia Gayatree LeFevre (Mother) divorced in August 2014. They had one child—Child—together, who was five years old at the time of the parties’ divorce.

¶3 For the first few years of their marriage, the couple lived in Cedar City, Utah with Child, who had some medical issues and required extra attention. According to Mother, she provided nearly all care for Child during this time period, even though she was taking classes at a university, and even though Father was not employed full-time. She maintained that Father often refused to help with child care, and when she needed someone to care for Child so that she could attend classes, she found it necessary to call upon her sister, her parents, and even a few friends, because Father was unwilling to do so himself. By the time Child was three, Father had never spent a night alone with Child and was not comfortable doing so.

¶4 Mother and Father separated in April 2012. At that point, both Mother and Father left Cedar City to live with family: Mother and Child moved to Boulder, Utah, and Father moved to Kanab, Utah. A few months later, however, in the late summer of 2012, Mother returned to Cedar City to begin work on a master’s degree. Father also soon returned to Cedar City, but the parties lived in separate residences. At that point, while Mother continued to act as Child’s primary caregiver, the parties worked out an informal parent-time arrangement in which Mother would take Child over to see Father on occasion but, because Father was still not entirely comfortable with caring for Child on his own, Mother was often present during these visits. Most of these visits were daytime visits for a few hours, although Father did care for Child overnight on a handful of occasions.

¶5          Mother filed for divorce in August 2012 and, in September 2013, the parties entered into a stipulated settlement agreement that designated Mother as Child’s primary physical custodian. The agreement ordered parent-time for Father every other weekend and every other Wednesday evening, a schedule that (although it did not mention the statute) was similar to the one set forth in Utah Code section 30-3-35. Nearly a year later, in August 2014, the trial court signed the Decree, incorporating the parties’ agreed-upon custody and parent-time arrangement.

¶6 During this period, Father and Mother each lived in Cedar City during the week, but on most weekends Mother traveled to Boulder to visit family and to work. Mother always took Child with her to Boulder for the weekends, even on the alternating weekends on which Father would have otherwise been entitled to parent-time, and at the time Father voiced no objection. Father also was not in the habit of exercising the regular mid-week visits to which he was entitled, instead depending on Mother to bring Child over to his house for many short weekday visits as her class schedule allowed. And Father did not exercise his right to a multi-week summertime visit in 2014, even though the stipulation entitled him to do so.

¶7 After nearly three years in Cedar City, Mother and Child moved back to Boulder in April 2015, and at this point Father began to regularly exercise the weekend parent-time and the multi-week summertime visits to which the Decree entitled him. Although Father did not exercise his mid-week visits due to the distance between Cedar City and Boulder, he began to make significant efforts to travel to Boulder to participate in important events in Child’s life, such as school programs and dance competitions, even when such events did not occur during his weekend. After a while, Father was of the view that things were going so well with his parent-time that he asked Mother if she would agree to increasing the number of overnights he had with Child, but Mother did not agree.

¶8 In November 2015, Father filed a petition to modify the Decree, requesting that the court alter the custody arrangement to designate him, rather than Mother, as the primary physical custodian. In the petition, among other things, Father argued that a modification was warranted because Mother’s move to Boulder in April 2015 constituted a substantial and material change in circumstances because Father was no longer able to see Child as often as he had when Mother was living in Cedar City. Father also argued that Mother was not spending a substantial amount of her parent-time with Child because she was working two jobs that required her to leave Child in the primary care of Child’s maternal grandmother. Mother opposed Father’s petition, and eventually filed a counter-petition requesting that the Decree be modified to remove redundant material, clarify issues, and make minor alterations to the parent-time schedule.

¶9 In November 2016, while the competing petitions were pending, Mother notified Father that she intended to relocate with Child to Las Vegas, Nevada. Mother proposed that the parties continue to follow the parent-time schedule set forth in the Decree until her move, at which point they should adopt the parent-time schedule found in Utah Code section 30-3-37(6). Father opposed Mother’s request, and asked the court to hold a hearing to consider Mother’s proposed move. Father also asked the court to appoint a custody evaluator to assess the parties’ situation, a request Mother opposed on the ground that no such evaluation was necessary. Mother argued, in the alternative, that if the court did appoint an evaluator, it should order Father to pay all costs associated with the evaluation.

¶10 In early February 2017, Mother and Child relocated to Las Vegas. Shortly thereafter, the court appointed a custody evaluator (Evaluator) and ordered Father to front the costs associated with the appointment, but stated that it would make a final allocation of costs at a later date. The court also postponed any hearing on Mother’s relocation to Las Vegas until after the completion of the custody evaluation. Around this same time, in early 2017, in addition to regularly exercising his weekend and summertime parent-time—which he had been doing since April 2015—Father began to travel to Las Vegas once a week to exercise regular mid-week parent-time with Child.

¶11 Over the next few months, Evaluator conducted a number of interviews with Father, Mother, and Child, as well as home studies during which she observed Child. On November 1, 2017, Evaluator issued her report, in which she recommended—with one important qualification—that the status quo should continue, with Mother acting as the primary residential parent and with Father exercising parent-time on alternating weekends and Wednesdays during the school year. The important qualification was that, if Father were to move to Las Vegas so as to be geographically closer to Mother and Child, she would alter her recommendation and urge the court to adopt the alternative parent-time schedule specified in Utah Code section 30-3-35.1 (section 35.1), which would result in Father having the right to five overnights (instead of two) in every two-week period.

¶12 After learning of Evaluator’s recommendations, Father almost immediately moved to Las Vegas.[1] Just a few weeks later, in mid-November 2017, the court held a trial on the competing petitions to modify. Evaluator testified about her report and evaluation, and recommended that, because Father had relocated to Las Vegas, the court should implement a custody and parent-time arrangement based on section 35.1. She opined that adopting section 35.1 would have a positive impact on Child and the proposed schedule would not hurt the bond Child has with Mother, but would strengthen the bond Child has with Father by providing Child an opportunity to develop a structure and routine with him during the additional mid-week and weekend overnights. Evaluator further opined that the proposed schedule would help reduce communication problems the parties had been experiencing under the current schedule because drop-offs during the school year would occur at school. She also offered her observation that Father was a good parent who since April 2015 had made significant efforts to spend quality time with Child, and opined that Father’s parenting actions over the past two-and-a-half years were more relevant than his actions during the first six years of Child’s life.

¶13 Evaluator also recommended that Father’s summertime parent-time should occur in one large block to reduce both the number of transitions between the parents as well as the amount of time Child spends in the car traveling back and forth from Las Vegas to Utah. Finally, in an effort to reduce the frequency of Father’s requests for virtual parent-time, Evaluator recommended that Father’s video or phone chats with Child should be held at scheduled times three days per week, and that the parties’ email communications regarding Child be restricted to a particular day per week to facilitate more predictable and reliable communication.

¶14 At the conclusion of the trial, and after hearing directly from both Father and Mother, the trial court took the matter under advisement. A few days later, the court issued a written ruling on the petitions to modify, making a few changes to the parties’ Decree. Among other alterations, the court ordered that Father’s summertime parent-time be exercised in one large block and that Father exercise virtual parent-time only during three half-hour periods scheduled during the week. The court denied all of Father’s other requests to alter the custody and parent-time schedule, including Father’s request that parent-time during the school year be implemented according to section 35.1.

¶15 On that point, the court determined that the four prerequisites for implementation of the section 35.1 schedule were not met, and made factual findings in support of that conclusion, including the following: that Father “did not participate actively in [Child’s] life until the last couple of years”; that Father’s “plan to accomplish effective communication is to have a designated email answering day per week” and that Father’s “plan . . . does not appear to be adequate”; and that Father “presented no evidence other than his hope” that increased parent-time would be in Child’s best interest. From these findings, the court made legal conclusions that Father “has not adequately been involved in [Child’s] life”; that Father “has failed to present a plan to accomplish effective communication”; and that Father “has failed to present evidence that it will be in [Child’s] best interest to have increased overnight visits.” Because it considered the statutory prerequisites unsatisfied, the trial court declined Father’s invitation to award him additional parent-time under section 35.1.

¶16 The court also ordered Father to pay all costs related to Evaluator’s report. Although it did not provide reasons for its decision, it did note that Father “asked for the child custody evaluation with the hope that somehow it would find in his favor and it did not, so he should pay its entire cost.”

ISSUES AND STANDARDS OF REVIEW

¶17 Father now appeals the trial court’s ruling on his petition to modify, and asks us to review two aspects of that ruling. Father’s main complaint is with the court’s decision not to implement a parent-time arrangement based on section 35.1. We review a trial court’s custody and parent-time determination for abuse of discretion, and review any underlying factual findings for clear error. See Vaughan v. Romander, 2015 UT App 244, ¶¶ 7– 8, 360 P.3d 761. “A finding is clearly erroneous only if the finding is without adequate evidentiary support or induced by an erroneous view of the law.” Hale v. Big H Const., Inc., 2012 UT App 283, ¶ 9, 288 P.3d 1046 (quotation simplified).

¶18 Second, Father argues that the trial court abused its discretion in ordering him to pay the entire cost of the custody evaluation. When reviewing a court’s decision to allocate costs pursuant to Utah Code section 30-3-3, “we use an abuse of discretion standard.” Peterson v. Peterson, 818 P.2d 1305, 1310 (Utah Ct. App. 1991).

ANALYSIS

I

¶19 The main issue presented on appeal is whether the trial court erred by concluding that the statutory prerequisites set forth in Utah Code section 30-3-35.1(2) were not met. We find infirmities in the trial court’s conclusions, and therefore determine that remand is necessary.

¶20 “In all custody determinations, the [trial] court’s primary focus must be on the best interests of the child.” Pingree v. Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (quotation simplified). Our legislature has determined that each divorced parent “is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests.” Utah Code Ann. § 30-3-32(2)(b)(ii) (LexisNexis Supp. 2018). Relevant statutes prescribe a default minimum parent-time schedule “to which the noncustodial parent and the child shall be entitled,” id. § 30-3-35(2), unless either (a) “the court determines that Section 30-3-35.1 should apply” or (b) a parent can establish “that more or less parenttime should be awarded,” id. § 30-3-34(2). Under the default minimum parent-time schedule set forth in section 30-3-35, “the noncustodial parent is entitled to parent-time with the child during one weekday evening and on alternating weekends, which include Friday and Saturday overnights.” Lay v. Lay, 2018 UT App 137, ¶ 6, 427 P.3d 1221. This default statutory schedule affords the noncustodial parent two overnights in a typical twoweek period, and approximately ninety overnights during a typical calendar year (after holiday and summertime parent-time are accounted for).

¶21 As noted above, section 35.1 “provides an alternative statutory parent-time schedule” that—by extending weekend overnights by one night, and affording one weeknight overnight each week—offers the noncustodial parent the opportunity to enjoy five overnights in every two-week period, resulting in approximately 145 overnights in a typical calendar year See id. ¶ 7; see also Utah Code Ann. § 30-3-35.1(1)(a) (stating that the alternative schedule “is 145 overnights”).

¶22 A trial court may implement the alternative section 35.1 schedule only if “the parties agree or the noncustodial parent can demonstrate” the presence of at least four[2] factual circumstances: (a) that “the noncustodial parent has been actively involved in the child’s life”; (b) that either (i) “the parties are able to communicate effectively regarding the child,” or (ii) “the noncustodial parent has a plan to accomplish effective communications regarding the child”; (c) that “the noncustodial parent has the ability to facilitate the increased parent-time”; and (d) that “the increased parent-time would be in the best interest of the child.” Utah Code Ann. § 30-3-35.1(2). If all four of these elements are present, then the trial court may—but is not required to—implement the parent-time schedule set forth in section 35.1. See id. (stating that “the court may consider” the alternative schedule if the required factual elements are present); see also Lay, 2018 UT App 137, ¶ 13 (stating that “the noncustodial parent’s demonstration of the enumerated factors gives the court the discretion to consider the increased parenttime schedule, but there is no language in the statute making the court’s consideration of that schedule—much less its adoption— mandatory”).

¶23 In this case, the trial court determined that three of the four statutory prerequisites were not present, and therefore decided not to alter the parties’ parent-time arrangement to afford Father additional parent-time.[3]  Father argues that the trial court’s determination is incorrect, and that all of the necessary prerequisites were in fact present on the facts presented at trial. In the discussion that follows, we examine each of the three remaining statutory prerequisites and, for the reasons set forth, we agree with Father that the trial court’s analysis was infirm.

A

¶24 The first of the three statutory requirements is that “the noncustodial parent has been actively involved in the child’s life.” Utah Code Ann. § 30-3-35.1(2)(a) (LexisNexis Supp. 2018). Father contends that he presented evidence conclusively demonstrating his active involvement in Child’s life. We agree.

¶25 At the outset of the discussion, it is important to note that the trial court did not actually make a finding or a conclusion to the contrary. The court’s specific finding was that Father “did not participate actively in [Child’s] life until the last couple of years,” implying that Father did participate actively in Child’s life during the “couple of years” prior to trial. (Emphasis added.) Indeed, the evidence presented to the court was overwhelming that, starting in approximately April 2015, Father exercised regular weekend and summertime parent-time according to the ordered schedule, and that he made extra effort as necessary to attend Child’s school functions and other celebrations in her life, even when those occurred outside his customary scheduled parent-time.

¶26 From this evidence, however, the trial court concluded that Father “has not adequately been involved in” Child’s life. In our view, this conclusion is not supported by the evidence presented, and is in any event not the conclusion required by the statute. Indeed, the word “adequately” does not appear in the statute, which instead asks the court to determine whether Father has been “actively” involved in Child’s life. See id. As noted above, at least for the thirty months prior to trial, Father was actively involved in Child’s life, as the trial court impliedly found.[4]

¶27 The only sensible explanation for the trial court’s conclusion is that the court was looking primarily at Father’s actions during the first six years of Child’s life, a period in which Father was not nearly as involved in Child’s life as he was during the thirty months leading up to trial. The relevant statute does not indicate whether a court should weigh recent behavior more heavily, and we certainly acknowledge that a parent who—in true “deathbed repentance” fashion—has been active in his child’s life for only a few days or weeks before trial may comfortably be considered to have not been actively involved in his or her child’s life, when that life is examined as a whole. But a parent who has—even in the eyes of his ex-spouse—been actively involved in his daughter’s life for the thirty-month period leading up to trial has clearly been “actively involved” in her life, and any finding or conclusion to the contrary is clearly erroneous and an abuse of discretion.

¶28 Accordingly, we agree with Father that he satisfied the first statutory prerequisite.

B

¶29 Next, the statute requires that Father demonstrate either (i) that “the parties are able to communicate effectively regarding the child,” or (ii) that he “has a plan to accomplish effective communications regarding the child.” Utah Code Ann. § 30-3-35.1(2)(b) (LexisNexis Supp. 2018). The trial court found that “[t]here is little meaningful communication between the parties,” and concluded that “[t]he parties do not communicate effectively.” Father does not challenge these determinations, and thereby concedes that he cannot meet the first statutory alternative. However, Father asserts that he presented a plan to address the parties’ communication issues, and argues that he can therefore meet the second statutory alternative. We agree.

¶30 The relevant statute requires only that Father present a plan for improved communication to the court; it does not require that Father’s plan be foolproof or even that Father’s plan—or any part of it—be adopted by the court. The statutory language requires only that the parent present a “plan to accomplish effective communication,” see id. § 30-3-35.1(2)(b), and Father did so here.

¶31 At trial, Father adopted and advocated for the communication plan recommended by Evaluator, which included several features designed to address the communication problems that the parties were experiencing. Among those were (a) limiting email communication between the parties to a “designated email day” on which both parents would be available to electronically express and respond to concerns regarding Child; (b) limiting Father’s virtual parenttime to three designated half-hour periods scheduled throughout the week, thereby limiting any ad hoc demands Father might make to speak with Child; and (c) maximizing the number of pickups and drop-offs that would occur at Child’s school rather than at Mother’s residence, thereby reducing the number of times Mother and Father saw each other.

¶32 The trial court ended up adopting one of these three recommendations in its ruling, in that it limited Father’s virtual parent-time to three scheduled half-hour periods each week. The court did not adopt the other two parts of this plan, perhaps in part because Mother expressed dislike for the “designated email day” idea, but the fact that the court declined to adopt Father’s plan in total does not mean that he did not have one. Indeed, the trial court itself referred to “[Father’s] plan” in its findings, later judging that plan to be inadequate. But an inadequate plan is still a plan, and the statute imposes no requirement that the plan be found by the court to be adequate. See id.

¶33 Under these circumstances, the trial court abused its discretion by concluding that Father “failed to present a plan to accomplish effective communication.” Father presented a plan for improved communication to the trial court, and thereby satisfied the second statutory prerequisite.

C

¶34 Finally, the statute requires that implementation of the alternative parent-time schedule would be “in the best interest of the child.” Utah Code Ann. § 30-3-35.1(2)(d) (LexisNexis Supp. 2018). Ordinarily, we afford a high degree of deference to a trial court’s “best interest” determination. See Vaughan v. Romander, 2015 UT App 244, ¶ 8, 360 P.3d 761 (stating that a trial court “has the discretion to establish parent-time in the best interests of the children,” and that a trial court’s “parent-time order” is reviewed for abuse of discretion (quotation simplified)). But here, the trial court did not engage in a traditional “best interest” analysis by weighing the evidence presented by each side and coming to a decision. Instead, the trial court stated flatly that Father had “presented no evidence other than his hope” that increased parent-time would benefit Child, and concluded that Father “failed to present evidence that it will be in [Child’s] best interest to have increased overnight visits.”

¶35 These statements are simply incorrect. Father presented quite a bit of evidence supporting his view that increased parenttime would be in Child’s best interest. Most significantly, Father presented the expert testimony of Evaluator, who offered her reasoned professional opinion that the best thing for Child— now that Father had relocated to Las Vegas and was closer to Mother and Child—would be for the court to implement the alternative parent-time schedule set forth in section 35.1. In addition, Father offered his own testimony along those same lines, and even cajoled Mother into acknowledging that Father was “a good father” and that she was in favor of Father and Child spending more time together (with the proviso that she preferred that the extra parent-time take place in the summertime, to cut down on the number of exchanges during the school year).

¶36 The trial court was certainly free to decline to credit Father’s evidence, and to give it less weight than Mother’s evidence.[5] Had it done so here, and articulated supported reasons for its decision, we undoubtedly would have affirmed that determination. But a trial court is not free to completely ignore a litigant’s evidence by making a “finding” that there is no such evidence when in fact there is.

¶37 Under these unique circumstances, we are not yet able to determine whether Father can (or cannot) satisfy the fourth statutory prerequisite. But the trial court’s stated reasons for rejecting Father’s position are unsupported, and are clearly erroneous and an abuse of discretion. We therefore must remand the case for further proceedings on this point, and specifically for the trial court to consider all of the evidence presented and to make a determination as to whether increased parent-time as per section 35.1 would be in Child’s best interest. Because all of the other prerequisites are met, if the trial court finds, on remand, that the “best interest” prerequisite is also met, the trial court will then be permitted to exercise its discretion, if it so chooses, to implement the alternative parent-time schedule. See Utah Code Ann. § 30-3-35.1(2) (stating that, if the statutory prerequisites are met, the court “may consider” the increased parent-time schedule); see also Lay v. Lay, 2018 UT App 137, ¶ 13, 427 P.3d 1221. (stating that, even where all of the statutory prerequisites are met, a trial court is not required to implement the alternative schedule, but may do so in its discretion).

II

¶38 The second issue Father raises on appeal is whether the trial court abused its discretion in ordering him to pay the entire cost of Evaluator’s report. In a case like this one, in which one party brings an action to establish an order of custody or parenttime, the trial court is statutorily authorized to make an award of costs. See Utah Code Ann. § 30-3-3(1) (LexisNexis 2013) (stating that “in any action to establish an order of custody [or] parenttime, . . . the court may order a party to pay the costs, . . . including expert witness fees, of the other party to enable the other party to prosecute or defend the action”). We have previously recognized that the relevant statute “is worded so as to afford divorce litigants a broader award of reimbursement, if need be, for the expenses of litigation, than those reimbursements authorized in other civil cases” in which costs are allocated according to who prevailed. Peterson v. Peterson, 818 P.2d 1305, 1310 (Utah Ct. App. 1991) (quotation simplified).[6]  This rule is particularly appropriate in family law cases where many of the costs, including the cost of custody evaluations, relate to the best interests of the child and enable the court to make a reasoned determination on these important issues. See id.

¶39 While section 30-3-3(1) “empowers a court to use its sound discretion in determining whether to award costs based on need and ability to pay,” id., “the award or denial of such fees must be based on evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees,” Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998) (quotation simplified). “Failure to consider these factors is grounds for reversal on the fee issue.” Id.

¶40 Here, the trial court ordered each party to pay their own attorney fees and costs, but ordered Father to pay the entire cost of the custody evaluation. However, there is no indication in the court’s order that it considered the factors identified in Wilde, see id., including the parties’ financial ability to pay; indeed, the court gave no reasons at all for its decision to require Father to pay the entire cost of Evaluator’s report, other than to note that Father “asked for the child custody evaluation with the hope that somehow it would find in his favor and it did not, so he should pay its entire cost.”[7]

¶41 This conclusion is both inaccurate and contrary to the governing statute. Although Evaluator did not recommend that primary physical custody be changed from Mother to Father, Evaluator did recommend that Father be awarded additional parent-time if he moved to Las Vegas, which he did prior to trial. Accordingly, Evaluator’s recommendation at trial was that a parent-time schedule in accordance with section 35.1 should be implemented, which recommendation was in line with Father’s ultimate request at trial. In addition, the court’s conclusion that Father should pay the entire cost of the custody evaluation because the evaluation did not “find in his favor” is inconsistent with a proper subsection (1) analysis. As discussed above, while subsection (1) gives the trial court discretion in determining whether to award the costs of expert witness fees, an award of such fees must be based upon the parties’ ability to pay and the reasonableness of the fees, and not upon which party ultimately prevails. See Utah Code Ann. § 30-3-3(1); Wilde, 969 P.2d at 444. But instead of applying these factors, see Wilde, 969 P.2d at 444, the trial court appears to have erroneously allocated the cost of the custody evaluation by applying the “substantially prevailed” standard found in subsection (2), which is applicable only in actions to enforce—but not to establish—custody or parent-time arrangements, see Utah Code Ann. § 30-3-3(2).

¶42 Here, there is no indication that the trial court considered the appropriate factors. The absence of any such findings prevents a meaningful review of the trial court’s ruling, and we therefore remand the issue for further analysis. See Wilde, 969 P.2d at 444 (remanding the issue of fees and costs for reconsideration in light of the trial court’s failure to consider the needs of the parties and their ability to pay).

CONCLUSION

¶43 The trial court incorrectly—and prematurely—concluded that the statutory prerequisites to considering the section 35.1 parent-time schedule were not met in this case. The first three statutory prerequisites were in fact met, and the trial court’s ruling to the contrary was clearly erroneous. Also, the court incorrectly found that Father had submitted “no evidence” in his favor with regard to the fourth prerequisite. In addition, the trial court’s decision to order Father to pay all costs associated with Evaluator’s report appears to have been grounded in an inaccurate factual assumption as well as made pursuant to the incorrect statutory subsection. The trial court’s ruling with regard to parent-time and costs is hereby vacated, and this matter is remanded for further proceedings consistent with this opinion.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] Neither party contests the trial court’s continuing exercise of jurisdiction over this case, even after both parties relocated to Nevada. See Utah Code Ann. §§ 78B-13-201(1), 202, 207 (LexisNexis 2018); see also In re S.W., 2017 UT 37, ¶ 10, 424 P.3d 7 (noting that a court that originally has exclusive and continuing jurisdiction over a child custody matter may dismiss a case on jurisdictional grounds if it finds, after certain criteria are met, that it is “an inconvenient forum,” but may do so “only once a child custody proceeding has been commenced in another state” (quotation simplified)). Even if we were to assume that the statutory criteria are met here given both parents’ relocation, see Utah Code Ann. § 78B-13-202(1)(b), the trial court made no finding that it was an inconvenient forum, and there is no indication, on the record before us, that any child custody proceeding involving these parties has been initiated in Nevada.

[2] The statutory list of elements is not intended to be exhaustive. Indeed, the statute itself proclaims that the court may take into account “any other factor the court considers relevant.” Utah Code Ann. § 30-3-35.1(2)(e) (LexisNexis Supp. 2018).

[3] All parties, as well as the trial court, agreed that Father has the ability to facilitate the increased parent-time, and that therefore the third statutory prerequisite is satisfied. See id. § 30-335.1(2)(c).

[4] Subsection (3) of section 35.1 provides factors that courts “shall consider” in determining whether a parent has been actively involved in a child’s life. See id. § 30-3-35.1(3). Those factors include whether the parent has “demonstrated responsibility in caring for the child”; whether the parent has “involvement in day care”; whether the parent has a “presence or volunteer efforts in the child’s school and at extracurricular activities”; whether the parent assists the child with homework, and whether the parent is involved in “preparation of meals, bath time, and bedtime for the child”; and whether the parent has a strong bond with the child. Id. In this case, the trial court’s findings reveal no effort to apply these factors. In any event, as noted, the evidence clearly supports the conclusion that these factors weigh in favor of Father, at least for the thirty-month period prior to trial: Father had a strong bond with Child, demonstrated responsibility for Child’s care, and had a presence at Child’s extracurricular and school activities.

[5] But if a trial court declines to adopt the recommendation of a custody evaluator, “the court is expected to articulate some reason for rejecting that recommendation.” Zavala v. Zavala, 2016 UT App 6, ¶ 44, 366 P.3d 422 (quotation simplified).

[6] This standard also differs from the standard for awarding costs and fees in actions brought “to enforce” an alreadyestablished order in a domestic case. See Utah Code Ann. § 30-3-3(2) (LexisNexis 2013). In enforcement cases, the standard is similar to the one ordinarily used in civil cases: courts are authorized to award fees to “the party [that] substantially prevailed upon the claim or defense.” Id. In such cases, a trial court “may disregard the financial need of the moving party” because awards under this subsection “serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Connell v. Connell, 2010 UT App 139, ¶¶ 28, 30, 233 P.3d 836 (quotation simplified). Thus, the “guiding factor” when awarding costs under subsection (2) is “whether the party seeking an award of fees substantially prevailed on the claim [or defense].” Id. ¶ 28.

[7] We do not mean to suggest that a court, when deciding how to allocate the costs of a custody evaluation, is forbidden from taking into account the identity of the party who asked for the evaluator to be appointed. In many cases, potentially including this one, that fact might be relevant to any determination about whether the costs are “reasonable.” See Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998). In appropriate cases, a court may even condition the grant of a motion to appoint a custody evaluator upon the movant paying the entire cost of the evaluation. In this case, however, that does not appear to be what the trial court did.

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Relocation: ex-wife just told me she’s moving out of state with the kids

What do I do?

My ex-wife tonight, in a fit of anger, told me that she and the kids will be moving out of state. There’s no reason–like a job or school or even remarriage–for her to move out of state.

I’m not sure how serious she is, but on the chance it does happen, how does that affect custody and parent time? We have joint custody, with her as custodial parent, and our decree says she has tentative final say, subject to my right to bring it to mediation.

As things stand now, odds are (odds are) that you will lose this fight, if it goes to court.

Why?

The “kids already spend more time in Mom’s custody than in Dad’s argument” is a good one and one that Mom will almost surely use. And let’s be honest: Mom will never claim she decided to move to Missouri “in a fit of anger.” It is ludicrous to believe that your ex-wife would ever admit in court that she is moving out of spite. Of course she’ll never fess up to that. She will deny it. She and her shyster attorney will it come up with plausible sounding reasons for the relocation. So you have to ask yourself: how will I win an argument against A) the parent who has custody the majority of the time; B) who is the all-important mother; and C) who will have no compunction against lying to improve your odds of success?

HOWEVER,

You might snatch victory from the gaping jaws of defeat, if you can show, among other things, that her move is in fact a spiteful move, or not one born of necessity, or contrary to preserving/fostering the best interest of the children, or that her move would do the children more harm than good, or that it would take the children not only from you, but from a crucial and broad extending family and friends support system, etc.

Another way is to take action to prevent her from moving. What kind of action? One thing I’ve found effective is to tell the parent who is contemplating a move that if she moves to Missouri, you will too. You’ll move to the same neighborhood so that you can ensure that you’re close to the children and then move for joint physical custody and a modification of child support due to the change in circumstances.

Your most likely path to success may not lie in trying to seek vindication within the system

Finding a way to defeat your ex-wife machinations using methods that are legal but within your power to control may be the more effective way (in various ways, whether a matter of time, money, effort, frustration, and damage to your reputation and relationship with your children). Without other arguments going for you, it would be naive to hope to persuade the judge or commissioner that the kids are better off with Dad when the children spend less time with him than with Mom.

If you can’t makes sense of it, can you at least understand it? Yes.

The simple, if unpopular, fact is that generally courts favor the mothers in these situations. It’s not fair. It’s sexist. The courts find excuses for it anyway. And you have to remember that it’s not a matter of what you know to be the case or even what your ex-wife knows to be the case, but what you can prove to the court and what stories the court will and will not believe. Most (not all, but most) judges and commissioners in family law matters are shockingly inattentive and apathetic in these situations. They often shamelessly prejudge such cases and believe they have the whole thing worked out before they read your pleadings, if they read your pleadings.

I’ve seen many cases just like yours where the parents share joint custody, with one parent spending more time with the kids than the other (even if it’s just a few days or weeks), then one of the parents decides to relocate, and the heartbroken parent who’s not moving who is trying desperately to preserve the relationships with the kids and wondering why it is that one parent can just up and leave with impunity.

I hope I’ve explained adequately why it is that a person in your position is at a clear disadvantage. It’s not fair, but it’s reality. You need to know what you’re really dealing with (not what you appear to be dealing with on the surface) before you can react in any kind of successful way.

Please understand that I am not saying there is no hope. While you have several factors working against you, I’ve suggested how you might overcome those disadvantages.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What document(s) do I need to travel with my children after divorce?

What do I need to travel by airplane or travel internationally with my children after divorce?

What you will need if you and your child are U.S. citizens and you and your child are going to travel by air with your child within the U.S. will likely not be as much as what you will need if you and your child are U.S. citizens and you and your child are going to travel internationally with your child. Still, a parental consent letter for international travel with a child will be more than sufficient to cover your needs for domestic travel with the child within the U.S. So for these reasons, this blog post will detail what you need and what I recommend you have to travel with a child internationally.

  • Your child must have a passport. To get a passport for a child (whether 16 years of age or younger) follow the requirements of the U.S. Department of State Bureau of Consular Affairs. Those requirements can be found by clicking here.
  • Unless you either have sole legal custody of your child or meet certain requirements, the consent of both parents is needed to obtain a passport for your child.

If you have sole legal custody of your child, this is what is required of you to obtain a passport for your child:

You must submit evidence of this with the application. Examples include:

  • Complete court order granting you sole legal custody of the child, such as a divorce decree or other custody order
  • Complete court order specifically permitting you to apply for your child’s passport (photocopy is acceptable)
  • Certified copy of the child’s birth certificate listing you as the onlyparent
  • Certified copy of an adoption decree listing you as the onlyparent
  • Certified copy of the judicial declaration of incompetence of the parent that cannot appear in person
  • Certified copy of the death certificate of the parent that cannot appear in person
  • If your ex-spouse will not cooperate and give consent for your child to apply for an obtain a passport, then you will need to obtain either a court order granting you sole legal custody of the child, such as a divorce decree or other custody order or a court order specifically permitting you to apply for your child’s passport

Click here to learn how to obtain a passport for children under the age of 16

If you cannot locate the other parent:

Letter of Parental Consent for International Travel

The U.S. Customs and Border Protection division of the Department of Homeland Security provides this on its website:

[QUESTION] If a child (under the age of 18) is traveling with only one parent or someone who is not a parent or legal guardian, what paperwork should the adult have to indicate permission or legal authority to have that child in their care?

[ANSWER] U.S. Customs and Border Protection (CBP) strongly recommends that unless the child is accompanied by both parents, the adult have a note from the child’s other parent (or, in the case of a child traveling with grandparents, uncles or aunts, sisters or brothers, friends, or in groups*, a note signed by both parents) stating “I acknowledge that my wife/husband/etc. is traveling out of the country with my son/daughter/group. He/She/They has/have my permission.”

Another good reason for having a parental consent letter for travel with a child (whether domestically or internationally) is because some airlines may require signed consent from the child’s other parent before allowing a child to board the plan. Because entry and departure requirements for travelers often vary from one destination to another, an immigration official may ask to see signed consent from the child’s other parent before allowing a child to leave the country.

As for what Customs and Border Protection recommends a parental consent letter contain, the CPB website provides:

What should a parental consent/permission letter look like?  Is there a Customs and Border Protection (CBP) form?

There is not a CBP Form letter but this is a letter you create.  The “Parental Consent Letter” should include the following elements:

Who

What

Where

When

Why

Contact information for the absent parent(s).

Having the letter notarized is not necessary but highly recommended.

For frequent border crossers, the letter should not exceed one year.  It is recommended to have the letter in English.

Here is a sample parental consent letter that I have prepared for some of my clients to use:

To Whom It May Concern:

I, _______________, am [the non-custodial parent] [the father] [the mother] [one of the parents] of the child more fully identified as:

Name: ______________ [first, middle, last], whose photograph is provided below for the purpose of identifying her

Date of birth: ______________

Place of birth: ______________

[If the child already has a passport and the child is traveling internationally, you may wish to include the following information in the parental consent letter:]

Child’s U.S. or foreign passport number:

Date and Place of issuance of child’s passport:

Date child’s passport expires:

______________ [name of the child]’s mother (and my [ex-wife] [ex-husband]) is ______________ [name of parent].

U.S. or foreign passport number:

Date and Place of issuance of [other parent’s] passport:

______________ [name of other parent, as it appears on other parent’s passport] has my consent

[to travel with our ______________ [son] [daughter], ______________ [child name] internationally as of the date appearing hereon and in the future.]

[to travel with our ______________ [son] [daughter], ______________ [child name], to [identify the foreign countries to which the child will travel] during the period between [start date] and [end date]. During that period, our [son/daughter] will be in the care and custody of [ex-spouse] and is anticipated to travel and/or stay with [identify other people the child will be traveling with, if any], the child’s [identify relationship(s), i.e., grandparent, aunt, uncle, coach, neighbor, etc.]. These fellow travelers can be reached at:

[Complete address of person(s) with whom child will be traveling/staying]

[Telephone number of person(s) with whom child will be traveling/staying]

[E-mail address of person(s) with whom child will be traveling/staying]

This photograph is a picture of [child] that accurately depicts her as of the date appearing hereon:

[include a recent, small, but clear photograph of the child here]

Signature:

 

_______________________________________

[printed out name of parent signing]

[Father/mother] of [child’s name]

STATE OF __________________________ )

: ss.

COUNTY OF _______________________ )

On this _____ day of ________________ 2018, personally appeared before me the undersigned, a Notary Public in and for said county and state [signing parent’s name], who is known to me to be the person who signed the foregoing document and who acknowledged to me that he signed it freely and voluntarily.

WITNESS my hand and official seal.

______________________________________

NOTARY PUBLIC

——————————–

Pro tip: Bring your child’s birth certificate (or certified copy of the birth certificate) with you to the airport to verify the child’s age and, in some instances, your relationship to the child.

Click here to know what documents, identification, and paperwork a U.S. citizen needs to travel internationally and/or into the United States.

Travel Provisions You May Want to Include in Your Decree of Divorce, if Your Decree Has Not Yet Been Issued

If you are not yet divorce and believe you might be traveling by airplane or internationally with your children after divorce, you may wish to cover some of these requirements in the provisions of your Decree of Divorce. You may want to include the following provisions in the decree of divorce:

  • express authorization for either parent to obtain a passport for each child;
  • express authorization for either parent to travel internationally with any or all of the children without having to obtain a letter of consent from the other parent
  • If there are compelling reasons to restrict a parent to traveling internationally with your children, or to restrict a parent to traveling with your children without your express written consent each time the children travel with that parent, you will want to ensure that you request that such provision are provided in your decree of divorce as well.

International Child Kidnapping Laws

For a good general explanation of the laws governing international parental abduction (kidnapping), visit this section of the U.S. State Department’s website on the subject.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

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