Shioji v. Shioji

671 P.2d 135, 1983 Utah LEXIS 1154

• Court: Utah Supreme Court
• Decided: September 13, 1983
• Docket: 18278
• Status: Published

Opinions

OAKS, Justice:

This appeal challenges an order changing the custody of minor children. We vacate the order because it is not accompanied by the necessary findings.

A divorce decree granted the mother custody of the parties’ two minor daughters, ages 4 and 8. Two months later, the father sought modification of the decree to grant him custody on the grounds that the mother was not giving the children proper care and she was having her boyfriend stay in the home overnight.

At the hearing, held on January 19,1982, both parties testified, along with several other witnesses for each side. The testimony concerned the mother’s care of the children (including her working schedules and babysitting arrangements), the children’s personal and living conditions, and the fact that the mother’s boyfriend was sleeping in the home each weekend. The court then interviewed the children in chambers in a session that was recorded but not transcribed. Immediately thereafter, the court stated that the best interests of thg children dictated that their custody be given to the father. In announcing this decision, the court referred to the fact that the children were being raised in a condition where they were exposed to an illicit relationship and the mother had taught them to lie by stating that the boyfriend slept on the couch. The unsigned minute entry of that date reads as follows: ⅛

It is of great concern to this court, that the children are raised in a condition where the mother would teach them to lie and that it is all right to live immorally. The Court finds that it is in the best interest of the girls that their custody be given to the father, subject to reasonable visitation, every other week-end.

The signed order, entered February 5, contains no finding of a substantial change of circumstances and no finding on the reason for the change of custody. In fact, the order has no findings whatever. It consists simply of a recital of the proceedings and an order that custody be changed.

On February 2, the mother petitioned the court for modification of its order changing custody, alleging that she “[had] since married” and that “she will no longer work and will thus provide continuous care and control in her home” instead of waking the girls to take them to babysitters at 5:00 a.m. At a hearing on February 11, the mother proffered evidence on these subjects, but the court denied the petition on the basis of insufficient grounds to change the order signed February 5. The mother has taken a timely appeal from the change of custody and the subsequent refusal to modify it.

In numerous recent decisions, we have reaffirmed and reemphasized the importance of written findings to support orders modifying important provisions of a divorce decree. E.g., Tuckey v. Tuckey, Utah, 649 P.2d 88, 90-91 (1982); Hogge v. Hogge, Utah, 649 P.2d 51 (1982); Hutchison v. Hutchison, Utah, 649 P.2d 38, 42 (1982); Stoddard v. Stoddard, Utah, 642 P.2d 743, 744-45 (1982); Chandler v. West, Utah, 610 P.2d 1299, 1301 (1980). One of the reasons for this requirement is to explain the basis for the modification so the aggrieved party can determine whether to challenge it and so the appellate court can properly review it on appeal. In an opinion issued after the modification was ordered in this case, we reaffirmed the two-step procedure under which a court hearing a requested change of custody must rule on whether there has been a substantial change of circumstances before the Court reopens and reconsiders the question of the best interests of the child. Hogge v. Hogge, 649 P.2d at 53-54. If the custody provisions are modified, both subjects must be supported by appropriate findings.

Although the court’s statements on the record and the content of the minute entry are strongly suggestive of at least some of the reasons for the court’s opinion on the best interests of the children, neither source constitutes a sufficient compliance with the requirement of findings on the two subjects essential to the relief ordered in this case. Such findings are especially necessary prior to appellate review of a legal question as complex as may be present in this case. See, e.g., B. Hafen, “The Constitutional Status of Marriage, Kinship, and Sexual Privacy — Balancing the Individual and Social Interests,” 81 Mich.L.Rev. 463 (1983); Note, “Modification of Child Custody Predicated on Cohabitation of the Custodial Parent: Jarrett v. Jarrett,” 1981 B.Y.U.L.Rev. 169; Annot., 100 A.L.R.3d 625 (1980).

The order of February 5 is vacated, and the case is remanded for the entry of findings consistent with the two-step procedure specified in Hogge v. Hogge, supra.

No costs awarded.

HALL, C.J., and STEWART and HOWE, JJ., concur.