Stephens v. Stephens

TOOMEY, Judge

Opinion Third District Court, West Jordan Department
The Honorable James D. Gardner
No. 104400395 Jennifer R. Jackson, Attorney for Appellant and Cross-appellee Angilee K. Dakic and Amy F. Hugie, Attorneys for Appellee and Cross-appellant JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred. TOOMEY, Judge: ¶1 Bridget Nicole Stephens (Mother) appeals the district court's judgment on a petition to modify a decree of divorce, and Donovan Todd Stephens (Father) cross-appeals the same judgment. Mother argues that the district court erred when it awarded Father sole physical custody of the parties' minor child (Child), asserting the modified decree met the statutory requirements for joint physical custody. Mother further argues the court erred when it calculated Mother's child support obligation on the award of sole physical custody to Father, asserting it should have used a joint physical custody worksheet. Father cross-appeals, asserting the district court erred when it denied his requested relief for parent-time modification. We affirm with respect to the sole physical custody designation and the child support award. But we reverse and remand for the district court to make additional findings with respect to the parent-time award and, after doing so, to adjust its order as necessary.

¶2 Father and Mother divorced in 2011. The parties were awarded joint legal custody of Child, but Father was awarded sole physical custody subject to Mother's liberal parent-time. Under the parent-time arrangement, Child stayed overnight with Mother for more than thirty percent of the year. Because Mother was unemployed, her child support obligation was calculated based on an imputed minimum wage. ¶3 Four years later, Father filed a petition to modify the divorce decree, asserting that a substantial and material change of circumstances supported a reduction in Mother's parent-time and an increase of Mother's child support obligation. As to parent-time, Father claimed Mother had abused Child. The abuse allegation was based primarily on a supported finding of child abuse by the Utah Division of Child and Family Services (the DCFS Finding). With regard to the child support issue, Father claimed Mother had returned to work and asked for a modification based on her new income. ¶4 Mother answered the petition, denying the abuse allegation. Mother also filed a counter-petition to modify, asking for an award of joint physical custody that designated her as primary custodian. Mother's counter-petition alleged Father did not communicate with her about Child, Father "failed to work with [Child]" regarding Child's learning difficulties, and that she was "concerned about [Child's] nutrition and hygiene while in [Father's] custody." Mother acknowledged her new employment personal therapist and the reunification therapist "that a step-up and reunification plan [were] in the best interest of [Child]." Additionally, the district court ordered that Child continue personal therapy, and that Mother and Child continue reunification therapy until the reunification therapist determined, "with input from [Child]," it was no longer necessary. The court also conditioned the return to the original parent-time arrangement, noting that if Mother engaged in additional episodes or incidents of violence or physical abuse against Child, the step-up plan would cease immediately and supervised visits would be restored in accordance with the terms of the temporary orders. ¶18 The court also modified the parties' child support obligations to an amount consistent with Mother's new income, noting that "[b]oth parties acknowledged that there was a material change in circumstances related to [Mother's] employment status and this was not a contested issue in this case." It made the calculation based on the sole physical custody calculation in Utah Code section 78B-12-205. ¶19 Mother appeals and Father cross-appeals.

¶20 Mother contends the district court erred in two respects. She argues it should not have granted sole physical custody to Father, asserting the modified order satisfies Utah's statutory definition of joint physical custody. Next, Mother contends the court erred by not using a joint physical custody child support worksheet to calculate her obligation. "A [district] court's interpretation of a statute is a question of law that we review for correctness." Spall-Goldsmith v. Goldsmith IV, 2012 UT App 302, ¶ 6, 288 P.3d 1105 (quotation simplified). Otherwise, this court reviews the district court's decision whether to modify a custody award and an award of child support for an abuse of discretion. Woodward v. Woodward, 709 P.2d 393, 394 (Utah 1985). ¶21 Father cross-appeals, contending the district court erred in failing to modify the parent-time order and award Mother only the statutory minimum amount of parent-time, as requested in his petition to modify. He argues "the [district] court's findings supporting denial of [Father's requested] parent-time modification are not clear and are contrary to the evidence." This court reviews a district court's parent-time determination for abuse of discretion. See Trubetzkoy v. Trubetzkoy, 2009 UT App 77, ¶ 7, 205 P.3d 891.

¶22 Mother argues the district court erred by awarding Father sole physical custody. We disagree. Mother failed to show a substantial and material change in circumstances justifying a change to the custody designation. Thus, the original custody order appropriately remained unchanged in that regard. ¶23 Under Utah law, there is "neither a preference nor a presumption for or against joint physical custody or sole physical custody." Utah Code Ann. § 30-3-10(5) (LexisNexis Supp. 2017). Instead, "the court and the family [have] the widest discretion to choose a parenting plan that is in the best interest of the child." Id. Joint physical custody "means the 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," id. § 30-3-10.1(3)(a), in appropriate cases. ¶24 Once the district court makes an initial custody determination, it "has continuing jurisdiction . . . and may later make such changes in custody provisions as it determines are ¶27 Further, the parent-time modifications the court made did not require an alteration of the physical custody designation. The district court granted, in part, Father's petition to modify parent-time. First, it implemented the temporary order, greatly limiting Mother's parent-time. Next, the court ordered the step-up plan, allowing Mother to regain the parent-time she was awarded in the original divorce decree so long as she satisfied the plan's conditions. Those modifications, however, did not necessarily affect the award of custody as designated in the original divorce decree. The court specifically found the custody arrangement as entered in the original decree remained in Child's best interest and would remain in place. Because Mother did not establish a change in circumstances warranting reconsideration of the issue, the original order remained unchanged regarding Father's sole physical custody designation and the court was not required to modify the physical custody designation.

¶28 Mother next argues the district court failed to comply with Utah's statutory child support guidelines when it used a sole physical custody worksheet to calculate her child support obligation. We disagree. Because the step-up parenting plan refraining from engaging in further abusive behavior toward Child. Thus, at the time the court entered the order, Mother was not entitled to overnight parent-time with Child for more than thirty percent of the year. Accordingly, the modified decree did not meet the requirements for joint physical custody under Utah Code section 78B-12-102(15), and the district court was not required to use a joint physical custody worksheet to calculate Mother's child support obligation.

¶31 Father argues the district court erred in denying his requested relief for parent-time modification. He contends "the district court's findings supporting denial of [his requested] parent-time modification are not clear and are contrary to the evidence." We agree that the court's findings in support of the parent-time modification were not sufficiently detailed to inform the parties of the court's reasoning or facilitate meaningful appellate review. See Lay v. Lay, 2018 UT App 137, ¶ 28 (concluding that "the district court's findings were inadequate to disclose the steps by which the court reached its ultimate conclusion" regarding modification of a parent-time agreement). ¶32 "[District] courts have continuing jurisdiction to consider motions to modify dealing with child custody and [parent-time]," Kallas v. Kallas, 614 P.2d 641, 645 (Utah 1980), and to make such modifications "as [they] determine[] are reasonable and necessary for the welfare or best interests of the child," Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982) (quotation simplified); see also Utah Code Ann. § 30-3-5(3) (LexisNexis Supp. 2017) (recognizing the district court's continuing jurisdiction over child custody and child maintenance determinations). ¶33 The district court's decision to modify a decree of parent-time "must involve two separate steps." Hogge, 649 P.2d at 54. First, the court must find that the petitioner has made "some restrictions and conditions to Mother's parent-time, it is not "reasonable to assume that the [district] court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made." Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified); see also Hall v. Hall, 858 P.2d 1018, 1025 (Utah Ct. App. 1993) (determining that "missing findings can be viewed as harmless error" where "the undisputed evidence clearly establishes the factor or factors on which findings are missing," or where "the absent findings can reasonably be implied" (quotation simplified)). ¶44 In sum, the district court's findings were "inadequate to disclose the steps by which the court reached its ultimate conclusion" that Mother's relationship with Child had improved, making the six-week step-up plan in Child's best interest. See Lay, 2018 UT App 137, ¶ 28. We thus remand to the district court to make additional findings with respect to whether the modified parent-time plan is in Child's best interest and to adjust its order as may be appropriate, given those findings.

¶45 We conclude the district court did not err in awarding sole physical custody to Father. We also conclude it did not err in using a sole physical custody worksheet to calculate Mother's child support obligation. But we conclude the district court did not provide adequate findings to support its ultimate parent-time award and therefore remand to the district court to make additional findings with respect to whether the modified parent-time plan is in Child's best interest. The court may, in its discretion, allow additional evidence with regard to parent-time. And with the additional findings made, the court shall adjust its order as may be appropriate.