BLANK

Tag: motion to dismiss

Holt v. Holt – 2024 UT App 6 – reasonable time rule

Holt v. Holt – 2024 UT App 6

THE UTAH COURT OF APPEALS

RHONDA S. HOLT, Appellee,

v.

CHRISTOPHER JOHN HOLT, Appellant.

Opinion

No. 20220090-CA

Filed January 11, 2024

Third District Court, Salt Lake Department

The Honorable Andrew H. Stone

No. 044902588

Ben W. Lieberman, Attorney for Appellant

Matthew A. Steward and Katherine E. Pepin,

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and

DAVID N. MORTENSEN concurred.

ORME, Judge:

¶1       Christopher and Rhonda Holt’s divorce was finalized in 2004 after the entry of a stipulated settlement agreement and the district court’s entry of a divorce decree. Per the divorce decree, Rhonda[1] was awarded a commercial property in which she operated a salon and Christopher was awarded an equity interest in the property redeemable “when the property is sold.” From the time the court entered the divorce decree, Rhonda operated the salon and did not sell the property or satisfy Christopher’s outstanding interest.

¶2        Years later, Christopher petitioned the district court asking that it require Rhonda to sell the property and satisfy his equity interest, first on the rationale of modifying the divorce decree and later on the rationale of enforcing it. He contended that because “Utah law implies a reasonable time under the circumstances,” the court should compel Rhonda to sell the property. The district court ultimately determined that Rhonda had no obligation to sell the property and declined to impose any deadline by which she had to do so. But under Utah law, a reasonable time for performance will be implied if a contract fails to include a specific time for performance. And on the facts of this case, we conclude that a reasonable time for Rhonda’s performance extends to the time when she ceases to operate a salon on the property.

BACKGROUND

¶3        Christopher and Rhonda were married in 1988. In 2004, Rhonda filed a complaint for divorce, and soon after, the district court granted Rhonda’s motion for default judgment. The court then entered a divorce decree based on the parties’ Stipulation and Settlement Agreement (the stipulation). The record reflects that when the stipulation was entered, each party was represented by counsel. Christopher’s counsel withdrew after the stipulation was filed, just prior to entry of the decree.

The Stipulation and the Decree

¶4        The stipulation included an integration clause indicating that it was the parties’ final agreement. Specifically, it was “a complete settlement of all rights either party may have in the other’s property” and any “valid” modification or waiver of the stipulation’s terms must be “in writing and signed by both parties before a notary public.” The stipulation provided that neither party would receive alimony. Pursuant to the stipulation, the district court entered findings of fact and conclusions of law and a divorce decree that mirrored the provisions of the stipulation.

¶5        At the heart of this matter is section 9(B) of the decree. First, it awarded Rhonda the salon property and ordered Christopher to “execute a quit claim deed” in her favor. Second, it reserved for Christopher “an equitable lien for one-half of the net equity in the property when the property is sold.” Third, it defined net equity as “the gross selling price less realtor commissions and normal closing costs.” And fourth, it reiterated that Christopher “shall only be entitled to his equity when the property is sold.” The preceding section—section 9(A)—awarded Rhonda the parties’ home “free and clear from any claim by” Christopher and instructed that Christopher was to “execute a quit-claim deed in favor of” Rhonda within ten days following entry of the decree. It is noteworthy that section 9(B), in contrast to section 9(A), did not include a specific timeframe related to Rhonda’s satisfaction of Christopher’s equity interest in the property.

The Petition to Modify the Decree

¶6        In October 2018, over fourteen years after the decree was entered, Christopher filed a petition to modify the decree, claiming “a material and unforeseeable substantial change of circumstances.” Specifically, the petition indicated that “the parties did not anticipate that fourteen years would pass” during which Christopher’s equity interest in the property would go unpaid. Christopher sought an order compelling Rhonda to either sell or refinance the property and to satisfy Christopher’s outstanding interest.

¶7        In response, Rhonda moved to dismiss the petition on the ground that Christopher had failed to support his assertion of a material and unforeseeable change in circumstances warranting the requested modification of the decree. Rhonda acknowledged that Christopher would be entitled to have his equity interest in the property cashed out, but she argued that under the plain language of the decree, he was entitled to payment only when the property was sold, which had not yet occurred. Rhonda noted that the parties’ circumstances had not materially changed since the court entered the decree in 2004—she had not sold or refinanced the property and she continued to operate her salon on the property. Quoting Land v. Land, 605 P.2d 1248 (Utah 1980), Rhonda argued that “when a decree is based upon a property settlement agreement, forged by the parties and sanctioned by the court, equity must take such agreement into consideration.” Id. at 1250–51. She noted our Supreme Court’s position that “[e]quity is not available to reinstate rights and privileges voluntarily contracted away simply because one has come to regret the bargain made.” Id. at 1251. Rhonda asserted that the decree does not impose a deadline by which she had to sell the property and “clearly withholds distribution” of Christopher’s interest in the property until it is sold. Thus, she maintained that Christopher “failed to demonstrate that there has been a substantial change in circumstances that was not [contemplated] by the parties at the time the decree was entered.”

¶8        In his opposition to the motion to dismiss, Christopher claimed that he was not represented by counsel during the divorce action and thus was not involved in drafting the decree.[2] He also claimed that he relied on representations Rhonda made both before and after entry of the decree that she would refinance or sell the property “in the very near future to pay him out.” Christopher asserted that prior to the divorce, the parties had received an $84,000 loan from his parents to purchase the property and that when his parents passed away some years later, $84,000 was taken out of his inheritance to pay the obligation. Christopher argued that under the plain language of the decree and under Rhonda’s suggested interpretation of section 9(B), he “could die and not receive any benefit from the agreement” and he could potentially lose his interest in the property if Rhonda were to pass away or transfer the property to someone else, thereby avoiding the satisfaction of Christopher’s equity interest.

¶9        Rhonda responded that the petition before the court was one to modify the decree based on a theory of material change of circumstances—not one to enforce the decree. She argued that this was really a situation of unilateral mistake on his part, and she reiterated her position that hindsight and dissatisfaction with a prior stipulation are not adequate grounds for relieving parties of their contractual obligations. Rhonda again acknowledged her obligation to pay Christopher his share of the equity when the property is sold, but she pointed out that the decree did not specify a sale deadline. She also noted that it would have been very easy to incorporate such a date into the stipulation and the decree if that had been the parties’ intention. To support this position, Rhonda pointed out that section 9(A) of the decree imposed a ten-day deadline for Christopher’s delivery of a quitclaim deed to the parties’ home, while section 9(B), which dealt with the sale of the salon property, included no provision concerning the time for performance.

¶10      Christopher requested that the court hold an evidentiary hearing concerning Rhonda’s motion to dismiss. But the district court denied this request and also denied Rhonda’s motion to dismiss. Eventually, a trial date was set. And at the ensuing bench trial,[3] at which both Christopher and Rhonda testified, the district

court granted Rhonda’s motion for a directed verdict and dismissed the petition on the ground that Christopher had failed to provide sufficient evidence to support the petition.[4]

The Motion to Enforce the Decree

¶11      In July 2021, Christopher filed a motion to enforce the decree in a renewed effort to compel Rhonda’s sale of the salon property. Christopher argued that under the principles articulated in New York Avenue LLC v. Harrison, 2016 UT App 240, 391 P.3d 268, cert. denied, 393 P.3d 283 (Utah 2017), the decree’s lack of an “expressly-stated time[] for performance” signified that the court should impose a “reasonable time under the circumstances” by which Rhonda had to sell the property and that such a time had already passed. See id. ¶ 32 (quotation simplified).

¶12      In response, Rhonda argued that the motion to enforce was simply Christopher’s attempt to get a “third bite at the apple.” Similar to her response to the petition to modify, Rhonda argued that Christopher failed to present sufficient credible evidence to support his contention that the parties’ intent was anything other than to afford Christopher his interest in the property when Rhonda sold it. She contended that because the salon on the property was her “sole source of income,” the parties deliberately omitted any specific performance deadline, providing instead— and explicitly emphasizing—that Christopher would be entitled to payment for his interest when, and only when, the property was sold. Rhonda asserted that it would therefore be inappropriate for the court to impose a reasonable time by which she had to sell the property when the decree’s plain language was straightforward and explicitly did not include one.

¶13 In October 2021, Commissioner Russell Minas heard argument on the motion. The commissioner concluded that “[b]ecause there [was] no deadline provided by the parties, Utah law implies a reasonable time under the circumstances,” see id., which he determined to be “until [Rhonda] ceases to use the Property to operate a business.” The commissioner thereafter issued his recommendation in the matter. See Utah R. Civ. P. 108(a) (“A recommendation of a court commissioner is the order of the court until modified by the court.”).

¶14 Christopher subsequently filed an objection to the recommendation pursuant to rule 108 of the Utah Rules of Civil Procedure. See id. (“A party may file a written objection to the recommendation within 14 days after the recommendation is made in open court[.]”). Christopher acknowledged that the commissioner correctly determined that the reasonable-time rule articulated in New York Avenue applied to this case. But he challenged the commissioner’s application of the rule. He argued that the “reasonable time under the circumstances is determined by looking to the intention of the parties at the time of the formation of the contract” and that in so doing, it is clear the reasonable-time threshold had already passed because neither the stipulation nor the decree intended for Rhonda “to retain the Property and all equity so long as she operated a business.” Rhonda yielded to the commissioner’s interpretation of a reasonable time, arguing that the commissioner correctly defined a reasonable time under all the circumstances.

¶15 The district court heard argument on Christopher’s objection.[5] The court overruled Christopher’s objection from the bench and modified the commissioner’s recommendation. The court concluded that a reasonable time for performance should not be implied here because, per the language of the decree, Rhonda’s deadline to sell the property was whenever she chose to sell it and that “it would be inappropriate for the Court to impose a date by which the Property must be sold.”

¶16      Christopher appeals.

ISSUES AND STANDARDS OF REVIEW

¶17 Christopher primarily argues that the district court erred in concluding that the reasonable-time rule was inapplicable here. “We interpret a divorce decree according to established rules of contract interpretation.” Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248 P.3d 65 (quotation simplified), cert. denied, 255 P.3d 684 (Utah 2011). Accordingly, we review the district court’s interpretation of the decree for correctness. See Mintz v. Mintz, 2023 UT App 17, ¶ 14, 525 P.3d 534, cert. denied, 531 P.3d 730 (Utah 2023).

¶18 Christopher also argues that the court “exceeded the scope” of his objection when it addressed “matters not before the court.” The scope of a court’s review of a commissioner’s recommendation turns on the correct interpretation of the applicable rule of civil procedure. Cf. Zions Bancorporation, NA v. Schwab, 2023 UT App 105, ¶ 12, 537 P.3d 273 (holding that the district court’s “statutory interpretation” is reviewed “for correctness”) (quotation simplified); Bermes v. Summit County, 2023 UT App 94, ¶ 28, 536 P.3d 111 (stating that a district court’s “interpretation of a set of statues or ordinances” is reviewed “for correctness”) (quotation simplified), cert. denied, 2023 WL 9058850 (Utah 2023).

ANALYSIS

I. Reasonable Time Under the Circumstances

¶19      Christopher first challenges the district court’s conclusion that “it would be inappropriate for the Court to impose a date by which the property must be sold.” He asserts that the court’s conclusion is incorrect, that the reasonable-time rule is applicable here, that a reasonable time has long since elapsed, and that Rhonda should be compelled to sell the property and satisfy his equity interest. We determine that the district court’s conclusion was incorrect and conclude that the reasonable-time rule is applicable in this matter. We then determine what constitutes a reasonable time for Rhonda’s performance under the circumstances.

¶20 A stipulated divorce decree represents an enforceable contract between divorcing spouses, and so “we interpret the parties’ decree according to established rules of contract interpretation.” Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232 (quotation simplified). Of course, “the cardinal rule in contract interpretation is to give effect to the intentions of the parties as they are expressed in the plain language of the contract itself,” and “we construe a contract to give effect to the object and purpose of the parties in making the agreement.” New York Avenue LLC v. Harrison, 2016 UT App 240, ¶ 21, 391 P.3d 268 (quotation simplified), cert. denied, 393 P.3d 283 (Utah 2017). Key to the issue before us, our principles of contract interpretation further provide “that if a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances,” id. ¶ 32 (quotation simplified), which analysis entails a question of fact, see iDrive Logistics LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 55, 424 P.3d 970, cert. denied, 425 P.3d 803 (Utah 2018).

¶21 The parties agree on the basic meaning of the terms contained in section 9(B) of the decree. They accept that under section 9(B), Rhonda was awarded ownership of the property, Christopher was required to “execute a quit claim deed” in Rhonda’s favor while reserving for himself “an equitable lien for one-half of the net equity of the property when the property is sold,” and that Christopher would “only be entitled to his equity when the property is sold.” Further, both parties acknowledge that section 9(B) does not include a date by which the property was required to be sold. Based on this understanding, Christopher argues that the district court’s conclusion was incorrect, that the reasonable-time rule does apply, and that Rhonda should be compelled to sell the property immediately, a reasonable time having long since come and gone, or else his interest “could remain trapped forever.”

¶22 Christopher asserts that under our decision in New York Avenue, the district court should be required to apply the reasonable-time rule based on the reality that section 9(B) did not include a specified time of performance. In that case, a seller contracted with a buyer for the sale of certain real estate. 2016 UT App 240¶ 3. Due to unforeseen complications, the transaction was not settled on the date intended by the contract. Id. ¶¶ 5–6. The buyer, still desiring to be bound by the terms of the contract, elected to begin making monthly settlement extension payments to the seller, as provided for in the contract, thus advancing the contract’s intended settlement date to the last day of the month associated with the buyer’s settlement extension payment. Id. ¶ 6. While the contract provided terms to extend the settlement date, it failed to specify a final date regarding the ultimate settlement of the contract or to define the maximum number of settlement extensions available to the parties. Id. ¶ 5. After numerous settlement extensions, the seller sought to terminate the contract. Id. ¶¶ 8–9. Following a summary judgment hearing, the district court determined that the contract entitled the buyer to extend the settlement deadline indefinitely, “so long as valid tender of the extension payment was made.” Id. ¶ 12 (quotation simplified).

¶23 On appeal, we held, in relevant part, that because the contract did “not limit the number of extension payments,” it did “not provide a date by which [seller] must perform its core obligation to complete the purchase of the Property.” Id. ¶ 34. Accordingly, we noted “that if a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances.” Id. ¶ 32 (quotation simplified). And we concluded that the district court erred in granting summary judgment that countenanced an indefinite extension of the time for performance. Id. ¶¶ 29, 32.

¶24 Similar to the seller in New York Avenue, Christopher is concerned that if we conclude that the reasonable-time rule does not apply to section 9(B) of the decree, there exists a possibility that Rhonda could opt to never sell the property and thereby retain all of the equity indefinitely. In reviewing the conclusions of the court, we must evaluate the plain language of section 9(B) of the decree to determine if the district court correctly held that the reasonable-time rule did not apply.

¶25 Based on the plain language of section 9(B), it is obvious that nowhere in its four sentences is there any provision regarding a specific date by which Rhonda must sell the property. Rhonda argues on appeal that it would be improper for the court to impose a reasonable time for performance because, unlike the contract at issue in New York Avenue, section 9(B) did not intend to “create an obligation” for the sale of the property. She further contends that sale of the property is a condition precedent, and thus, she is not required to sell the property but that if she does, Christopher would then be entitled to receive his share of the equity. We are not persuaded by Rhonda’s argument. The intent of the decree was to “resolve all issues between” the parties. Therefore, while section 9(B) was not intended to be a sales agreement, it was also not intended to allow Rhonda to indefinitely prevent the satisfaction of Christopher’s interest. See Brady v. Park, 2019 UT 16, ¶ 53, 445 P.3d 395 (“When we interpret a contract we first look at the plain language of the contract to determine the parties’ meaning and intent.”) (quotation simplified). Accordingly, we agree with Christopher that a reasonable time for performance should be implied. Thus, we conclude that the district court incorrectly determined that the reasonable-time rule was inapplicable here. We next determine what the reasonable time should be, and here we part ways with Christopher and endorse the view adopted by the commissioner.

¶26      Due to the nature of these proceedings and Christopher’s decision not to request transcripts of the prior hearings, we are unable to consider the parties’ presentations before the commissioner or the district court, including not only the arguments they made but also any evidence they introduced or evidentiary proffers they made. Even so, Christopher contends that “[a] reasonable time is defined by the parties’ intentions at the time the contract is formed, not when the dispute arises,” and that because the parties did not intend for his interest to remain unsatisfied this long, a reasonable time has long since elapsed. Conversely, Rhonda contends that “[t]he language of the Decree demonstrates that the Parties intended for [her] to be able to operate her business from the Property to support herself indefinitely.”

¶27 In consideration of what constitutes a reasonable time under the circumstances, we must discern the parties’ intentions from the language of their contract—the stipulated decree—and the relevant circumstances, but in the absence of whatever evidence might have been adduced or proffered at the hearings as we have not been favored with the transcripts. We are mindful that neither party was awarded alimony in this case, meaning Rhonda’s livelihood depended on her continued ability to operate her salon business. And it is significant that not only was no time for Rhonda‘s performance specified, but it was emphasized that Christopher shall be entitled to his equity only “when the property is sold.” The conclusion is inescapable, as determined by the commissioner, that the intention of the parties, as reflected in the language they employed, was that Rhonda’s obligation to sell the property and cash out Christopher would be triggered when she ceased to operate the salon business. That occurrence would equate to the reasonable time for her performance under the unique circumstances of this case.

II. Scope of District Court Review

¶28      Christopher next challenges the district court’s expansive consideration of the commissioner’s recommendation, arguing that the court “exceeded the scope” of his objection by addressing “matters not before the court.” We disagree with Christopher’s position. A plain reading of rule 108(f) of the Utah Rules of Civil Procedure requires the district court to make “independent findings of fact and conclusions of law based on the evidence.” And our jurisprudence makes clear that a district court has plenary responsibility for “what is essentially its own order.” Somer v. Somer, 2020 UT App 93, ¶ 12, 467 P.3d 924 (quotation simplified). Accordingly, we conclude that the court did not exceed the scope of its authority in reviewing the commissioner’s recommendation without being confined to the contours of the objection made by Christopher.

¶29      “We interpret court rules, like statutes and administrative rules, according to their plain language.” Day v. Barnes, 2018 UT App 143, ¶ 12, 427 P.3d 1272 (quotation simplified). Rule 108 provides a procedure by which a party may object to a commissioner’s recommendation and request that the district court review the recommendation. Within this framework, subsection (a) first indicates that a commissioner’s recommendation “is the order of the court until modified by the court” and that “[a] party may file a written objection to the recommendation.” Utah R. Civ. P. 108(a) (emphasis added). Next, subsection (b) explains that any objection “must identify succinctly and with particularity the findings of fact, the conclusions of law, or the part of the recommendation to which the objection is made and state the relief sought,” and it also provides that the accompanying memorandum of support “must explain succinctly and with particularity why the findings, conclusions, or recommendation are incorrect.” Id. R. 108(b). Lastly, subsection (f) directs that “[t]he judge will make independent findings of fact and conclusions of law based on the evidence, whether by proffer, testimony or exhibit, presented to the judge, or, if there was no hearing before the judge, based on the evidence presented to the commissioner.” Id. R. 108(f) (emphasis added). Thus, the plain language of the rule “does not provide for an appeal-like review of a commissioner’s decision, but instead requires independent findings of fact and conclusions of law based on the evidence.” Day, 2018 UT App 143, ¶ 16 (quotation simplified).

¶30 In the case at hand, after the commissioner made his recommendation, Christopher filed an objection wherein he explained that while the commissioner “correctly found” that the reasonable-time rule applied to section 9(B) of the decree, he erred because the recommendation was not based on evidence that, at the time the decree was entered, the parties intended that Rhonda would “retain the Property and all equity so long as she operated a business.” After a hearing on Christopher’s objection, the court modified the recommended order based on its independent determination that it would be “inappropriate” to apply the reasonable-time rule and “to impose a date by which the Property must be sold.” Christopher now argues that the court’s decision to modify the recommendation concerning the reasonable-time rule “exceeded the scope” of his objection because, as the objecting party, he “was entitled to define the scope of his objection, and he did so narrowly.”

¶31 We reject this argument. As just explained, when faced with an objection to a commissioner’s recommendation, the responsible district court judge is expected to make “independent findings of fact and conclusions of law based on the evidence.” Utah R. Civ. P. 108(f) (emphasis added). We have previously explained that because a commissioner’s recommendation is “the order of the district court until modified by that court,” “it would make little sense that the district court would be limited in reviewing what is essentially its own order.” Day, 2018 UT App 143, ¶ 18 (quotation simplified). Therefore, while rule 108 provides that the objecting party must proceed with “particularity” concerning the basis of the objection, Utah R. Civ. P. 108(b), that same particularity does not circumscribe the authority of the reviewing court and does not limit the reviewing court’s ability to make its own findings and conclusions, see id. R. 108(f). Thus, notwithstanding Christopher’s “narrowly” defined objection, the court’s modification of the commissioner’s recommendation did not exceed the appropriate scope of review in a procedural sense, even though we conclude that the court’s substantive conclusion was incorrect.

CONCLUSION

¶32 The district court erred because the reasonable-time rule should have been applied in this case, and the reasonable time to be imputed is essentially the time as determined by the commissioner, namely when Rhonda ceases operating her salon on the property. We remand so the court can adjust its order accordingly. At the same time, we conclude that the court did not exceed the scope of its review authority under rule 108.

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


[1] Because the parties share the same last name, we refer to them by their first names, with no disrespect intended by the apparent informality.

[2] Christopher, then represented by new counsel, may have been confused about this because the decree was entered on the basis of his default. But the record in this case demonstrates that Christopher was represented by counsel right up until the time the decree was entered on the basis of his stipulated default.

[3] With no transcript of the bench trial submitted by Christopher, we rely on the minutes of the proceedings found in the record. Cf. In re A. Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 85, 536 P.3d 38 (stating that “when an appellant fails to provide an adequate record on appeal, we presume the regularity of the proceedings below”) (quotation simplified).

[4] In May 2021, Christopher appealed, requesting that this court review the dismissal of the petition to modify and “all subsidiary rulings and orders leading to final judgment,” but he moved to voluntarily dismiss this appeal shortly thereafter, which motion this court granted.

[5] As with the bench trial, Christopher did not request a transcript of this hearing and we therefore rely on the minutes of the proceedings found in the appellate record to understand what occurred during the hearing. See supra note 3. While it perhaps is not always necessary to include a transcript of hearings in the appellate record, we have previously determined that a transcript “is necessary in cases where the court issued an oral ruling at the conclusion of the hearing and where the court’s eventual written order is silent with regard to the matter being challenged.” In re A. Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 86, 536 P.3d 38“In such cases, a transcript of the hearing is necessary for us to effectively review the challenged issue” because without it “we do not know what evidence or argument the court relied on in rendering any decision.” Id. While we do have a spartan description of the hearing included in the court’s minutes, which is not without utility, we discourage parties from relying wholly on the court’s minutes when a transcript is readily available.

Tags: , , , , , , , , , , , , , , , , , , , , ,

What should I tell my lawyer who says that a motion to dismiss is not real?

What should I say to my lawyer who told me that a motion to dismiss isn’t really a thing so we cannot file one?

It may be that a motion to dismiss is in fact not possible (not permitted by the rules under the circumstances of your case) or not wise under the circumstances (possible, but a bad idea), even though you believe otherwise. a lot of people are familiar with certain legal jargon without knowing what it means, and they often throw it around ignorantly and inaccurately. 

I can’t tell you how many times clients have come to me believing they have rights to do this or rights not to do that, only to find out that their understanding was erroneous. 

A few examples: thinking you have a right to certain documents (or every document known to man) under the “Freedom of Information Act”, believing you don’t have to answer provide requested documents or answer certain questions in a deposition or at trial if they claim that the information sought from them is “private” or “confidential,” believing that because they know the truth/right thing to do, the court must agree with them. 

If you have an idea and your lawyer shoots it down without you understanding why, don’t be afraid to ask your lawyer to explain it to you. If your lawyer can’t do that, your idea may not be so bad (but instead your lawyer may not be up to the task). 

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

https://www.quora.com/What-should-I-say-to-my-lawyer-who-told-me-that-a-motion-to-dismiss-isnt-really-a-thing-so-we-cannot-file-one/answer/Eric-Johnson-311 

Tags: , , , , , , , , , ,

Father has 50/50 custody. Now ex is trying to take it away. What to do?

I am a father who has exercised at least 50/50 custody with my ex. Now she’s trying to take me to court for full custody and me getting every other weekend visits. How can I avoid losing 50/50 custody?

First, thank your lucky stars you are a father who currently has 50/50 custody of his children. Far, far too many fit and loving fathers who could easily exercise joint equal physical custody of their children and whose children would do nothing but benefit from the exercise of joint equal custody are needlessly and unjustifiably denied a joint equal child custody award by courts who simply cannot bring themselves to believe, much less conceive of, the idea that children being reared by both parents equally is better than relegating one parent to second class visitor status in his child’s life.

Second, the fact that you have been exercising at least 50–50 custody of your children for the past few years helps to make it much harder for your ex to build a case against you for modifying the child custody award in a manner that deprives both father and children of a 50–50 custody schedule. Again, be grateful this is the case, because if you were trying to win 50–50 custody of your children on the first go around during your divorce or other child custody legal action, the odds are grossly stacked against fit and loving fathers.

Third, if you are afraid that your judge is going to discriminate against you on the basis of sex, you need to understand this principle: “if it isn’t close, there cheating won’t matter.” Otherwise stated, you need to ensure that you win six ways from Sunday. you have to bring overwhelming amounts of evidence and proof into court, so that you leave the judge no option but to rule in your favor. Easier said than done, certainly, but now is not the time to become complacent or substitute hope for effort. Spare no expense to preserve your joint equal physical custody award. A necessary component of a winning case is that you are living a life beyond reproach. Get your house in order. If there is anything remotely amiss in your life, correct course immediately, clearly, and permanently.

Fourth, make sure you understand and that your attorney understands what statutory and case law factors and criteria govern the original child custody award and a petition to modify the original child custody award. It may be that your ex does not have sufficient grounds for a petition to modify child custody to survive a motion to dismiss.

Fifth and finally, do not take on a petition to modify child custody alone, without a vigilant and skilled attorneys assistance. There is an undeniable culture of bias and discrimination and prejudice against fathers when it comes to courts making child custody awards. This doesn’t mean that every judge in every court indulges in sexual discrimination against father, but it’s virtually impossible to tell the difference between an impartial judge and a biased one, and so you need an attorney who will not suffer fools gladly, who will defend the joint equal custody award.

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

https://www.quora.com/As-a-father-I-have-50-50-split-custody-with-my-ex-and-then-some-now-shes-trying-to-take-me-to-court-for-full-custody-every-other-weekend-visits-how-can-I-avoid-loosing-ny-kids/answer/Eric-Johnson-311?prompt_topic_bio=1

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

2019 UT App 207 – Peeples v. Peeples – modification of child custody

2019 UT App 207 – THE UTAH COURT OF APPEALS

ADAM LEGRANDE PEEPLES, Appellee,
v.
ANNALEISE T. PEEPLES, Appellant.

Opinion
No. 20180713-CA
Filed December 19, 2019

Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 044901980

Brian Boggess, Attorney for Appellant
Adam L. Peeples, Appellee Pro Se

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.

HARRIS, Judge:

¶1           Annaleise T. Peeples (Mother) asked the district court to modify her divorce decree to give her sole custody of her two teenage daughters, but the district court refused, determining that Mother had failed to demonstrate any substantial change in the circumstances underlying the original decree. Mother now appeals the district court’s order dismissing her petition to modify, and we affirm.

BACKGROUND

¶2           In 2004, after about three-and-a-half years of marriage, Adam Legrande Peeples (Father) filed for divorce from Mother, citing irreconcilable differences. Around the same time, Father also sought and obtained a protective order against Mother, asserting that Mother had been physically abusive to him; that protective order awarded temporary custody of the parties’ two young daughters to Father. The parties were each represented by counsel in both the divorce and the protective order proceedings, and because of the allegations of physical abuse, the court also appointed a guardian ad litem to represent the best interests of the two children. Early in the divorce case, all parties and counsel appeared before a domestic relations commissioner to discuss the parties’ motions for temporary orders. Following that hearing, the commissioner entered a temporary order, later countersigned by the assigned trial judge, awarding temporary custody of the children to Father, as the protective order did, with Mother receiving parent-time.

¶3           As the divorce proceedings progressed, the district court appointed a custody evaluator to make a recommendation to the court. While the custody evaluation was ongoing, the court entered a stipulated bifurcated decree of divorce in 2005, severing the parties’ marital union but reserving all other issues, including custody and parent-time, for further proceedings. In 2007, Mother filed her first motion for a change in custody, alleging that the temporary order giving custody to Father was unworkable because Mother lived in northern Utah County and Father lived in Salt Lake County, and because Father had “moved three times in three years and has not demonstrated stability.” Father objected, and after briefing and oral argument, the commissioner denied Mother’s motion.

¶4           In October 2007, soon after the commissioner denied Mother’s motion for a change in temporary custody, the parties and counsel participated in a settlement conference with the custody evaluator, at which the evaluator orally shared with the parties his recommendation: that primary physical custody remain with Father. At a hearing in December 2007, the guardian ad litem informed the court that he agreed with the custody evaluator’s recommendation. At that same hearing, the district court set a date for a bench trial to resolve all remaining issues.

¶5           Following the commissioner’s ruling on Mother’s motion and the court’s decision to set a trial date, as well as the revelation of the recommendations made by the custody evaluator and the guardian ad litem, the parties and their counsel entered into negotiations, and were able to resolve the remaining issues by stipulation. On April 28, 2008, after more than four years of divorce litigation, the court entered a stipulated amended decree of divorce, awarding the parties “joint legal custody” of the children, but awarding Father “primary physical custody.” Mother was to have “liberal parenting time” amounting to five out of every fourteen overnights during the school year, with the schedule to be “reversed” during the summertime.

¶6           Perhaps not surprisingly, given the nature and tone of the four years of pre-decree litigation, entry of the final divorce decree did not end the divisiveness and discord between these parties. About a year-and-a-half after the amended decree was entered, Mother filed a petition to modify, seeking amendments to the parent-time provisions of the decree. Mother alleged that circumstances had changed substantially since the entry of the decree because Father had enrolled the children in year-round school, rendering certain of the decree’s provisions unworkable, and because Father had violated the decree in numerous particulars. Father responded by filing a cross-petition to modify, seeking sole legal and physical custody. After further proceedings, the district court declined to modify the original divorce decree, and denied the parties’ dueling petitions.

¶7           A few years later, in 2013, Mother filed the instant petition to modify, this time seeking sole physical custody of the children. Mother asserted that circumstances had changed in three specific ways. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children [had] been emotionally abused.”

¶8           Soon after the filing of Mother’s 2013 petition to modify, the parties agreed to have another custody evaluation done. After some procedural wrangling about the identity of the evaluator, the court finally appointed one, and the new evaluator interviewed the parties and the children in the fall of 2015. In January 2016, the evaluator shared her recommendation with the parties’ attorneys: that Mother be awarded sole physical custody, with Father to receive “standard minimum parent time.” Soon thereafter, the court appointed a different guardian ad litem (GAL) to represent the best interests of the children during the proceedings on the petition to modify.

¶9           From there, it took over a year to get to trial on the petition to modify; trial eventually took place over two days in December 2017. Just a few days before trial was to begin, the GAL issued a report containing his recommendations. Unlike the custody evaluator, the GAL recommended that the custody arrangement remain unchanged, with Father retaining primary physical custody. He explained that, while he understood the evaluator’s “rationale for recommending a change in custody at the time [the] evaluation was performed, over two years [had] passed” since the evaluator conducted her interviews, and he expressed his view that the information on which the evaluator based her conclusions was outdated.

¶10         At trial, Mother (as the petitioner on the petition to modify) presented her case first, and called three witnesses over the first day-and-a-half of trial: herself, Father, and the custody evaluator. At the conclusion of Mother’s case-in-chief, Father made an oral motion to dismiss the petition to modify, arguing that Mother failed to “meet her burden to prove that a significant change in circumstances has taken place.” After hearing argument from both sides, as well as from the GAL, the court granted Father’s motion. The court explained that Father’s relative instability had been constant since before the decree was entered, and therefore was not a change in circumstances; that any violations by Father of the terms of the decree could be resolved in contempt proceedings, and—especially in a case in which “[t]he parties have been in constant conflict since their separation and likely before”—that those violations did not rise to the level of unworkability that would constitute a change in circumstances; and found that there had not been any violence or emotional abuse. The court noted that the parties had been fighting over custody for some thirteen years, and that the fighting had been fairly constant. The court stated that, in such a “high-conflict” case, “if anything, the need to show a change in circumstances [is] even stronger,” and “the need for a permanent decree . . . that people can rely on . . . is that much greater.” A few weeks later, the court entered a written order, drafted by Father’s counsel, dismissing Mother’s petition to modify; that order contained a provision stating that, “[i]n a high conflict divorce such as this one, the need for finality is even greater and therefore the burden to show a material and significant change in circumstances should be higher than normal.”

ISSUE AND STANDARDS OF REVIEW

¶11         Mother now appeals from the district court’s order dismissing her petition to modify. When reviewing such a decision, we review the district court’s underlying findings of fact, if any, for clear error, see Vaughan v. Romander, 2015 UT App 244, ¶ 7, 360 P.3d 761, and we review for abuse of discretion its ultimate determination regarding the presence or absence of a substantial change in circumstances, see Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. The district court’s choice of legal standard, however, presents an issue of law that we review for correctness. See id. ¶ 6.

ANALYSIS

¶12         Mother challenges the district court’s dismissal of her petition to modify on two general grounds. First, she contends that the district court employed an incorrect (and overly strict) legal standard in determining whether circumstances had changed sufficiently to justify reopening the governing custody order. Specifically, she asserts that the court did not properly take into account the fact that the decree at issue was stipulated rather than adjudicated, and she takes issue with the statement in the court’s written order that, in “high conflict” cases, the burden of demonstrating a change in circumstances is “higher than normal.” Second, Mother contends that the district court abused its discretion in determining, on the facts of this case, that no substantial and material change in circumstances existed. We address each of these contentions in turn.

A

¶13         Under Utah law, petitions to modify custody orders are governed by a two-part test:

A court order modifying . . . an existing joint legal custody or joint physical custody order shall contain written findings that: (i) a material and substantial change of circumstance has occurred; and (ii) a modification . . . would be an improvement for and in the best interest of the child.

Utah Code Ann. § 30-3-10.4(2)(b) (LexisNexis Supp. 2019). Because “[t]he required finding of a material and substantial change of circumstances is statutory, . . . [n]either this court nor the supreme court has purported to—or could—alter that requirement.” Zavala v. Zavala, 2016 UT App 6, ¶ 16, 366 P.3d 422; see also Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553 (“Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.”). Thus, “only if a substantial change of circumstances is found should the [district] court consider whether a change of custody is appropriate given the child’s best interests.” Wright v. Wright, 941 P.2d 646, 651 (Utah Ct. App. 1997) (quotation simplified).

¶14         This statutory requirement that a substantial change in circumstances be present before a court may modify a custody order serves two important ends. “First, the emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). We have previously noted the “deleterious effects of ‘ping-pong’ custody awards” that subject children to ever-changing custody arrangements. See Taylor v. Elison, 2011 UT App 272, ¶ 13, 263 P.3d 448 (quotation simplified). Second, the requirement “is based in the principles of res judicata,” as “courts typically favor the one-time adjudication of a matter to prevent the undue burdening of the courts and the harassing of parties by repetitive actions.” Id. (quotation simplified); see also Zavala, 2016 UT App 6, ¶ 16 (stating that the statutory change-in­circumstances requirement is “a legislative expression of the principle of res judicata”).

¶15         The change-in-circumstances requirement is itself comprised of two parts. In order to satisfy it, “the party seeking modification must demonstrate (1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). In this context, however, our case law has drawn something of a distinction between adjudicated custody decrees and stipulated custody decrees, recognizing that “an unadjudicated custody decree” is not necessarily “based on an objective, impartial determination of the best interests of the child,” and therefore the res judicata policies “underlying the changed-circumstances rule [are] at a particularly low ebb.” See Taylor, 2011 UT App 272, ¶ 14 (quotation simplified). In Zavala, we clarified that the change-in-circumstances requirement still applies even in cases involving stipulated (as opposed to adjudicated) custody orders, although we acknowledged that, in some cases, “a lesser showing” of changed circumstances may “support modifying a stipulated award than would be required to modify an adjudicated award.” See 2016 UT App 6, ¶ 17.

¶16         In this case, the court did not specifically discuss the distinction our case law has drawn between stipulated and adjudicated decrees, or the extent to which this decree should be considered stipulated or adjudicated. The court simply applied the change-in-circumstances requirement and found it not met on the facts of this case. In one recent case, we found no error under similar circumstances. See Erickson v. Erickson, 2018 UT App 184, ¶ 21, 437 P.3d 370 (declining to reverse a district court’s determination that no substantial and material change in circumstances had been shown, despite the fact that the district court did not specifically consider “the fact that the underlying custody award was based on a stipulated agreement”).

¶17         But more to the point, we think it unhelpful to view the adjudicated/stipulated dichotomy as entirely binary; instead, in assessing how much “lesser” a showing might be required to satisfy the change-in-circumstances requirement, see Zavala, 2016 UT App 6, ¶ 17, courts should examine the origin of the order in question and analyze the extent to which the order—even if stipulated—reflects the result of robustly contested litigation aimed at ascertaining the best interest of the child.

¶18         We discern no error here, even though the district court did not expressly discuss the origin of the custody decree at issue, because the decree—although entered as a result of a negotiated settlement—was more akin to an adjudicated decree than a non-adjudicated decree. Here, the decree was finalized in April 2008, after more than four years of litigation between the parties, during which both parties were represented by counsel the entire time. The parties had fully litigated not only motions for protective orders, which involved custody determinations made by a court, but also motions for temporary orders before the court commissioner and the district court wherein temporary custody determinations were made. Moreover, the court had appointed a guardian ad litem to represent the children, and in addition a full evaluation had been performed by a neutral court-appointed custody evaluator. The parties did not reach their negotiated settlement in this case until after they had received input from not only the custody evaluator and the guardian ad litem, but also from the commissioner and the court during the temporary orders process. By the time the settlement was reached, four years of litigation had passed and a trial date had been set. In the end, the decree encapsulated, for the most part, the recommendations made by the guardian ad litem and the custody evaluator, and memorialized an arrangement very similar to the one previously ordered by the court on a temporary basis.

¶19         We certainly recognize the potential for injustice with certain types of stipulated custody orders; indeed, this is part of the reason why courts, when considering petitions to modify, retain the flexibility to be less deferential to stipulated custody orders. See Taylor, 2011 UT App 272, ¶ 14 (stating that unadjudicated custody decrees “may in fact be at odds with the best interests of the child” (quotation simplified)). Depending on the situation, our confidence that a stipulated custody decree—at least one that is submitted to the court before receipt of input from judicial officers during the temporary orders process or from custody evaluators or guardians ad litem—will actually be in keeping with the best interest of the child may be comparatively low, especially where neither side is represented by counsel (or, potentially more concerning, when only one side is represented by counsel). Inequalities in negotiating power or financial resources can sometimes result in one parent agreeing to conditions by stipulation that may not be in the long-term best interest of the child.

¶20         But such concerns are not present in a case like this one, where the parties reached a negotiated agreement after fully and robustly participating in the litigation process, with lawyers, for more than four years. The terms of the negotiated custody decree in this case—entered on the eve of a scheduled trial—did not substantially deviate from the terms of the temporary custody order imposed by the court, and were heavily influenced by the recommendations of both the custody evaluator and the guardian ad litem. In this case, therefore, we have relatively high confidence that the custody order was in line with the best interests of the children. Accordingly, we discern no error in the district court’s decision to apply the change-in-circumstances requirement without watering it down to account for the fact that the custody order in question was, technically speaking, stipulated.

¶21         We are more concerned, however, with the district court’s statement in its written order that, in “high conflict” cases, “the burden to show a material and significant change in circumstances should be higher than normal.” The district court offered no citation to any authority supporting this principle in our case law, and we are aware of none. We take this opportunity to clarify that there is no separate standard that courts are to apply in high-conflict cases when considering whether a substantial change of circumstances is present in the context of a petition to modify. Nevertheless, we are not persuaded that the district court’s statement made a material difference to its analysis in this case. In context, especially after reviewing the court’s oral ruling, we view the court’s statement as simply acknowledging that, in high-conflict divorce cases, parties are perhaps more willing to seek modification more often, and that the danger of “ping-pong” custody awards in those cases is therefore proportionately higher.

¶22         In the end, we are convinced, after a review of the full record, that the district court applied the proper two-step analysis to determine whether a substantial and material change in circumstances occurred here. First, the court analyzed whether, “since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based.” See Hogge, 649 P.2d at 54. Second, the court analyzed whether “those changes are sufficiently substantial and material to justify reopening the question of custody.” See id. Because we conclude that the court applied the proper test, we now proceed to analyze whether the court abused its discretion in its application of that test.

B

¶23         In her petition to modify, Mother pointed to three things that she believed led to a substantial and material change in circumstances. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children have been emotionally abused.” After hearing evidence for a day-and-a-half, the district court concluded that these things did not constitute a substantial and material change in circumstances, finding either that they were occurring, at most, infrequently, or that they had been occurring throughout the litigation and therefore could not constitute a change in circumstances. We conclude that the court did not abuse its discretion in making that determination.

1

¶24         Mother’s first contention was that Father had “been unable to provide a stable home environment” for the children because he had “been evicted from several residences” resulting in the children having to change schools a number of times. In addition, Mother contended that Father had not “had stable employment for the last eight years.” The district court acknowledged that Mother had presented evidence that Father’s “income was questionable and [his] lifestyle was a little bit itinerant.” But the court noted in its oral ruling that this had been the case both “before and after the decree,” and that nothing had changed in this regard. In its written ruling, the court made a finding that it had “not received evidence that there has been a significant and material change in [Father’s] ability to provide the children with a stable home.”

¶25         It is unclear from Mother’s brief whether she even intends to challenge the district court’s factual findings, stating that her “appeal is primarily legal.” But in any event Mother has not carried her burden—if indeed she intended to shoulder that burden—of demonstrating that the court’s factual finding was clearly erroneous. As noted above, Mother alleged as early as 2007—in her pre-decree motion to alter the terms of the court’s temporary custody order—that Father had “moved three times in three years and has not demonstrated stability.” Despite Father’s itinerant nature, the first custody evaluator recommended that primary physical custody be awarded to Father, and the stipulated decree followed that recommendation. Presumably, all of that was taken into account during the litigation that preceded entry of the decree. Moreover, in her own petition to modify filed in 2013, Mother alleged that Father’s employment instability had been an issue “for the last eight years,” dating back to 2005, three years before entry of the decree. Issues that were present prior to the decree, and continue to be present in much the same way thereafter, do not represent a change in circumstances sufficient to justify the reopening of a custody decree. See Utah Code Ann. § 30-3­ 10.4(2)(b)(i) (LexisNexis Supp. 2019) (requiring a “change of circumstance” before reopening a custody decree); see also Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that the rationale behind the change-in-circumstances requirement “is that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed”). In the end, Mother has not shown that the district court’s finding—that Father’s employment instability and itinerant nature had been present the whole time and therefore did not constitute a substantial change in circumstances—was clearly erroneous.

2

¶26         Mother’s next contention was that Father failed on numerous occasions to facilitate parent-time as required under the divorce decree. The district court found that, while Father may have committed occasional violations of the terms of the decree, “[t]he court has not received evidence that any denial of physical visitation on the part of [Father] was systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.

¶27         Ordinarily, when one parent commits a violation of the terms of a divorce decree, the other parent’s remedy lies in contempt. See Utah Code Ann. §§ 78B-6-301(5), -310 (LexisNexis 2018) (categorizing “disobedience of any lawful judgment [or] order” as “contempt[] of the authority of the court,” and authorizing courts to sanction violators); see also, e.g., Clarke v. Clarke, 2012 UT App 328, ¶¶ 24–31, 292 P.3d 76 (resolving one parent’s request for contempt sanctions against the other for asserted violations of a custody order). In most cases, violations of a custody order by one party will not constitute the type of substantial and material change in circumstances that will justify reexamining the propriety of the order. But if the violations are so numerous and pervasive that it becomes evident that the custody arrangement is “not functioning,” then a change in circumstances may have occurred. See Moody v. Moody, 715 P.2d 507, 509 (Utah 1985) (“[T]he nonfunctioning of a joint custody arrangement is clearly a substantial change in circumstances which justifies reopening the custody issue.”); see also Huish v. Munro, 2008 UT App 283, ¶ 13, 191 P.3d 1242 (same).

¶28         In this case, the district court, after hearing Mother’s evidence, made a factual finding that the evidence of Father’s potentially contemptuous behavior was not so overwhelming as to render the decree unworkable. The court noted that the parties had been “in constant conflict since their separation and likely before,” and that they were “still at war” thirteen years after their separation. The court found that, while Father may have violated the decree with regard to parent-time on a few occasions, Father’s violations were not “systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.

¶29         As noted above, it is unclear if Mother even intends to challenge the district court’s factual findings, but in any event she has not demonstrated clear error here. The district court’s finding that the decree had not been rendered unworkable as the result of Father’s violations was supported by, among other evidence, the recommendation of the court-appointed GAL, who expressed the view that the custody arrangement was working well enough and should remain unchanged, and that “the children have maintained throughout these proceedings that they are happy with the current arrangement.” Mother has not demonstrated that the district court’s determination about the decree’s workability was clearly erroneous.

3

¶30         Mother’s final contention was that Father had “become violent with other people and the children have been emotionally abused.” After hearing the evidence, the district court found insufficient evidence that Father had been violent or that he had emotionally abused anyone. In her brief, Mother makes no serious effort to challenge this factual finding, and therefore we are unable to find any error therein.

4

¶31         Given that Mother has not mounted a successful challenge to any of the district court’s factual findings, all that remains is for us to examine whether, given these findings, the court abused its discretion in determining that no material and substantial change in circumstances had occurred. See Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. And on this record, we have no trouble concluding that the court did not abuse its discretion in making that determination. Many of the issues identified by Mother in her petition—such as Father’s unstable employment and frequent change of residence—had been present from the outset of this case, and were present before the decree was entered; such ever-present conditions cannot constitute a change in circumstances sufficient to reopen a custody decree. Any issues Father had with complying with the terms of the decree were apparently not egregious or pervasive enough to render the custody arrangement unworkable. And the district court, after listening to a day-and-a-half of evidence, did not hear any evidence that Father had acted violently or abusively toward anyone.

¶32         Under these circumstances, the district court did not abuse its discretion in concluding that Mother had not carried her burden of demonstrating a change in circumstances that was substantial and material enough to justify reexamining the parties’ longstanding custody arrangement. Because Mother did not satisfy the first part of the statutory test for obtaining a modification of a divorce decree, the district court did not err by dismissing her petition.

CONCLUSION

¶33         For all of the foregoing reasons, we affirm the district court’s dismissal of Mother’s petition to modify.

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

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Click to listen highlighted text!