Moody v. Moody ( 1985 )

HALL, Chief Justice:

Kristen Fonnesbeck Moody, defendant, appeals an order of the district court modifying a divorce decree to award custody of the parties’ two minor children to their father, plaintiff Larry L. Moody. We affirm.

Under a divorce decree dated September 1981, and by stipulation of the parties, the parties were granted joint custody of their son, then age 5, and their daughter, age 2. Under the terms of the stipulation and the divorce decree, the children were to live with defendant for nine months of the year and with plaintiff the remaining three months of the year, with each party having reasonable rights of visitation during the time the children were living with the other.

From the time of the divorce until about May 1983, however, the children lived continuously with defendant, and plaintiff visited them two days per week on his days off work. In February 1983, plaintiff remarried. In May 1983, the children went to live with plaintiff and his wife.

In June 1983, without defendant’s knowledge or consent, plaintiff took the children to Dr. Liebroder, a psychologist, for evaluation. Dr. Liebroder’s report prompted plaintiff to petition the district court to transfer custody to him, alleging that there had been a substantial change in the circumstances on which the previous custody award was based. In an affidavit supporting his petition, plaintiff stated, among other things, that since the time of the divorce, defendant had become increasingly emotionally unstable and was unable to properly care for the children, and that plaintiff had remarried and could provide a stable home for the children. By stipulation of the parties, the court ordered that custody evaluations be performed on the parties and the children.

In November 1983, defendant petitioned the court to award custody to her. In an affidavit supporting her petition, she stated that there had been several substantial changes of circumstance since the divorce, including the facts that plaintiff had changed jobs and now had only weekends off work, that “the constant changing of the children has resulted in a circumstance which is not in their best interests,” and that “the parties have encountered difficulties from time to time in managing the children’s time jointly.”

At trial in February 1984, based on the parties’ pleadings and affidavits and the custody evaluation reports, the court found that there had been a “prima facie” showing of a change in circumstances sufficient to warrant reopening the custody issue. Trial proceeded on the issue of which custody arrangement was in the best interests of the children. In response to defendant’s objection, the court excluded from evidence the testimony of Dr. Liebroder. The written reports of Drs. Elizabeth Stewart and Kim Peterson, the psychologist and social worker who had performed the court-ordered custody evaluations, were received in evidence. Attached to Dr. Peterson’s report was the report of Dr. Liebroder. Both Dr. Stewart and Dr. Peterson testified that both parties were fit and proper persons to be awarded custody of the children, but recommended that custody be awarded to plaintiff, based on his more effective parenting style.

The court found that “communications between the parties are difficult and strained and that difficulty in communication has caused problems for the children,” that “[ejach of the parties realized that the joint custody established in the Decree was not working,” and that “joint custody with the constant transfer of the children from one home to the other had an adverse impact on the children.” Accordingly, the court ordered that joint custody be terminated and awarded custody to plaintiff.

Defendant contends that the evidence does not support the trial court’s finding of a substantial change in circumstances and that the court erroneously considered evidence on the custody issue before having found such a change in circumstances.

In Hogge v. Hogge,¹ this Court adopted a bifurcated procedure for determining whether to modify a custody award. The first step of the Hogge procedure requires a determination of whether there has been a change in the circumstances on which the previous custody award was based that is sufficiently substantial and material to justify reopening the custody question.² Only if such a change is found may the court proceed to the second step of the Hogge procedure, a consideration of which custody arrangement will serve the best interests of the child.³ During the initial step, the court may receive evidence only as to the nature and materiality of any changes in the circumstances on which the previous award was based.⁴

Contrary to defendant’s contention, the pleadings and supporting affidavits in this case sustain the trial court’s finding of a substantial change in circumstances in accordance with Hogge. First, in their respective petitions to modify the joint custody award, each party alleged that there had been a substantial change in circumstances since the award was made. More importantly, the parties agreed, and their affidavits established, that the joint custody arrangement was not working and had had an adverse effect on the children. Defendant’s statements in her affidavit that “the constant changing of the children has resulted in a circumstance which is not in their best interests” and that “the parties have encountered difficulties from time to time in managing the children's time jointly” clearly demonstrate problems with the joint custody arrangement. Although plaintiff did not directly so state, an inference that the parties were no longer effectively communicating or cooperating in matters concerning the children and that the custody arrangement was detrimental to the children may fairly be drawn from the facts asserted in plaintiff’s affidavit. Thus, although each party ascribed a different cause to the breakdown of the joint custody arrangement, both parties ultimately agreed with the essential fact that the joint custody award was not functioning.

In Becker v. Becker;⁵ this Court held that, to justify reopening the custody question, the change in circumstances must have a “material relationship to and substantial effect on ... the functioning of the presently existing custodial relationship.” ⁶ Thus, the nonfunctioning of a joint custody arrangement is clearly a substantial change in circumstances which justifies reopening the custody issue.

Defendant also contends that, in receiving the custody evaluation reports and relying on them in making its threshold finding of a substantial change in circumstances, the trial court considered evidence relevant to the custody issue contrary to Hogge. Implied in defendant’s argument is the premise that the custody evaluation reports were, not relevant to the issue of whether there had been a substantial change in circumstances. However, that was not the case. A substantial portion of both reports strongly corroborated the parties’ assertions that the joint custody arrangement was not working and was detrimental to the children. Thus, the reports were relevant to a determination of whether there had been a change in circumstances and the significance of the change and the trial court did not err in considering them in the initial phase of the Hogge proceeding.

Finally, defendant contends that there was insufficient evidence to support the trial court’s determination that awarding custody to the father was in the best interests of the children. It is apparent from the court’s statement to the parties in rendering its decision, that the court relied heavily on the testimony of Drs. Stewart and Peterson, both of whom recommended that custody be granted to the father.⁷ Given this expert testimony, the court’s ruling was based on ample evidence and was within the broad discretion granted the trial court in divorce proceedings.⁸

Affirmed.

HOWE, J., concurs.

1 . Utah, 649 P.2d 51 (1982).

2 . Id. at 54.

3 . Id.

4 . Id.

5 . Utah, 694 P.2d 608 (1984).

6 . Id. at 610.

7 . Defendant contends that the report and testimony of Dr. Peterson was tainted by his knowledge of Dr. Liebroder’s report. However, no objection to Dr. Peterson’s report or testimony on this ground was made at trial, and defendant’s attorney cross-examined Dr. Peterson regarding his knowledge of Dr. Liebroder’s report in an apparent attempt to impeach Dr. Peterson’s testimony. By failing to object, defendant failed to preserve the issue on appeal. See Utah R.Evid. 103(a).

8 . Jorgensen v. Jorgensen, Utah, 599 P.2d 510, 511 (1979).