Trial Court Must Articulate a Reasonable Basis and Adequate Findings When Rejecting the Expert Conclusions

Woodward v. La Franca, 2013 UT App 147 Utah Court of Appeals Court June 13, 2013

Father filed a Petition to Modify requesting custody.  Mother engaged a therapist in an attempt to obtain evidence against Father and to confirm allegations of abuse.  When the therapist failed to provide evidence, Mother obtained a second therapist who also determined that Mother’s allegations were unfounded.  At the Rule 106 hearing, Father was awarded custody because of mother’s actions of having the child constantly interrogated and because of her coaching the child.  The court appointed a special master and a custody evaluator. Mother objected.  At the objection hearing, the therapists, special master and a custody evaluator agreed with the commissioner’s recommendation. The court, however, found that each expert was either unpersuasive and/or not credible and sustained the objection and returned custody to Mother. Father Appeals.

Court of Appeals found that the trial court must articulate a reasonable basis and adequate findings when rejecting the expert conclusions and failure to do so is an abuse of discretion.  The Court of Appeals then reviewed the testimony and criticized the trial court’s summary dismissal of important evidence of coaching and possible mental illness of Mother.

The trial court further erred when finding that because Mother is an acceptable parent, she should retain custody.  The Court pointed out that a best interest evaluation gives no preference to status quo, but must evaluate which parent is the more acceptable parent.  Because the court failed to make adequate findings as to the expert testimony, and because it improperly evaluated the best interest, this case was Reversed and Remanded.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/woodward061313.pdf 

Court Can Modify Decree without Evidentiary Hearing. Commissioner Cannot Modify Property Agreements Under Rule 106.

Gullickson v. Gullickson, 2013 UT App 83 Utah Court of Appeals April 4, 2013

Wife intended to relocate and filed a Petition to Modify.  Husband opposed Wife’s removal of the child from Utah.  Wife’s Petition to Modify requested the Decree be modified to accelerate the sale of the marital home.  At the hearing, the Commissioner permitted the relocation and recommended modifying the Decree to allow Wife to rent out the home or, accelerate the sale of the home.  Father objected arguing that such a modification was not permitted by URCP 106 and requested an evidentiary hearing.  The Court overruled the objection and enforced commissioner’s order.  Father appeals.

The Court of Appeals found that Father was entitled an evidentiary hearing as to property and that no modification should be ordered without compelling reasons.  Further, the recommendation violated Rule 106.  Once a party demonstrates a circumstance not contemplated by the decree, the commissioner is no longer interpreting but modifying.  Further, the Court cannot modify a property award without an evidentiary hearing.  Court of Appeals vacated and remanded this issue.

As to relocation, the Court of Appeals advised that in relocation hearings, trial courts should address parent-time and transportation.  On objection, the trial court refused to hear witnesses relocation testimony. The Court of appeals affirmed on this issue and stated parties are limited by Rule 106, which limits the evidence on objection to the evidence that was presented before the Commissioner.

Husband also appealed the trial court’s refusal to hear the Order to Show Cause which commissioner had reserved ruling.  Court of Appeals found trial courts can choose to hear any matter, but is not required to if the issue has been reserved by Commissioner.

Davis Dissents as to the issue of review of objections by Judge—believes judge should have reviewed it.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/gullickson040413.pdf

Relocation Clauses in Decrees that Change Custody are Unenforceable

Elison v. Elison, 2011 UT App 272, Utah Court of Appeals August 18, 2011

Father and Mother were divorced in November 2004.  The stipulated Decree of Divorce included a provision that transferred custody to Father if Mother relocated outside of Utah.  Mother moved and the District Court enforced the decree and the custody transferring provision.  Mother Appealed.

The Court of Appeals found that enforcement of status quo and best interests is the intent of Rule 106 rather than enforcement of the decree.  Rule 106 provides that the Decree that is to be modified stays in effect until the modification is complete.  The court may only change custody or parent-time to address and immediate and irreparable harm.

The Court read this rule to mean that during a modification action, the children should remain with the same primary custodian, unless remaining would threaten immediate and irreparable harm.  Reversed and Remanded

Full opinion available at: http://www.utcourts.gov/opinions/appopin/taylor081811.pdf