Hirsch v. Hirsch , 41 Utah Adv. Rep. 4 ( 1986 )

HALL, Chief Justice:

The district court modified the decree of divorce of the parties and changed custody of their minor child from appellant (mother) to respondent (father). Appellant challenges the sufficiency of the evidence to support the change of custody.

The parties separated in the spring of 1983 and were divorced in May 1984. Appellant has changed her place of residence seven times since the divorce, one being outside the state. She is married again, and her husband has experienced seasonal unemployment and difficulty in providing for his four children from a previous marriage. During the Christmas season, it has been necessary for appellant to accept employment outside the home.

Respondent remains unmarried, but has the full support of his family in caring for the needs of the child. He has a stable work history over the past five or six years and appears to be well settled.

The evidence is in dispute as to which parent the child resided with during the separation of the parties and after the divorce. Appellant’s evidence was that the child resided with her a majority of the time both before and after the divorce. In contrast, it was respondent’s evidence that during the period of separation the child remained with him, and following the divorce the child continued to reside with him, although the decree of divorce placed custody in appellant.

The court appointed an expert to conduct a custodial evaluation. He testified that inasmuch as the child had resided with his father eighty to ninety percent of the time, he was of the opinion that the child should be placed in the custody of respondent.

Appellant retained her own expert, who testified that she was in basic agreement with the evaluation made by the court-appointed expert. However, she testified that because the mother is the most significant figure for the child through age six she would recommend placement remain with appellant.

In his memorandum decision, the trial judge found both parents to be capable of caring for the child. The court concluded that appellant’s frequent changes of residence and her placement of the child with his father a majority of the time constituted a change of circumstances and that it was in the best interests of the child that he live with his father, subject to reasonable and liberal visitation rights.

U.C.A., 1953, §§ 30-3-5(3) and 30-3-10 (RepLVol. 3C, 1984 ed. & Supp.1986) confer continuing jurisdiction on the trial court over the subject matter of child custody and support, and sanction changes in custody provisions as determined to be reasonable and necessary for the welfare and best interests of the child. The trial court is afforded particularly broad discretion in the area of child custody. A determination of the “best interests of the child” turns on factors which the trial court is best able to assess, and only when the action taken by the trial court is so unjust as to constitute an abuse of discretion should this Court substitute its own judgment.¹

In this case, the trial court appropriately applied the standard for reviewing a change of custody as pronounced by this Court in Hogge v. Hogge.² Application of the Hogge standard requires that the trial court first determine whether there has been a substantial and material change in circumstances which justifies reopening the question of custody.³ Only following an affirmative determination of that issue may the court then proceed to decide whether the requested change in custody will best serve the welfare and interests of the child.⁴

There is an ample evidentiary basis to support the factual determinations made by the trial court in this case. The fact that appellant did not assume the role of the custodial parent following the divorce constitutes a material change of circumstances which warrants the reopening of the question of custody. Particularly is this so in light of the fact that respondent did assume the role of custodial parent and has provided the child with a permanent residence and a stable home life. The child is now of school age and enrolled in school, has gained friends, and has the full support of respondent’s family. By placing the child in the custody of respondent, the trial court enhanced the unique bond which exists between respondent, his family, and the child. In so doing, the court served the best interests of the child.

Appellant relies upon Chase v. Chase⁵ for the proposition that she cannot be deprived of custody in the absence of a finding that she is “immoral, incompetent, or otherwise unqualified.” However, Chase does not foreclose a determination of the best interests of the child. In fact, the Court in that case duly considered the best interests of the child in reaching its conclusion that the mother’s leaving the child with his grandmother or a nursing home while she worked was not inimical to his welfare and that there was no substantial or compelling reason to deprive her of custody.⁶ The facts in Chase axe simply inap-posite to the facts of this case. Furthermore, Chase was decided under U.C.A., 1953, § 30-3-10 (RepLVol. 3, 1969 ed.), which was amended in 1969 to delete the provision which permitted an award of custody to the father upon a finding that the mother was immoral, incompetent, or an otherwise improper person.⁷ As rewritten, the section required that courts consider the best interests of the child, the past conduct and demonstrated moral standards of each of the parties, and the presumption that the mother was best suited to care for young children.⁸ The section was further amended in 1977 to delete any natural presumption in favor of the mother.⁹

The judgment of the trial court is affirmed. No costs awarded.

STEWART and HOWE, JJ„ concur.

1 . Jorgensen v. Jorgensen, 599 P.2d 510, 511-12 (Utah 1979).

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

3 . Id. at 54.

4 . Id.

5 . 15 Utah 2d 81, 387 P.2d 556 (1963).

6 . Id. at 82, 387 P.2d at 556.

7 . Family Court Act, ch. 72, § 7, 1969 Utah Laws 327, 330.

8 . U.C.A., 1953, § 30-3-10 (Repl.VoI. 3, 1969 ed., Supp.1969).

9 . Equalization of Domestic Relations Laws, ch. 122, § 5, 1977 Utah Laws 562, 564. See also U.C.A., 1953, § 30-3-10 (Repl.VoI. 3C, 1984 ed.).