Peeples v. Peeples

2019 UT App 207THE UTAH COURT OF APPEALS
ADAM LEGRANDE PEEPLES,
Appellee,
v.
ANNALEISE T. PEEPLES,
Appellant.
Opinion
No. 20180713-CA
Filed December 19, 2019
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 044901980
D. Brian Boggess, Attorney for Appellant
Adam L. Peeples, Appellee Pro Se
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
HARRIS, Judge:
¶1 Annaleise T. Peeples (Mother) asked the district court to
modify her divorce decree to give her sole custody of her two
teenage daughters, but the district court refused, determining
that Mother had failed to demonstrate any substantial change in
the circumstances underlying the original decree. Mother now
appeals the district court’s order dismissing her petition to
modify, and we affirm.
BACKGROUND
¶2 In 2004, after about three-and-a-half years of marriage,
Adam Legrande Peeples (Father) filed for divorce from Mother,
citing irreconcilable differences. Around the same time, Father
Peeples v. Peeples
also sought and obtained a protective order against Mother,
asserting that Mother had been physically abusive to him; that
protective order awarded temporary custody of the parties’ two
young daughters to Father. The parties were each represented by
counsel in both the divorce and the protective order
proceedings, and because of the allegations of physical abuse,
the court also appointed a guardian ad litem to represent the
best interests of the two children. Early in the divorce case, all
parties and counsel appeared before a domestic relations
commissioner to discuss the parties’ motions for temporary
orders. Following that hearing, the commissioner entered a
temporary order, later countersigned by the assigned trial judge,
awarding temporary custody of the children to Father, as the
protective order did, with Mother receiving parent-time.
¶3 As the divorce proceedings progressed, the district court
appointed a custody evaluator to make a recommendation to the
court. While the custody evaluation was ongoing, the court
entered a stipulated bifurcated decree of divorce in 2005,
severing the parties’ marital union but reserving all other issues,
including custody and parent-time, for further proceedings. In
2007, Mother filed her first motion for a change in custody,
alleging that the temporary order giving custody to Father was
unworkable because Mother lived in northern Utah County and
Father lived in Salt Lake County, and because Father had
“moved three times in three years and has not demonstrated
stability.” Father objected, and after briefing and oral argument,
the commissioner denied Mother’s motion.
¶4 In October 2007, soon after the commissioner denied
Mother’s motion for a change in temporary custody, the parties
and counsel participated in a settlement conference with the
custody evaluator, at which the evaluator orally shared with the
parties his recommendation: that primary physical custody
remain with Father. At a hearing in December 2007, the guardian
ad litem informed the court that he agreed with the custody
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evaluator’s recommendation. At that same hearing, the district
court set a date for a bench trial to resolve all remaining issues.
¶5 Following the commissioner’s ruling on Mother’s motion
and the court’s decision to set a trial date, as well as the
revelation of the recommendations made by the custody
evaluator and the guardian ad litem, the parties and their
counsel entered into negotiations, and were able to resolve the
remaining issues by stipulation. On April 28, 2008, after more
than four years of divorce litigation, the court entered a
stipulated amended decree of divorce, awarding the parties
“joint legal custody” of the children, but awarding Father
“primary physical custody.” Mother was to have “liberal
parenting time” amounting to five out of every fourteen
overnights during the school year, with the schedule to be
“reversed” during the summertime.
¶6 Perhaps not surprisingly, given the nature and tone of the
four years of pre-decree litigation, entry of the final divorce
decree did not end the divisiveness and discord between these
parties. About a year-and-a-half after the amended decree was
entered, Mother filed a petition to modify, seeking amendments
to the parent-time provisions of the decree. Mother alleged that
circumstances had changed substantially since the entry of the
decree because Father had enrolled the children in year-round
school, rendering certain of the decree’s provisions unworkable,
and because Father had violated the decree in numerous
particulars. Father responded by filing a cross-petition to
modify, seeking sole legal and physical custody. After further
proceedings, the district court declined to modify the original
divorce decree, and denied the parties’ dueling petitions.
¶7 A few years later, in 2013, Mother filed the instant petition
to modify, this time seeking sole physical custody of the
children. Mother asserted that circumstances had changed in
three specific ways. First, she contended that Father had been
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“unable to provide a stable home environment” and find “stable
employment.” Second, she contended that Father had “denied
[her] physical visitation” to which she was entitled pursuant to
the decree. Third, she contended that Father had “become
violent with other people” and that “the children [had] been
emotionally abused.”
¶8 Soon after the filing of Mother’s 2013 petition to modify,
the parties agreed to have another custody evaluation done.
After some procedural wrangling about the identity of the
evaluator, the court finally appointed one, and the new
evaluator interviewed the parties and the children in the fall of
2015. In January 2016, the evaluator shared her recommendation
with the parties’ attorneys: that Mother be awarded sole physical
custody, with Father to receive “standard minimum parent
time.” Soon thereafter, the court appointed a different guardian
ad litem (GAL) to represent the best interests of the children
during the proceedings on the petition to modify.
¶9 From there, it took over a year to get to trial on the
petition to modify; trial eventually took place over two days in
December 2017. Just a few days before trial was to begin, the
GAL issued a report containing his recommendations. Unlike
the custody evaluator, the GAL recommended that the custody
arrangement remain unchanged, with Father retaining primary
physical custody. He explained that, while he understood the
evaluator’s “rationale for recommending a change in custody at
the time [the] evaluation was performed, over two years [had]
passed” since the evaluator conducted her interviews, and he
expressed his view that the information on which the evaluator
based her conclusions was outdated.
¶10 At trial, Mother (as the petitioner on the petition to
modify) presented her case first, and called three witnesses over
the first day-and-a-half of trial: herself, Father, and the custody
evaluator. At the conclusion of Mother’s case-in-chief, Father
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made an oral motion to dismiss the petition to modify, arguing
that Mother failed to “meet her burden to prove that a significant
change in circumstances has taken place.” After hearing
argument from both sides, as well as from the GAL, the court
granted Father’s motion. The court explained that Father’s
relative instability had been constant since before the decree was
entered, and therefore was not a change in circumstances; that
any violations by Father of the terms of the decree could be
resolved in contempt proceedings, and—especially in a case in
which “[t]he parties have been in constant conflict since their
separation and likely before”—that those violations did not rise
to the level of unworkability that would constitute a change in
circumstances; and found that there had not been any violence
or emotional abuse. The court noted that the parties had been
fighting over custody for some thirteen years, and that the
fighting had been fairly constant. The court stated that, in such a
“high-conflict” case, “if anything, the need to show a change in
circumstances [is] even stronger,” and “the need for a permanent
decree . . . that people can rely on . . . is that much greater.” A
few weeks later, the court entered a written order, drafted by
Father’s counsel, dismissing Mother’s petition to modify; that
order contained a provision stating that, “[i]n a high conflict
divorce such as this one, the need for finality is even greater and
therefore the burden to show a material and significant change
in circumstances should be higher than normal.”
ISSUE AND STANDARDS OF REVIEW
¶11 Mother now appeals from the district court’s order
dismissing her petition to modify. When reviewing such a
decision, we review the district court’s underlying findings of
fact, if any, for clear error, see Vaughan v. Romander, 2015 UT App
244, ¶ 7, 360 P.3d 761, and we review for abuse of discretion its
ultimate determination regarding the presence or absence of a
substantial change in circumstances, see Doyle v. Doyle, 2009 UT
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App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. The
district court’s choice of legal standard, however, presents an
issue of law that we review for correctness. See id. ¶ 6.
ANALYSIS
¶12 Mother challenges the district court’s dismissal of her
petition to modify on two general grounds. First, she contends
that the district court employed an incorrect (and overly strict)
legal standard in determining whether circumstances had
changed sufficiently to justify reopening the governing custody
order. Specifically, she asserts that the court did not properly
take into account the fact that the decree at issue was stipulated
rather than adjudicated, and she takes issue with the statement
in the court’s written order that, in “high conflict” cases, the
burden of demonstrating a change in circumstances is “higher
than normal.” Second, Mother contends that the district court
abused its discretion in determining, on the facts of this case,
that no substantial and material change in circumstances existed.
We address each of these contentions in turn.
A
¶13 Under Utah law, petitions to modify custody orders are
governed by a two-part test:
A court order modifying . . . an existing joint legal
custody or joint physical custody order shall
contain written findings that: (i) a material and
substantial change of circumstance has occurred;
and (ii) a modification . . . would be an
improvement for and in the best interest of the
child.
Utah Code Ann. § 30-3-10.4(2)(b) (LexisNexis Supp. 2019).
Because “[t]he required finding of a material and substantial
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change of circumstances is statutory, . . . [n]either this court nor
the supreme court has purported to—or could—alter that
requirement.” Zavala v. Zavala, 2016 UT App 6, ¶ 16, 366 P.3d
422; see also Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553 (“Even
an overwhelming case for the best interest of the child could not
compensate for a lack of proof of a change in circumstances.”).
Thus, “only if a substantial change of circumstances is
found should the [district] court consider whether a change of
custody is appropriate given the child’s best interests.” Wright v.
Wright, 941 P.2d 646, 651 (Utah Ct. App. 1997) (quotation
simplified).
¶14 This statutory requirement that a substantial change in
circumstances be present before a court may modify a custody
order serves two important ends. “First, the emotional,
intellectual, and moral development of a child depends upon a
reasonable degree of stability.” Elmer v. Elmer, 776 P.2d 599, 602
(Utah 1989). We have previously noted the “deleterious effects of
‘ping-pong’ custody awards” that subject children to ever-
changing custody arrangements. See Taylor v. Elison, 2011 UT
App 272, ¶ 13, 263 P.3d 448 (quotation simplified). Second, the
requirement “is based in the principles of res judicata,” as
“courts typically favor the one-time adjudication of a matter to
prevent the undue burdening of the courts and the harassing of
parties by repetitive actions.” Id. (quotation simplified); see also
Zavala, 2016 UT App 6, ¶ 16 (stating that the statutory change-in-
circumstances requirement is “a legislative expression of the
principle of res judicata”).
¶15 The change-in-circumstances requirement is itself
comprised of two parts. In order to satisfy it, “the party seeking
modification must demonstrate (1) that since the time of the
previous decree, there have been changes in the circumstances
upon which the previous award was based; and (2) that those
changes are sufficiently substantial and material to justify
reopening the question of custody.” Hogge v. Hogge, 649 P.2d 51,
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54 (Utah 1982). In this context, however, our case law has drawn
something of a distinction between adjudicated custody decrees
and stipulated custody decrees, recognizing that “an
unadjudicated custody decree” is not necessarily “based on an
objective, impartial determination of the best interests of the
child,” and therefore the res judicata policies “underlying the
changed-circumstances rule [are] at a particularly low ebb.” See
Taylor, 2011 UT App 272, ¶ 14 (quotation simplified). In Zavala,
we clarified that the change-in-circumstances requirement still
applies even in cases involving stipulated (as opposed to
adjudicated) custody orders, although we acknowledged that, in
some cases, “a lesser showing” of changed circumstances may
“support modifying a stipulated award than would be required
to modify an adjudicated award.” See 2016 UT App 6, ¶ 17.
¶16 In this case, the court did not specifically discuss the
distinction our case law has drawn between stipulated and
adjudicated decrees, or the extent to which this decree should be
considered stipulated or adjudicated. The court simply applied
the change-in-circumstances requirement and found it not met
on the facts of this case. In one recent case, we found no error
under similar circumstances. See Erickson v. Erickson, 2018 UT
App 184, ¶ 21, 437 P.3d 370 (declining to reverse a district court’s
determination that no substantial and material change in
circumstances had been shown, despite the fact that the district
court did not specifically consider “the fact that the underlying
custody award was based on a stipulated agreement”).
¶17 But more to the point, we think it unhelpful to view the
adjudicated/stipulated dichotomy as entirely binary; instead, in
assessing how much “lesser” a showing might be required to
satisfy the change-in-circumstances requirement, see Zavala, 2016
UT App 6, ¶ 17, courts should examine the origin of the order in
question and analyze the extent to which the order—even if
stipulated—reflects the result of robustly contested litigation
aimed at ascertaining the best interest of the child.
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¶18 We discern no error here, even though the district court
did not expressly discuss the origin of the custody decree at
issue, because the decree—although entered as a result of a
negotiated settlement—was more akin to an adjudicated decree
than a non-adjudicated decree. Here, the decree was finalized in
April 2008, after more than four years of litigation between the
parties, during which both parties were represented by counsel
the entire time. The parties had fully litigated not only motions
for protective orders, which involved custody determinations
made by a court, but also motions for temporary orders before
the court commissioner and the district court wherein temporary
custody determinations were made. Moreover, the court had
appointed a guardian ad litem to represent the children, and in
addition a full evaluation had been performed by a neutral
court-appointed custody evaluator. The parties did not reach
their negotiated settlement in this case until after they had
received input from not only the custody evaluator and the
guardian ad litem, but also from the commissioner and the court
during the temporary orders process. By the time the settlement
was reached, four years of litigation had passed and a trial date
had been set. In the end, the decree encapsulated, for the most
part, the recommendations made by the guardian ad litem and
the custody evaluator, and memorialized an arrangement very
similar to the one previously ordered by the court on a
temporary basis.
¶19 We certainly recognize the potential for injustice with
certain types of stipulated custody orders; indeed, this is part of
the reason why courts, when considering petitions to modify,
retain the flexibility to be less deferential to stipulated custody
orders. See Taylor, 2011 UT App 272, ¶ 14 (stating that
unadjudicated custody decrees “may in fact be at odds with the
best interests of the child” (quotation simplified)). Depending on
the situation, our confidence that a stipulated custody decree—at
least one that is submitted to the court before receipt of input
from judicial officers during the temporary orders process or
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from custody evaluators or guardians ad litem—will actually be
in keeping with the best interest of the child may be
comparatively low, especially where neither side is represented
by counsel (or, potentially more concerning, when only one side
is represented by counsel). Inequalities in negotiating power or
financial resources can sometimes result in one parent agreeing
to conditions by stipulation that may not be in the long-term best
interest of the child.
¶20 But such concerns are not present in a case like this one,
where the parties reached a negotiated agreement after fully and
robustly participating in the litigation process, with lawyers, for
more than four years. The terms of the negotiated custody
decree in this case—entered on the eve of a scheduled trial—did
not substantially deviate from the terms of the temporary
custody order imposed by the court, and were heavily
influenced by the recommendations of both the custody
evaluator and the guardian ad litem. In this case, therefore, we
have relatively high confidence that the custody order was in
line with the best interests of the children. Accordingly, we
discern no error in the district court’s decision to apply the
change-in-circumstances requirement without watering it down
to account for the fact that the custody order in question was,
technically speaking, stipulated.
¶21 We are more concerned, however, with the district court’s
statement in its written order that, in “high conflict” cases, “the
burden to show a material and significant change in
circumstances should be higher than normal.” The district court
offered no citation to any authority supporting this principle in
our case law, and we are aware of none. We take this
opportunity to clarify that there is no separate standard that
courts are to apply in high-conflict cases when considering
whether a substantial change of circumstances is present in the
context of a petition to modify. Nevertheless, we are not
persuaded that the district court’s statement made a material
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difference to its analysis in this case. In context, especially after
reviewing the court’s oral ruling, we view the court’s statement
as simply acknowledging that, in high-conflict divorce cases,
parties are perhaps more willing to seek modification more
often, and that the danger of “ping-pong” custody awards in
those cases is therefore proportionately higher.
¶22 In the end, we are convinced, after a review of the full
record, that the district court applied the proper two-step
analysis to determine whether a substantial and material change
in circumstances occurred here. First, the court analyzed
whether, “since the time of the previous decree, there have been
changes in the circumstances upon which the previous award
was based.” See Hogge, 649 P.2d at 54. Second, the court analyzed
whether “those changes are sufficiently substantial and material
to justify reopening the question of custody.” See id. Because we
conclude that the court applied the proper test, we now proceed
to analyze whether the court abused its discretion in its
application of that test.
B
¶23 In her petition to modify, Mother pointed to three things
that she believed led to a substantial and material change
in circumstances. First, she contended that Father had
been “unable to provide a stable home environment” and
find “stable employment.” Second, she contended that Father
had “denied [her] physical visitation” to which she was entitled
pursuant to the decree. Third, she contended that Father
had “become violent with other people” and that “the children
have been emotionally abused.” After hearing evidence for a
day-and-a-half, the district court concluded that these things did
not constitute a substantial and material change in
circumstances, finding either that they were occurring, at most,
infrequently, or that they had been occurring throughout the
litigation and therefore could not constitute a change in
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circumstances. We conclude that the court did not abuse its
discretion in making that determination.
1
¶24 Mother’s first contention was that Father had “been
unable to provide a stable home environment” for the children
because he had “been evicted from several residences” resulting
in the children having to change schools a number of times. In
addition, Mother contended that Father had not “had stable
employment for the last eight years.” The district court
acknowledged that Mother had presented evidence that Father’s
“income was questionable and [his] lifestyle was a little bit
itinerant.” But the court noted in its oral ruling that this had
been the case both “before and after the decree,” and that
nothing had changed in this regard. In its written ruling, the
court made a finding that it had “not received evidence that
there has been a significant and material change in [Father’s]
ability to provide the children with a stable home.”
¶25 It is unclear from Mother’s brief whether she even intends
to challenge the district court’s factual findings, stating that her
“appeal is primarily legal.” But in any event Mother has not
carried her burden—if indeed she intended to shoulder that
burden—of demonstrating that the court’s factual finding was
clearly erroneous. As noted above, Mother alleged as early as
2007—in her pre-decree motion to alter the terms of the court’s
temporary custody order—that Father had “moved three times
in three years and has not demonstrated stability.” Despite
Father’s itinerant nature, the first custody evaluator
recommended that primary physical custody be awarded to
Father, and the stipulated decree followed that recommendation.
Presumably, all of that was taken into account during the
litigation that preceded entry of the decree. Moreover, in her
own petition to modify filed in 2013, Mother alleged that
Father’s employment instability had been an issue “for the last
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eight years,” dating back to 2005, three years before entry of
the decree. Issues that were present prior to the decree,
and continue to be present in much the same way thereafter, do
not represent a change in circumstances sufficient to justify
the reopening of a custody decree. See Utah Code Ann. § 30-3-
10.4(2)(b)(i) (LexisNexis Supp. 2019) (requiring a “change of
circumstance” before reopening a custody decree); see also Becker
v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that the rationale
behind the change-in-circumstances requirement “is
that custody placements, once made, should be as stable as
possible unless the factual basis for them has completely
changed”). In the end, Mother has not shown that the district
court’s finding—that Father’s employment instability and
itinerant nature had been present the whole time and therefore
did not constitute a substantial change in circumstances—was
clearly erroneous.
2
¶26 Mother’s next contention was that Father failed on
numerous occasions to facilitate parent-time as required under
the divorce decree. The district court found that, while Father
may have committed occasional violations of the terms of the
decree, “[t]he court has not received evidence that any denial of
physical visitation on the part of [Father] was systemic,
deliberate, or pathogenic enough to satisfy the requirements of
the law in reopening” the decree.
¶27 Ordinarily, when one parent commits a violation of the
terms of a divorce decree, the other parent’s remedy lies in
contempt. See Utah Code Ann. §§ 78B-6-301(5), -310 (LexisNexis
2018) (categorizing “disobedience of any lawful judgment [or]
order” as “contempt[] of the authority of the court,” and
authorizing courts to sanction violators); see also, e.g., Clarke v.
Clarke, 2012 UT App 328, ¶¶ 24–31, 292 P.3d 76 (resolving one
parent’s request for contempt sanctions against the other for
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asserted violations of a custody order). In most cases, violations
of a custody order by one party will not constitute the type of
substantial and material change in circumstances that will justify
reexamining the propriety of the order. But if the violations are
so numerous and pervasive that it becomes evident that the
custody arrangement is “not functioning,” then a change in
circumstances may have occurred. See Moody v. Moody, 715 P.2d
507, 509 (Utah 1985) (“[T]he nonfunctioning of a joint custody
arrangement is clearly a substantial change in circumstances
which justifies reopening the custody issue.”); see also Huish v.
Munro, 2008 UT App 283, ¶ 13, 191 P.3d 1242 (same).
¶28 In this case, the district court, after hearing Mother’s
evidence, made a factual finding that the evidence of Father’s
potentially contemptuous behavior was not so overwhelming as
to render the decree unworkable. The court noted that the
parties had been “in constant conflict since their separation and
likely before,” and that they were “still at war” thirteen years
after their separation. The court found that, while Father may
have violated the decree with regard to parent-time on a few
occasions, Father’s violations were not “systemic, deliberate, or
pathogenic enough to satisfy the requirements of the law in
reopening” the decree.
¶29 As noted above, it is unclear if Mother even intends to
challenge the district court’s factual findings, but in any event
she has not demonstrated clear error here. The district court’s
finding that the decree had not been rendered unworkable as the
result of Father’s violations was supported by, among other
evidence, the recommendation of the court-appointed GAL, who
expressed the view that the custody arrangement was working
well enough and should remain unchanged, and that “the
children have maintained throughout these proceedings that
they are happy with the current arrangement.” Mother has not
demonstrated that the district court’s determination about the
decree’s workability was clearly erroneous.
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3
¶30 Mother’s final contention was that Father had “become
violent with other people and the children have been
emotionally abused.” After hearing the evidence, the district
court found insufficient evidence that Father had been violent or
that he had emotionally abused anyone. In her brief, Mother
makes no serious effort to challenge this factual finding, and
therefore we are unable to find any error therein.
4
¶31 Given that Mother has not mounted a successful
challenge to any of the district court’s factual findings, all that
remains is for us to examine whether, given these findings, the
court abused its discretion in determining that no material and
substantial change in circumstances had occurred. See Doyle v.
Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258
P.3d 553. And on this record, we have no trouble concluding that
the court did not abuse its discretion in making that
determination. Many of the issues identified by Mother in her
petition—such as Father’s unstable employment and frequent
change of residence—had been present from the outset of this
case, and were present before the decree was entered; such ever-
present conditions cannot constitute a change in circumstances
sufficient to reopen a custody decree. Any issues Father had
with complying with the terms of the decree were apparently
not egregious or pervasive enough to render the custody
arrangement unworkable. And the district court, after listening
to a day-and-a-half of evidence, did not hear any evidence that
Father had acted violently or abusively toward anyone.
¶32 Under these circumstances, the district court did not
abuse its discretion in concluding that Mother had not carried
her burden of demonstrating a change in circumstances that was
substantial and material enough to justify reexamining the
parties’ longstanding custody arrangement. Because Mother did
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not satisfy the first part of the statutory test for obtaining a
modification of a divorce decree, the district court did not err by
dismissing her petition.
CONCLUSION
¶33 For all of the foregoing reasons, we affirm the district
court’s dismissal of Mother’s petition to modify.
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