Hanson v. Hanson

2009 UT App 365, 223 P.3d 456, 645 Utah Adv. Rep. 25, 2009 Utah App. LEXIS 390, 2009 WL 4680437

• Court: Court of Appeals of Utah
• Decided: December 10, 2009
• Docket: 20070575-CA
• Status: Published

Opinions

MEMORANDUM DECISION

BENCH, Judge:

T1 Allison Sara Hanson (Mother) appeals the trial court's modification of a ecusto-dy agreement granting custody of the children to Chad Jason Hanson (Father) if Mother refused to move back to Utah from Louisiana and reside "within a reasonable distance ... of [Father's] present residence." Mother specifically challenges the trial court's determination that modification of the custody agreement was in the children's best interests.¹ We affirm.

In determining whether custody modification is in a child's best interests, courts may consider a variety of factors with the weight given to each factor "rang[ing] from the possibly relevant to the critically important." Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. See generally Utah Code Ann. § 80-8-104 (Supp.2009) (stating the statutory guidelines for custody modification and incorporating sections 80-3-10 and 30-3-10.2(2) for factors the court must consider in determining the best interests of the child). "At the critically important end of the spectrum ... lies continuity of placement ... [with the child's primary caregiver, which] should be disturbed only if the court finds compelling cireumstances." Hudema, 1999 UT App 290, ¶ 26, 989 P.2d 491 (citing Elmer v. Elmer, 776 P.2d 599, 604 (Utah 1989); Davis v. Davis, 749 P.2d 647, 648 (Utah 1988); Paryzek v. Paryzek, 776 P.2d 78, 82 (Utah Ct.App.1989)). Otherwise, "where a particular factor falls within the spectrum of relative importance" is within "the trial court's discretion ... based on the facts" of the case. Id.

13 One compelling cireumstance "relevant to ... the child's best interests" is "interference with visitation." See Smith v. Smith, 798 P.2d 407, 411 (Utah Ct.App.1990); see also Sigg v. Sigg, 905 P.2d 908, 917 (Utah Ct.App.1995) (concluding that interference with visitation was an appropriate basis for custody modification). See generally Utah Code Ann. § 30-8-10(1)(a@)@i) (Supp.2009) ("In determining any form of custody, the court shall consider the best interests of the child and ... which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noneustodial parent."); id. § 30-3-10.2(2)(c) (2007) ("In determining ... the best interest of a child ... the court shall consider ... whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent."). "The best interests of a minor child are promoted by having the child respect and love both parents[, which includes flostering a child's relationship with the noncustodial parent.... Interference by the custodial parent with a noneustodial parent's visitation rights ... may clearly be contrary to a child's best interests." Smith, 798 P.2d at 411 (citations and internal quotation marks omitted). In Sigg v. Sigg, 905 P.2d 908 (Utah Ct.App.1995), the children's mother had consistently interfered with the father's right to visitation with his children. See id. at 910-12. Although the mother had been the children's primary caregiver, the trial court modified the custody arrangement, giving custody to the father. See id. at 912. The trial court there found that the father would be more likely to facilitate visitation whereas the mother, as evidenced by her prior actions, would not. See id. This court concluded that the trial court was well within its broad discretion to modify the custody arrangement and "endorse[d] the trial court's goal of arranging custody in a way that fosters a relationship with both parents." Id. at 917.

T4 Here, Mother argues that the trial court lacked a compelling reason for removing the children from their primary caregiver.² In so arguing, Mother mischaracterizes the trial court's decision as being based only upon the children's "close proximity to extended family in Utah" and infers that the court "believed the children's domicile in [Utah] is so essential to their welfare that not residing there would be more detrimental than separating them from their life-long primary caregiver." In support of her argument, Mother relies heavily on Larson v. Larson, 888 P.2d 719 (Utah Ct.App.1994). In Larson, this court reversed a trial court's custody modification, concluding that allowing children to remain in their life-long community and maintain a relationship with their extended family is insufficient justification for removing children from the custody of their primary caregiver. See id. at 722, 725-26. Notably, in Larson there was no evidence of interference with visitation; in fact, the custodial parent had "been extremely flexible in coordinating [the noneustodial parent's] visitation." Id. at 725. This case is therefore distinguishable from Larson because the trial court here, as in Sigg, "arrange[d] eustody in a way that fosters a relationship with both parents." See Sigg, 905 P.2d at 917.

15 The trial court issued a thorough and detailed memorandum decision, wherein it made numerous findings³ Among those are the following findings as to how Mother had interfered with Father's visitation with his children:

14. [Mother] openly acknowledge[d] under oath ... that she has deprived [Father] of his visitation ... when in her mind [he] became unreasonable. Further, [Mother] admitted under oath that she has not given [Father] the visitation rights set forth in their Decree and she has not granted him visitation rights [as required by statute].

15. The Child Custody Evaluation notes that [Mother] has been somewhat obstruc-tionistic about [Father] visiting with his children. [Mother] has made it difficult for [Father] to have his visitation . ...

16. [Mother] admits she has refused to pay the travel costs required of her in the Decree to permit [Father] to have his visitation/parent time. [Mother's] refusal/failure to comply with the Decree, which specifically ordered [Mother] to assume all costs of out-of-state visits, has occurred on more than one occasion.

17. At least one of the children reported [Mother] hanging up on [Father] when the children attempted to talk to him.

19. [Mother] makes the children feel guilty about visiting [Father]. The children have reported that [Mother] "feels sad" about them ... visiting [Father].

20. [Mother] has eavesdropped in on conversations and telephone calls between [Father] and the children.

21. When [Father] has visitation with the children in Utah, [Mother] frequently calls or sends text messages to the minor children, including during the periods of what are to be uninterrupted visitation. In addition, sometimes as a condition of allowing [Father] to have visitation in the first 'place, [Mother] has required her parents (grandparents) to get visitation with the children prior to [Father] getting to exercise his visitation with the children.

28. The Court finds the conduct by [Mother] has affected the relationship between [Father] and the children.

The trial court concluded that "whether conscious or not, [Mother] has used distance to diminish ... [the children's] relationship with ... [FJather" and "will continue to use the realities of physical separation to subtly, but inexorably, impact [Father's] relationship with the children."

T6 The trial court also found that Father would not interfere with visitation the way Mother had because he had not "denied or attempted to limit the[] calls and messages by [Mother] or her parents' visitation, ... demonstrat[ing] that he has not and would not hamper [Mother's] contact with the children." The trial court concluded that "[Father] will be better than [Mother] ... [at offering] the children meaningful relationships with both parents, grandparents and extended family[, including] their half-brother" and that "[Father] is the parent who is more likely to work to maintain a strong relationship with each parent."

T7 The trial court determined that Mother had used her distance from Utah as a way of frustrating Father's visitation whereas Father would be "the parent most likely to allow frequent and continuing contact with the non-custodial parent." Accordingly, the trial court ordered that if Mother would return to Utah to more easily facilitate visitation, she could maintain eustody; but if Mother refused to return to Utah, custody would then go to Father. In so ordering, the court indicated that if Mother would facilitate visitation, it would be in the children's best interests to remain with Mother. Yet the court also recognized that stability and continuity had to yield to the children's best interests of maintaining a relationship with Father and Mother. Thus, the trial court properly exercised its broad discretion "to arrange custody in a way that fosters a relationship with both parents." See Sigg, 905 P.2d at 917.

T8 Accordingly, we affirm ⁴

9 I CONCUR: PAMELA T. GREENWOOD, Presiding Judge.

1 . "Before modifying a custody order, the court conducts a bifurcated inquiry to determine, first, if there has been a substantial and material change in the circumstances upon which the award was based, and, if so, whether a modification is in the best interests of the child." Hudema v. Carpenter, 1999 UT App 290, 1 22, 989 P.2d 491. Here, Mother does not challenge the trial court's conclusion that a material change had occurred, based primarily on the fact that Mother had moved from Utah to Louisianaa move not contemplated at the time of the original custody agreement. Further, in cases that involve a stipulated, nonlitigated custody agreement, like we have here, the changed circumstances prong need not be "strictly and rigidly applied" and "should be viewed as a means of promoting the ultimate objective, the overall best interests of the child." See Elmer v. Elmer, 776 P.2d 599, 605, 604 (Utah 1989). Accordingly, we address only the best interests prong herein.

2 . Mother had been the children's primary caregiver during the marriage and after the divorce. When Mother refused to relocate to Utah as required by the trial court's order, Father obtained custody of the children. Mother filed a timely notice of appeal following the trial court's custody modification order. Mother's counsel then filed multiple extensions, resulting in over a year-long delay-a particularly egregious delay considering the time-sensitive nature of a custody case. As a result, Father has been the children's primary caregiver since August 2007. Thus, even if we were to accept Mother's argument and remand to the trial court, the facts would have materially changed regarding which parent is the children's primary caregiver. See generally Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986) {concluding that a factor to consider "in competing child custody claims" is "the identity of the parent with whom the child has spent most of his or her time pending custody determination").

3 . Mother does not challenge the trial court's factual findings.

4 . We deny the parties' requests for attorney fees as both have failed to state a "basis for such an award." See Utah R.App. P. 24(a)(9) ("A party seeking to recover attorney[] fees incurred on appeal shall state the request explicitly and set forth the legal basis for such an award.").