Widdison v. Widdison

2022 UT App 46THE UTAH COURT OF APPEALS
NICOLE WIDDISON,
Appellant,
v.
LEON BRYANT WIDDISON,
Appellee.
Opinion
No. 20200484-CA
Filed April 7, 2022
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 144906018
Julie J. Nelson and Alexandra Mareschal, Attorneys
for Appellant
Todd R. Sheeran, Attorney for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
TENNEY, Judge:
¶1 By statute, a district court must ordinarily find that a
material and substantial change in circumstances occurred
before modifying the custody provisions in a divorce decree. In
this appeal, we’re asked to answer two main questions about
this statute.
¶2 First, if a decree is silent about whether one of the parents
has legal custody of a child, is the district court later required to
find that there was a material and substantial change in
circumstances before determining whether that parent has legal
custody in the first instance? We conclude that a material and
substantial change in circumstances is not required in such a
scenario.
Widdison v. Widdison
¶3 Second, in situations where the custody modification
statute is applicable, can a custodial parent’s attempt to sever a
years-long relationship between the noncustodial parent and a
child legally qualify as a material and substantial change? We
conclude that it can.
¶4 Based on these two conclusions, we affirm the
modifications at issue.
BACKGROUND1
The Divorce Decree
¶5 Nicole and Bryant Widdison were married in June 2004.
They had two children during their marriage, Daughter and Son.
Bryant is Daughter’s biological father, but Nicole conceived Son
with another man during a brief separation from Bryant. Nicole
and Bryant reconciled before Son’s birth, however, and Bryant
was in the delivery room when Nicole gave birth to Son. Bryant
is listed on Son’s birth certificate, and Son bears Bryant’s
surname.
1. The parties are referred to in different ways in the record and
the appellate briefing—sometimes by their formerly shared
surname, sometimes by their non-married surnames, and
sometimes by their first names. For consistency, we’ll refer to
them as Nicole and Bryant, and we intend no disrespect by the
apparent informality.
To enhance readability, we’ll also use Nicole and
Bryant—and Daughter and Son when referring to their
children—without using brackets to note any alterations, even
when we’re quoting other-named references to the parties or
their children from the record or the briefing.
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¶6 Nicole and Bryant divorced in July 2015. Daughter was
ten years old at the time, and Son was about three and a half.
The divorce decree (the Decree) was largely based on a
stipulation between Nicole and Bryant.
¶7 In the portions relevant to this appeal, the Decree
provided:
1. Physical Custody: Nicole shall have
physical custody of both said minor
children. Bryant will remain on Son’s
birth certificate unless or until he is
challenged by some other legitimate
party who prevails in a court of law.
....
4. Legal Custody: The parties shall have “joint
legal custody” of Daughter.
....
8. Parent-Time/Visitation: Bryant shall be
entitled to reasonable parent-time with
Daughter. Reasonable parent-time shall
be defined as the parties may agree.
However, if the parties are not able to
agree, Bryant shall be entitled to the
following parent-time:
....
2) . . . Bryant may have two (2)
overnights each week to coincide
with the days that he is off work
with the parties’ oldest child,
Daughter[,] during the school
year. . . . During the Summer
months Bryant may have three
overnights every other week and
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two overnights on the alternating
weeks. . . . As for the youngest child,
Son, parent-time will be at Nicole’s
sole discretion . . . .
3) Bryant shall also be entitled to
holidays and summer parent-time
as articulated in U.C.A. § 30-3-
35 . . . .
....
14. Child Support: . . . Based on [the parties’]
incomes, and a sole custody worksheet
(even though the parties have a different
parent-time arrangement and with the
benefit and consent of counsel after being
informed and involved), Bryant shall pay
Nicole child support in the amount of
$450.00 each month for the one female
child (Daughter). . . . Any reference to a
financial obligation[] or child support in
this document shall be interpreted as
applying only to the older child
(Daughter).
(Emphases added.)
¶8 As noted, the Decree gave Nicole “sole discretion” over
whether Bryant could spend parent-time with Son. During the
first three years after the divorce, Nicole “regularly and
consistently allowed Son to exercise time with Bryant.” Her
usual practice was to allow Son to accompany Daughter
whenever Daughter visited Bryant. Since the Decree entitled
Bryant to spend a little over 30 percent of the time with
Daughter, this meant that Bryant spent a little over 30 percent of
the time with Son during those years too.
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The Modification Petitions
¶9 In November 2016, the State filed a petition to modify the
Decree to require Bryant to pay child support for Son. The State’s
petition noted that Son was born during Nicole and Bryant’s
marriage, and it asserted that Bryant was Son’s presumptive
legal father under Utah Code § 78B-15-204(1)(a) (LexisNexis
2018)2, which states that a “man is presumed to be the father of a
child if,” among others, “he and the mother of the child are
married to each other and the child is born during the marriage.”
The State noted that “[n]o child support has been ordered for
this child.” It accordingly asked the court to “find[] Bryant to be
the legal father of Son” and order him to pay child support for
Son.
¶10 In his answer to the State’s petition, Bryant agreed that he
“is the presumptive father” of Son and expressed his “desire[]”
to “be treated as the natural father of Son” “for all intents and
purposes.” Bryant also asked the court for an order granting him
joint legal and physical custody of Son, as well as a “clarification
of his rights and duties, namely parent-time with Son.”3
¶11 In September 2018, Bryant filed his own petition to
modify the Decree. There, Bryant asserted that he “has been the
only father figure that Son has known,” and he argued that he
“should be presumed and considered the legal father of Son.”
Bryant also argued that “[t]here has been a significant,
substantial and material change in circumstances that has
2. Because there have been no substantive changes to the
relevant statutory provisions, we cite to the most recent version
of the Utah Code for the reader’s convenience.
3. The State’s petition was eventually resolved through the
district court’s modification of the Decree discussed below.
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occurred since the parties’ Decree of Divorce concerning
custody, parent-time, and child support, such that modification
of the Decree of Divorce is in the best interests of the minor
children.”4
Motion for Temporary Relief
¶12 About two months after Bryant filed his petition to
modify, Nicole suddenly cut off Bryant’s parent-time with Son.
After she did, Bryant filed a motion for temporary relief, asking
the court to award him “his historical/status quo parent time
with both the minor children” until his petition to modify was
resolved.
¶13 The matter went before a court commissioner, and a
hearing was held in which Bryant and Nicole and their
respective attorneys were present. During the hearing, the
commissioner heard how often Son accompanied Daughter
during her visits with Bryant. At the close of the hearing, the
commissioner ordered Nicole to “immediately resume Bryant’s
historical/status quo parent time with both minor children” and
to “allow Son to follow the parent-time schedule of Daughter,
consistent with the historical parent-time exercised by Bryant.”
¶14 Nicole objected to the commissioner’s recommendation,
but the district court overruled that objection. The court instead
4. After Bryant’s petition, Son’s biological father moved to
intervene. In a subsequent filing, the biological father explained
that paternity for Son had not been established and was “literally
left hanging” because Bryant “was never awarded custody, [or]
parent time, and [was] not ordered to pay child support” for Son
in the Decree. A few months later, however, the biological father
withdrew this motion, and he has not been a part of this
litigation since.
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agreed to temporarily “modify the stipulation to reflect what the
parties themselves were actually doing regarding parent time.”
The court surmised that “reducing the visitation the parties
themselves were doing” might “be harmful to the child.” The
court continued that it “could also be argued that such visitation
is helpful and beneficial to the child, especially since both
children will be doing visitation together and parents have the
right of visitation with their children.” Nicole was thus ordered
to give Bryant “the same parent-time with Son, consistent with
Bryant’s parent time with Daughter,” while Bryant’s petition to
modify was pending.
The Relocation Proceedings
¶15 A short time later, Nicole requested an expedited phone
conference with the court, explaining that the company she
worked for was requiring her to relocate to California. After a
hearing, the commissioner recommended that “[t]he children . . .
remain in Utah until the Court changes the Order regarding
custody and parent time.”
¶16 During the hearing, the commissioner further noted that
“[c]onspicuously absent from Nicole’s argument [was]
anything—from this Court’s perspective—showing she’s
considering the child’s perspective.” In particular, the
commissioner explained that
Son has shared time with the older sibling going to
Bryant’s home. Nicole has regularly and
consistently allowed this child to exercise time
with Bryant. In [November] of 2018, Nicole
disagreed. And I agree, she does have the
discretion to make decisions with regard to Son.
From the child’s perspective, however, one child
goes with Dad and the other doesn’t, because
Bryant stepped on Nicole’s toes. She says, I’m
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establishing boundaries; you don’t get to see this
child. That’s fine if this child is a car or a
refrigerator. Son [is] a person who has Bryant’s
surname, who has been exercising time—from
what I can see—[a] full seven years.
The commissioner further explained that “there’s been enough
of a change, enough consistency for this younger child, that he
has followed the older child, has the same surname [as Bryant],
[Bryant’s] name’s on the birth certificate that has not been
changed, to follow [Daughter’s parent-time] schedule.”
¶17 Nicole did not object to the commissioner’s
recommendation, and she hasn’t relocated in the meantime.
The District Court’s Ruling on Bryant’s Petition to Modify
¶18 A bench trial was held in November 2019 to settle the
issues raised in Bryant’s petition to modify and Nicole’s request
to relocate. The district court later entered an order titled
“Amended Findings of Fact and Conclusions of Law on
Petitioner’s Relocation Request,” which addressed both the
relocation request and the broader issues regarding Bryant’s
legal and physical custody.
¶19 In its order, the court first concluded that the petition to
modify was “appropriate in that there have been material
changes in circumstances warranting modification of the parties’
Decree in the children’s best interests, which have not previously
been adjudicated.” The court did not, however, more specifically
identify what those “changes in circumstances” were.
¶20 Second, the court concluded that Nicole had “failed to
rebut the presumption of paternity that exists in this case.” In the
court’s view, Nicole had not shown by a “preponderance of the
evidence that it would be in the best interest of Son to
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disestablish the parent-child relationship that has been created
and substantiated by both of the parties over many years.” The
court then “enter[ed] an adjudication that Bryant is the father of
Son” and modified the Decree to “impose as to Son parental
obligations” on Bryant, “including the obligation to pay child
support for Son.”
¶21 Third, the court “award[ed] Bryant joint legal custody of
Son on the same terms as the Decree provide[d] for Daughter.”
¶22 And finally, the court ruled that Nicole was “free to
relocate.” If she did, the court awarded Bryant parent-time with
both children under the terms set forth in Utah Code section 30-
3-37(6) (Supp. 2021). If Nicole stayed in Utah, however, the court
awarded Bryant “parent time with Son on the same terms as was
occurring with Daughter.”
¶23 That same day, the court issued a separate “Order
Modifying Decree of Divorce.” This order reiterated that Bryant
is “adjudicated to be the legal father of both Daughter and Son,”
that Bryant now bore “all parental obligations in accordance
with Utah law,” including the “obligation to pay child support”
for both children, and that Bryant had “joint legal custody of
both children on the same terms set forth in the [original] Decree
with respect to Daughter.” The court further repeated the
parent-time schedule that was set forth in its ruling on the
relocation request—i.e., it awarded Bryant parent-time with Son
on the same terms that he had with Daughter. It then declared
that, “[e]xcept as modified by this Order, the parties’ Decree
remains in full force and effect.”
ISSUES AND STANDARDS OF REVIEW
¶24 Nicole challenges the district court’s decisions to give
Bryant (1) legal custody of Son and (2) parent-time with Son. We
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review a district court’s decision to modify a divorce decree, as
well as a court’s parent-time determination and custody award,
for abuse of discretion. See Stephens v. Stephens, 2018 UT App 196,
¶¶ 20–21, 437 P.3d 445; MacDonald v. MacDonald, 2017 UT App
136, ¶ 7, 402 P.3d 178.
¶25 As discussed below, we regard one portion of the ruling
in question as a determination of custody in the first instance. “A
district court’s award of custody is reviewed for abuse of
discretion.” Taylor v. Elison, 2011 UT App 272, ¶ 8, 263 P.3d 448.
As also discussed below, another portion of Nicole’s argument
turns on whether the circumstances at issue can legally qualify
as a change in circumstances. We review that decision for
correctness. See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App.
1998) (“[I]n this case, we are presented with a question of law
regarding what constitutes a substantial change of
circumstances, which is reviewed for correctness.”).
ANALYSIS
¶26 “While there are several tools that can generally be used
to modify final judgments, one tool that is specific to family law
cases is the petition to modify.” McFarland v. McFarland, 2021 UT
App 58, ¶ 25, 493 P.3d 1146 (quotation simplified); see also Ross v.
Ross, 2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106
establishes a general rule . . . that any changes to divorce decrees
must be brought about by the filing of a petition to modify.”).
“Parties in family law cases may use this tool, in accordance with
applicable statutes and rules, to seek modification of various
provisions of decrees.” McFarland, 2021 UT App 58, ¶ 25.
¶27 “On the petition of one or both of the parents,” the
governing statute allows a court to “modify or terminate an
order that established joint legal custody or joint physical
custody” if “the circumstances of the child or one or both parents
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. . . have materially and substantially changed since the entry of
the order to be modified” and the modification “would be an
improvement for and in the best interest of the child.” Utah
Code Ann. § 30-3-10.4(1) (LexisNexis 2019). This is a “bifurcated
procedure,” Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982), and
Utah courts have consistently referred to it as a “two-step”
process, Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553. See also
Becker v. Becker, 694 P.2d 608, 610–11 (Utah 1984). Notably, it’s
also a sequential process, in that a court cannot “reopen[] the
custody question until it has first made a threshold finding of
substantially changed circumstances.” Doyle, 2011 UT 42, ¶ 25
(quotation simplified).5
¶28 As explained above, the district court made a number of
changes to the Decree, and Nicole now challenges two of them
on appeal: the decision to award Bryant legal custody of Son and
the decision to grant Bryant parent-time with Son. We address
each in turn.
5. A careful reader might note that the cited passage from Doyle
v. Doyle, 2011 UT 42, ¶ 25, 258 P.3d 553, referred to a “finding of
substantially changed circumstances,” even though the statute
speaks of circumstances that have “materially and substantially
changed.” Utah Code Ann. § 30-3-10.4(1)(a) (LexisNexis 2019). In
what appear to be stylistic or brevity-based alterations, cases
interpreting this statute have often shorthanded the phrase,
sometimes referring to it as the “change-in-circumstances
requirement,” see, e.g., Harper v. Harper, 2021 UT App 5, ¶ 14, 480
P.3d 1097, or sometimes adding one or both (or even neither) of
the modifiers. This opinion will follow suit. Any reference to the
“change-in-circumstances” requirement, with or without the
modifiers, is intended to refer to a material and substantial
change in circumstances.
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I. Legal Custody
¶29 Nicole first challenges the district court’s decision to
award Bryant joint legal custody of Son. Nicole claims that,
“[u]nder the decree, [she] had sole . . . legal custody of Son,” and
she then argues that under the two-step process described
above, the district court erred by granting legal custody to
Bryant without first providing any “analysis regarding a change
in circumstances.” In her view, “[t]he district court disregarded
the custody . . . arrangements from the decree and awarded joint
[legal] custody of Son as if the decree had never been entered.”
¶30 Nicole’s argument, however, is based on a false premise—
namely, that the Decree had awarded her sole legal custody of
Son. But it hadn’t. The Decree had a separately enumerated
“Legal Custody” subsection. That subsection stated that “[t]he
parties shall have ‘joint legal custody’ of Daughter.” (Emphasis
added.) This provision said nothing about Son, and no other
provision in the Decree purported to establish whether Nicole
had legal custody of Son (let alone sole legal custody), or instead
whether Bryant did (or didn’t) have any form of legal custody of
Son himself. Instead, on this, the Decree was silent.6
¶31 But the court was legally required to make a legal custody
determination for Son. The Utah Code states that courts “shall
enter . . . an order of custody”—both legal and physical—when a
“married couple’s marriage is declared void or dissolved.” Utah
Code Ann. § 30-3-10(1) (2019) (emphasis added). The term
6. The district court appears to have first learned about this
omission during the modification proceedings. When it did, the
court said that it “would not have signed” the Decree had it
realized that the Decree did not establish whether Bryant had
legal custody of Son. The court also referred to the Decree’s
failure to give Bryant “any parental obligations” as “a mistake.”
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“shall,” of course, has long been regarded as a command. See,
e.g., Lay v. Lay, 2018 UT App 137, ¶ 12, 427 P.3d 1221.7
¶32 The Decree’s silence impacts how we view Nicole’s
arguments on appeal. Again, the Decree is silent about whether
Bryant (or any other putative father) had legal custody of Son,
and it likewise said nothing about whether Nicole (or any other
mother) had legal custody of Son. So the question here is
whether the court could correct this oversight without having to
first determine that there had been a sufficient change in
circumstances to warrant modification.
¶33 We conclude that a change in circumstances was not
required for the court to correct the Decree in this manner. As
noted, the change-in-circumstances requirement is set forth in
Utah Code section 30-3-10.4. This requirement “serves multiple
interests.” Doyle, 2011 UT 42, ¶ 25. “First, because a custody
decree is predicated on a particular set of facts, that decree is res
judicata,” so “the changed-circumstances requirement prevents
an unnecessary drain on judicial resources by repetitive
litigation of the same issue when the result would not be
altered.” Miller v. Miller, 2020 UT App 171, ¶ 17, 480 P.3d 3417. There’s good reason for this particular requirement. The term
“legal custody” refers to a broad “relationship” that
“embod[ies]” “the right to physical custody of the minor,” “the
right and duty to protect, train, and discipline the minor,” “the
duty to provide the minor” with the necessities of life (including
medical care), and “the right to determine where and with
whom the minor shall live.” Utah Code Ann. § 80-1-102(45)
(Supp. 2021). Given the broad scope of these responsibilities, a
determination of who has legal custody of a child will heavily
influence the child’s welfare moving forward. It’s therefore
vitally important to the child, his or her parents, and even the
State.
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(quotation simplified). “Second, the changed-circumstances
requirement protects the custodial parent from harassment by
repeated litigation.” Id. (quotation simplified). And third, “the
requirement protects the child from ‘ping-pong’ custody
awards,” id. (quotation simplified), thus emphasizing “the
importance of a stable and secure homelife for children who are
shifted from one parent figure to another” and ensuring that
custody issues are not frivolously or infinitely “reopen[ed],”
Hogge, 649 P.2d at 53–54 (quotation simplified).
¶34 None of these concerns are implicated here. To the
contrary, since the question of whether Bryant had legal custody
of Son was unaddressed in the Decree, there was nothing for the
court to “reopen” or change. Id. at 53. Thus, properly
understood, Nicole isn’t really challenging a decision to modify a
prior determination that Bryant should (or shouldn’t) have legal
custody of Son. Rather, what Nicole is actually challenging is a
decision that, in effect, decided legal custody in the first instance.
Because of this, we conclude that no change in circumstances
could reasonably be required. After all, if it were true that a
court couldn’t correct an omission of a required determination
without pointing to a change in circumstances, divorce decrees
like this one would be left indeterminate about key issues such
as who had legal custody of a child. And the effect of such
omissions would be felt by both the children and the parents, all
of whom would be left without the guidance and certainty that
custody determinations are intended and required to provide.
We decline to create, let alone endorse, such an approach.
¶35 Our determination thus leaves the remaining question of
whether the court exceeded its discretion when it awarded joint
legal custody of Son to Bryant in the first instance. We conclude
that it didn’t.
¶36 “Under both the United States Constitution and the
constitution of [Utah], a parent possesses a fundamental liberty
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interest in the care, custody, and management of the parent’s
child.” Utah Code Ann. § 80-4-104(1) (Supp. 2021). Because of
this, legal custody is linked to the fact of parentage. Our
supreme court, for example, has held that a father has “legal
custody of [his] [c]hild by virtue of his paternity,” In re adoption
of B.B., 2017 UT 59, ¶ 81, 417 P.3d 1, and the same would of
course be true for mothers by virtue of their maternity. Indeed,
by statute, Utah law “presume[s] that a parent automatically
enjoys legal custody” of his or her child, and this is so because of
“the fundamental liberty interest of a parent concerning the care,
custody, and management of the parent’s child.” Id. (quotation
simplified). The legislature has also established “a rebuttable
presumption that joint legal custody” “is in the best interest of
the child.” Utah Code Ann. § 30-3-10(3) (2019).
¶37 Here, Son was born during Nicole and Bryant’s marriage,
so Bryant was legally “presumed to be” Son’s father. Id. § 78B-
15-204(1)(a) (2018). And while this presumption of paternity can
be overcome, the district court concluded that it was not.
Instead, in the same ruling at issue on appeal, the court declared
Bryant to be Son’s legal father, and Nicole has not challenged
that paternity decision on appeal.
¶38 As also noted, however, Bryant’s now-established
paternity of Son presumptively gave him joint legal custody of
Son too, based in part on Bryant’s own constitutional interests in
the care and raising of Son, who is his child. See In re adoption of
B.B., 2017 UT 59, ¶ 81. In her arguments to us, the only reason
that Nicole gives for overcoming this presumption is the fact that
the initial Decree was silent about whether Bryant had legal
custody of Son. But as we’ve explained, that omission was a
legal error. And when the district court was alerted to that error,
it appropriately fixed it. Once the court did, the result was that
Bryant—who was present at Son’s birth, was listed on Son’s
birth certificate, and has acted as Son’s father since birth—was
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now Son’s legal father, which meant that he was presumptively
entitled to legal custody of Son too.
¶39 In short, under these circumstances, no change in
circumstances was required, and we see no abuse of discretion in
the court awarding legal custody of Son to Bryant in the first
instance.
II. Physical Custody
¶40 Nicole next challenges the district court’s decision to
modify the Decree’s provisions regarding parent-time with Son.
As set forth below, we first clarify (A) the nature of the
modification, (B) the district court’s reasons for it, and (C) the
standard of review applicable to Nicole’s particular challenge.
We then hold that (D) the change in circumstance at issue can
legally support a modification of custody.
A. The Nature of the Modification
¶41 The Decree was silent about legal custody of Son, but it
wasn’t silent about physical custody. Instead, it affirmatively
gave Nicole “physical custody of both said minor children”—i.e.,
both Daughter and Son. And while the Decree then set forth a
delineated parent-time schedule for Daughter, it left Bryant’s
parent-time with Son to “Nicole’s sole discretion.”
¶42 In the ruling at issue, the district court modified this. The
court removed Nicole’s “sole discretion” over parent-time for
Son and set forth two alternative parent-time schedules. If Nicole
remained in Utah, Bryant would have parent-time with Son “on
the same terms as was occurring with Daughter.” If she moved
to California, however, Bryant would have one weekend per
month with both children as well as additional time with them
during the summer. See Utah Code Ann. § 30-3-37(6) (2019).
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¶43 Although this ruling was couched in terms of parent-time,
the parties have both suggested in their briefing that this
amounted to a modification of physical custody of Son. We
agree.
¶44 Physical custody and parent-time “are conceptually
distinct.” Ross, 2019 UT App 104, ¶ 14 n.3. “Physical custody has
long been understood to involve much more than actual
possession and care of a child,” instead implicating the right and
“legal responsibility to provide supervision and control” of a
child. Hansen v. Hansen, 2012 UT 9, ¶ 15, 270 P.3d 531. By
contrast, the term “parent-time” more narrowly refers to the
amount of time that a parent is entitled to spend with the child.
See generally Utah Code Ann. §§ 30-3-34 to -36 (2019 & Supp.
2021) (setting forth minimum, optional, and equal parent-time
schedules as well as parent-time considerations for special
circumstances).
¶45 That said, the terms are intertwined because, “[b]y
statutory definition, there are two kinds of physical custody—
sole physical custody and joint physical custody,” and “the
dividing line” between the two is largely “based on the number
of overnight visits enjoyed by each parent.” McFarland, 2021 UT
App 58, ¶ 36. When a child “stays with each” of his or her
“parent[s] overnight for more than 30% of the year, and both
parents contribute to the expenses of the child in addition to
paying child support,” each of the parents has joint physical
custody of the child. Utah Code Ann. § 30-3-10.1(3)(a) (2019). But
when a child stays with one parent overnight for less than 30%
of the year, the parent who has over 70% of the overnights is
considered to have sole physical custody of the child. See id.;
Utah Code Ann. § 78B-12-102(15) (Supp. 2021); McFarland, 2021
UT App 58, ¶ 36.
¶46 Here, the Decree did not specifically determine whether
Nicole had “sole” or “joint” physical custody of either of the
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children. But at least with regard to Son, the Decree effectively
awarded Nicole sole physical custody because it gave her “sole
discretion” whether Son would spend any parent-time with
Bryant at all. And, critically for this appeal, the Decree also
awarded Bryant what amounted to joint physical custody of
Daughter. After all, the dividing line is 30% of the overnights,
and 30% of the 365 days in a year is roughly 110. In the
proceedings below, the commissioner reviewed the Decree and
determined that the parent-time schedule gave Bryant more
“than the 110 overnights,” which accordingly meant that Bryant
had “joint physical custody” of Daughter. Thus, when the
district court later equalized Bryant’s parent-time with Son to
match the parent-time he had with Daughter, it in effect
modified the Decree to give Bryant joint physical custody of Son
too.8
B. The Basis for the District Court’s Change-in-Circumstance
Determination
¶47 As noted, the district court determined that “there have
been material changes in circumstances warranting modification
of the parties’ Decree in the children’s best interests, which have
not previously been adjudicated.” But the court did not
specifically delineate what those changes were. Because of this,
Nicole initially asks us to reverse the modification based on the
court’s failure to provide any “analysis as to why a custody
modification was justified” under the required change-in-
circumstances test.
8. Nicole and Bryant do not challenge this characterization on
appeal. To the contrary, they both adopt it, repeatedly referring
to the modification decision as being one that shifted Nicole’s
physical custody of Son from sole to joint.
20200484-CA 18 2022 UT App 46Widdison v. Widdison
¶48 We acknowledge that the district court’s ruling on this
could have been more clear. But even so, “a trial court’s failure
to make explicit findings supporting its decision does not, alone,
warrant reversal so long as the basis for the trial court’s ruling is
readily apparent from the record.” In re A.S., 2014 UT App 226,
¶ 7, 336 P.3d 582; cf. State v. Pecht, 2002 UT 41, ¶ 34, 48 P.3d 931(explaining that “where the record as a whole sufficiently”
indicates the basis for the court’s ruling, “an absence of written
findings will not invalidate the trial court’s conclusions”).
¶49 Here, the court expressly concluded that there had been a
change in circumstances, so the court was plainly cognizant of
the requirement and believed that it had been met. And from our
review of the record, we believe that the basis for the court’s
determination is sufficiently apparent. In its ruling regarding the
temporary orders, the court temporarily “modif[ied] the
stipulation to reflect what the parties themselves were actually
doing regarding parent time.” The court surmised that
“reducing the visitation the parties themselves were doing”
might “be harmful to the child” and that “visitation is helpful
and beneficial to the child, especially since both children will be
doing visitation together and parents have the right of visitation
with their children.” It thus ordered Nicole to give Bryant “the
same parent-time with Son, consistent with Bryant’s parent time
with Daughter,” while Bryant’s petition to modify was pending.
This initial decision demonstrated two key things: (1) the court
intended to equalize Bryant’s parent-time with Daughter and
Son, and (2) it more specifically intended to prevent Nicole from
“reducing” Bryant’s parent-time with Son.
¶50 The court’s ruling on Nicole’s relocation request (which,
again, accompanied the modification ruling) was consistent with
these goals. There, the court ruled that Bryant should be
declared Son’s father—a determination that, again, Nicole has
not challenged on appeal. Notably, in doing so, the court
expressed its intention to not allow Nicole to “disestablish the
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parent child relationship” between Bryant and Son “that has
been created and substantiated by both of the parties over many
years.”
¶51 Together, these orders reflect the court’s intention to
formally recognize and now protect Bryant’s relationship with
Son. From all this, we believe it is “readily apparent from the
record,” In re A.S., 2014 UT App 226, ¶ 7, that the change in
circumstances found by the court to support modification
included: (i) the changes in Bryant’s relationship with Son
(namely, the three years of additional parent-time bonding, as
well as Bryant’s new status as Son’s legally recognized father),
and (ii) Nicole’s recent attempts to cut off Bryant’s access to Son.
C. Standard of Review
¶52 Nicole next argues that Bryant’s further-developed
relationship with Son and her decision to cut off parent-time
between the two could not legally qualify as a change in
circumstances under the custody modification statute. As noted
in the Standard of Review section above, supra ¶ 25, we regard
this as a legal question that is reviewed for correctness. In light
of our past caselaw, this warrants some explanation.
¶53 This court has previously held that a district court’s
“determination regarding whether a substantial change of
circumstances has occurred is presumptively valid, and our
review is therefore limited to considering whether the [district]
court abused its discretion.” Nave-Free v. Free, 2019 UT App 83,
¶ 8, 444 P.3d 3 (quotation simplified); accord Christensen v.
Christensen, 2017 UT App 120, ¶ 10, 400 P.3d 1219; Doyle v. Doyle,
2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d
553. We reaffirm our adherence to this general rule here.
¶54 On occasion, however, we have held that the abuse-of-
discretion standard applies to a district court’s “ultimate
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determination regarding the presence or absence of a substantial
change in circumstances.” Peeples v. Peeples, 2019 UT App 207,
¶ 11, 456 P.3d 1159 (emphasis added); accord Harper v. Harper,
2021 UT App 5, ¶ 11, 480 P.3d 1097. But when we have been
presented with an argument that didn’t challenge the court’s
“ultimate determination” of whether certain facts constituted a
material and substantial change in circumstances, but instead
contended that particular facts or developments simply couldn’t
be legally considered as part of the court’s analysis, we have
treated those questions as questions of law for which we give the
district court’s ruling no appellate deference.
¶55 Our decision in Toone v. Toone, 952 P.2d 112 (Utah Ct.
App. 1998), is illustrative. There, after a divorce had been
finalized, federal laws regarding military pensions changed; and
if those new laws were applied to the parties’ divorce, they
would have allowed the ex-wife a larger share of her ex-
husband’s military pension. See id. at 113–14. The ex-wife
accordingly filed a petition to modify, asserting that the change
in laws amounted to a change in circumstances that justified
modification of the divorce decree. Id. We disagreed. See id. at
114. Notably, while reaffirming the rule that a district court’s
“modification determination” is reviewed “for an abuse of
discretion,” we regarded the particular question before us as
being “a question of law regarding what constitutes a substantial
change of circumstances, which is reviewed for correctness.” Id.¶56 Another case proceeded similarly. In Davis v. Davis, 2011
UT App 311, ¶ 6, 263 P.3d 520, we construed a party’s argument
that certain events “could not be used as evidence” in the
change-in-circumstances analysis as a legal question that we
reviewed for correctness.
¶57 This distinction, though perhaps subtle, is important, and
it accords with how standards of review operate. The “primary
function of a standard of review is to apportion power and,
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consequently, responsibility between trial and appellate courts
for determining an issue.” State v. Levin, 2006 UT 50, ¶ 19, 144
P.3d 1096 (quotation simplified). In this sense, the standard of
review determination “allocate[s] discretion between the trial
and appellate courts” based on an assessment of “the relative
capabilities of each level of the court system.” Id. (quotation
simplified).
¶58 Again, the statute in question here requires a court to
determine whether there was a material and substantial change
in circumstances. See Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019).
The evaluation of whether a particular change was material or
substantial enough calls for a weighing of facts and
circumstances. District courts are in a better position than we are
to do such weighing, which is why those ultimate
determinations receive discretionary deference. But if a party
instead makes a threshold argument that a particular kind of fact
or development can’t legally be used in the weighing at all, that
argument essentially asks us to establish the permissible
boundaries of the district court’s discretionary decision-making
authority. Such a question is legal in nature, which is why that
aspect of the ruling is reviewed for correctness.
¶59 In her opening brief, Nicole argues that the change in
circumstances identified by the district court “is not the sort of
‘change’ that justifies modification under Utah law.” (Emphasis
added.) In her reply brief, Nicole similarly asserts that the
district court “did not find[] changed circumstances that qualify
under Utah law.” (Emphasis added.) She accordingly asks us to
review the district court’s decision for correctness, rather than an
abuse of discretion. So viewed, we don’t understand Nicole to be
challenging the court’s weighing of the permissible facts. Rather,
we understand Nicole to be making a legal argument about
whether the court could even consider the change in relationship
between Son and Bryant in the intervening years and Nicole’s
subsequent, unilateral decision to cut off their parent-time as a
20200484-CA 22 2022 UT App 46Widdison v. Widdison
material change in circumstances. Because her argument is legal
in nature, we review this aspect of the ruling for correctness.
D. The Change in Circumstances
¶60 Properly understood, the question, then, is whether the
change in circumstances identified above can legally qualify as a
change in circumstances under Utah law. We conclude that it
can.9
¶61 As noted, the statute requires a determination that “a
material and substantial change in circumstance has occurred.”
Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). A chief “goal” of this
required determination is to give children “some measure of
certainty and stability” after their parents or guardians have
separated. In re E.H., 2006 UT 36, ¶ 2, 137 P.3d 809. Indeed, the
supreme court has suggested that children are “entitled” to
“permanence and stability” moving forward. Id. ¶ 16.
¶62 For good reason. The “emotional, intellectual, and moral
development of a child depends upon a reasonable degree of
stability in the child’s relationships to important people and to
9. In his brief, Bryant argues that Nicole either did not preserve
or may instead have waived this argument. Bryant also
separately argues that a district court is not required to make
such a determination when converting an award of sole custody
to one of joint custody. But because we agree with Bryant on the
merits of the change-in-circumstances determination, we need
not reach those questions. See, e.g., Fritsche v. Deer Valley Ridge at
Silver Lake Ass’n of Unit Owners, 2022 UT App 11, ¶ 58 n.6, 504
P.3d 761 (“If the merits of a claim can easily be resolved in favor
of the party asserting that the claim was not preserved, we
readily may opt to do so without addressing preservation.”
(Quotation simplified.)).
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its environment.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989).
Both the supreme court and this court have recognized that
stability is paramount with respect to “custody arrangements.”
Hogge, 649 P.2d at 54; see also Kramer v. Kramer, 738 P.2d 624, 626
(Utah 1987) (recognizing that “stable custody arrangements are
of critical importance to the child’s proper development”); Taylor
v. Elison, 2011 UT App 272, ¶ 22, 263 P.3d 448 (recognizing the
“general policy of maintaining custodial stability to the extent it
is reasonable and wise to do so while [a child’s] parents seek to
resolve their differences” and that “it is generally in the best
interests of the child to remain with his or her existing custodial
parent”).
¶63 This stability interest is one of the driving forces behind
the change-in-circumstances requirement, which “provide[s]
stability to children by protecting them from ‘ping-pong’
custody awards.” Chaparro v. Torero, 2018 UT App 181, ¶ 39, 436
P.3d 339 (quotation simplified). “Absent such a requirement, a
decree of divorce would be subject to ad infinitum appellate
review and readjustment.” Foulger v. Foulger, 626 P.2d 412, 414
(Utah 1981). Thus, the understood “rationale” for this
requirement is “that custody placements, once made, should be
as stable as possible unless the factual basis for them has
completely changed.” Kramer, 738 P.2d at 627 (quotation
simplified).
¶64 But this leads to the problem that the district court was
confronted with here. Again, the parent-child relationship
between Bryant and Son had existed since birth, had solidified in
the several-year period after the divorce, and had just now been
officially recognized as a matter of law. Despite this, Nicole had
recently invoked her authority under the Decree to cut off
Bryant’s access to Son entirely, thus amounting to something
akin to complete custodial interference.
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¶65 The legislature, however, has recognized that “each
divorcing, separating, or adjudicated parent is entitled to . . .
frequent, meaningful, and continuing access with the parent’s
child consistent with the child’s best interest,” Utah Code Ann.
§ 30-3-32(2)(b)(ii) (Supp. 2021) (emphases added), and that,
absent evidence of abuse or harm to the child, “it is in the best
interests of the child to have both parents actively involved in
parenting the child,” id. § 30-3-32(2)(b)(iii) (emphasis added).
True, such relationships can be altered or even severed by
operation of law. But here, the Decree was the product of a
stipulation, not a court determination, and no court has ever
determined that it was not in the best interests of Son to have a
relationship with Bryant.
¶66 Given that Bryant has now been adjudicated to be Son’s
father, we believe that the court could legally conclude that this
change, coupled with Nicole’s concomitant attempt to
undermine their ability to have any relationship at all, warranted
a modification of the Decree to protect the father-son
relationship moving forward.
¶67 Nicole, however, resists this conclusion. She argues that
her decision “to allow (or not allow) parent-time” is not “the
type of change in circumstances that justifies modification under
Utah law.” We disagree.
¶68 As a starting point, we note that Nicole’s argument has no
support in the controlling statutory text. Section 30-3-10.4(2)(b)(i)
requires a court to find that “a material and substantial change
of circumstance has occurred.” There is nothing in the text of this
statute that creates the limit suggested by Nicole—i.e., the
statute doesn’t prevent a district court from concluding that a
custodial parent’s efforts to cut off a years-developed
relationship between a child and the noncustodial parent
qualifies as such a change.
20200484-CA 25 2022 UT App 46Widdison v. Widdison
¶69 Nicole nevertheless points to two cases that, in her view,
support her proposed limitation. But we don’t find either case to
require a different result here.
¶70 First, Nicole relies on a passage from Doyle in which the
supreme court “adopted a general rule” under which “the
asserted change” in circumstances must be related to the
“parenting ability or the functioning of the presently existing
custodial relationship,” rather than the “parenting of the
noncustodial parent.” 2011 UT 42, ¶ 41 (quotation simplified).
¶71 But while Doyle referred to this as a “general rule,” it
never said it was an “exclusive” one. Indeed, in the very next
sentence, Doyle recognized “an exception to the general rule”
that was based on a prior Utah case. Id. Doyle itself thus shows
that this “general rule” is subject to judicially recognized
exceptions.
¶72 Moreover, section 30-3-10.4(1)(a) itself provides that, in a
petition to modify, the petition or affidavit must “allege[] that
admissible evidence will show that the circumstances of the child
or one or both parents . . . have materially and substantially
changed since the entry of the order to be modified.” (Emphasis
added.) By allowing a modification to be based on a change in
the circumstances of “the child or one or both parents,” the
legislature directly contemplated that a change in circumstances
of any of the parties—the child or either parent—can provide the
basis for a modification. So while Doyle’s statement provides
some guidance, we do not understand it to be an inviolable
limitation of the sort proposed by Nicole.
¶73 Second, Nicole claims that in Crouse v. Crouse, 817 P.2d
836 (Utah Ct. App. 1991), we adopted a rule under which a
noncustodial parent’s strengthened relationship with a child
cannot qualify as a change in circumstances for purposes of a
20200484-CA 26 2022 UT App 46Widdison v. Widdison
subsequent modification request. We disagree with Nicole’s
interpretation of Crouse.
¶74 In Crouse, the mother had been given primary physical
custody of the children after the divorce, but she had then
allowed the children to “spen[d] almost equal time” with their
father in the ensuing years. Id. at 837. Based in part on this
allowance of extra time, the father later requested a modification
of the decree to give him “primary physical custody” over the
children. Id. The district court denied his modification request,
and we affirmed that decision. Id. at 837, 840.
¶75 Nicole points to a passage from our affirmance in which
we recognized that the “fact that Mrs. Crouse has been generous
in sharing physical custody with Mr. Crouse is not a ground to
change physical custody; if anything, it supports leaving
primary physical custody with Mrs. Crouse, as it shows that she
has lived up to the responsibilities of a custodial parent.” Id. at
839.
¶76 In contrast to Nicole, however, we don’t read this passage
as having determined that, as a matter of law, a district court
cannot consider such facts in its analysis. It’s significant that we
were affirming the district court’s denial of a petition to modify
in Crouse. It’s also significant that the same section of the opinion
began with a reminder that a “trial court’s decision concerning
modification of a divorce decree will not be disturbed absent an
abuse of discretion,” id. at 838, and that we then referred to the
court’s “discretion” three more times in that section, id. at 838–
39. Thus, properly understood, Crouse was not establishing rules
about the facts that a court could legally consider. Rather, Crouse
was giving deference to the district court’s determination that
the facts before it were not enough to satisfy the requisite
standard.
20200484-CA 27 2022 UT App 46Widdison v. Widdison
¶77 Moreover, we also note that the district court’s use of its
discretion in Crouse was consistent with the understood purpose
behind the change-in-circumstances requirement. The mother
there had originally been awarded primary physical custody,
and after she let the children “spen[d] almost equal time” with
their father over a period of a few years, the father asked the
court to grant him “primary physical custody” as a result. Id. at
837. In this sense, the father’s request, if granted, would have
created instability in the children’s lives by changing their
primary caregiver.
¶78 The opposite is true here. Again, Bryant had acted as
Son’s father since birth. After Nicole then allowed Son to
continue developing this relationship with Bryant over the
course of several post-divorce years, Nicole changed her mind
and decided to cut off their relationship, thus essentially leaving
Son fatherless. Put simply, the effect of our decision here is
consistent with Crouse, not inconsistent with it. There, we
affirmed a district court decision that preserved stability in the
children’s lives. And here, we’re likewise affirming a district
court decision that preserved stability in the affected child’s life.
¶79 In sum, the statute does not impose the limitation
proposed by Nicole, and we think that doing so ourselves would
be inconsistent with Utah caselaw, the importance of parent-
child relationships, the protections given to those relationships
by constitution and statute alike, and the modification statute’s
recognized goal of promoting stability in children’s lives. We
therefore conclude that a district court can legally determine that
a unilateral attempt by a custodial parent to sever a child’s years-
developed relationship with his or her noncustodial parent can
constitute a substantial and material change in circumstances,
thereby allowing the court to proceed to the best interests step of
the modification analysis. We accordingly affirm the district
court’s conclusion that a change in circumstances occurred here.
20200484-CA 28 2022 UT App 46Widdison v. Widdison
¶80 Having done so, we add two cautionary notes to this
decision. First, Nicole suggests that a ruling like this one will
essentially penalize a custodial parent for being generous with
the noncustodial parent’s ability to exercise parent-time. We’re
sensitive to this concern. But again, a district court can’t proceed
to the best-interests step of the analysis based on just any change
in circumstances. Rather, the court must first determine that the
change is “material and substantial.” Utah Code Ann. § 30-3-
10.4(2)(b)(i). Whether a particular increase or decrease in parent-
time is enough to qualify will be circumstance-dependent, and
we have no need to more specifically cabin the district courts’
discretionary authority here. But in light of Nicole’s concern, we
do note that the change in question in this case was from
something akin to 30% of the time to 0%. We’re simply holding
that a court can regard such a dramatic alteration of the existing
parent-child relationship to be a material and substantial change
in circumstances.
¶81 Second, we again note that, even when a district court
concludes that a change in circumstances has occurred, this does
not mean that the court must modify the decree. Again, this is a
two-step analysis, and under the second step, a court can only
modify a decree if it finds that the modification “would be an
improvement for and in the best interest of the child.” Id. § 30-3-
10.4(2)(b)(ii). Thus, even in a circumstance like this one, a district
court could still determine that modification is not appropriate if
it concludes that the proposed modification would not be in the
best interests of the child.
¶82 In this sense, our decision today does not restrict the
district courts’ options. Rather, it keeps them open. We simply
hold that, in a case like this one, a district court can determine
that a material and substantial change in circumstances has
20200484-CA 29 2022 UT App 46Widdison v. Widdison
occurred—not that it must, and not that it must then make any
particular ruling regarding the best interests of the child.10
10. As noted, we understand Nicole’s argument to be that a
district court can’t legally regard circumstances like these as a
material and substantial change in circumstances. We don’t
understand Nicole to be separately arguing that, if these facts
can legally be considered, the court abused its discretion in
determining that a material and substantial change in
circumstances occurred.
In any event, if Nicole has impliedly made that challenge
too, it fails. We “review the court’s ultimate determination
regarding the presence or absence of a substantial change in
circumstances for an abuse of discretion.” Harper v. Harper, 2021
UT App 5, ¶ 11, 480 P.3d 1097 (quotation simplified). And an
“appellate court can properly find abuse of discretion only if no
reasonable person would take the view adopted by the trial
court.” Id. (quotation simplified).
Moreover, with respect to this discretionary
determination, the amount of change necessary varies based on
whether the initial decree came from a stipulation as opposed to
a contested divorce trial. This is so because “an unadjudicated
custody decree is not based on an objective, impartial
determination of the best interests of the child.” Zavala v. Zavala,
2016 UT App 6, ¶ 17, 366 P.3d 422 (quotation simplified). So
when a court is subsequently asked to modify a custody order
from a stipulated decree, the court is essentially being asked to
“adjudicate[] it for the first time.” Id. As a result, a modification
of a stipulated decree requires “a lesser showing” “than would
be required to modify an adjudicated award.” Id.Here, the Decree was the product of a stipulation, not an
adjudication, so the modification required only this lesser
showing. And as discussed above, Son now had several years
(continued…)
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CONCLUSION
¶83 For the foregoing reasons, we affirm the district court’s
decision to give Bryant joint legal and physical custody of Son.
(…continued)
more of post-divorce parent-time bonding with Bryant, Bryant
had now been legally declared to be Son’s father, and Nicole had
recently interfered with that relationship. Given our conclusion
that such circumstances can legally qualify as a change in
circumstances, we have no hesitation in likewise concluding that
the court did not abuse its discretion in determining that these
circumstances satisfied the “lesser showing” required for a
modification of this stipulated Decree. Id.20200484-CA 31 2022 UT App 46