Becker v. Becker, 19798

• Decision Date: 10 December 1984
• Docket Number: No. 19798,19798
• Citation: 694 P.2d 608
• Parties: Michael Charles BECKER, Plaintiff and Respondent, v. Josephine Gloria BECKER, Defendant and Appellant.
• Court: Utah Supreme Court

Page 608

694 P.2d 608

Michael Charles BECKER, Plaintiff and Respondent, v. Josephine Gloria BECKER, Defendant and Appellant.

No. 19798.

Supreme Court of Utah.

Dec. 10, 1984.

Kathryn Schuler Denholm, Salt Lake City, for defendant and appellant.

Brian C. Harrison, Myron A. Frazier, Provo, for plaintiff and respondent.

DURHAM, Justice.

This is an appeal from an order denying a petition to modify child custody provisions in a divorce decree. The trial court found that no substantial change in circumstances material to the modification of custody had been shown. The court did find, however, that a change in circumstances had been shown that justified reconsideration of the visitation arrangements. The court then determined that visitation should be modified. We affirm.

In April 1979, respondent Michael Becker obtained a decree of divorce from appellant Josephine Becker in which he was awarded custody of the parties' minor child, Michelle. At the time the decree was entered, appellant had physical custody of Michelle and was out of the state. Appellant subsequently returned to Utah and moved to have the decree set aside, which motion was granted. Appellant did, however, turn the child over to respondent.

In November 1979, following a trial, a decree of divorce was entered. In that decree, the trial court ordered that respondent continue to have custody pending home evaluations by the Division of Family Services. After the evaluations were completed and a psychologist's report was submitted, a hearing was held in October 1980. The judge found that both parents were fit and proper people to be awarded custody, but nonetheless awarded permanent custody to respondent. In his decision, the judge considered the recommendation of the psychologist that joint custody be awarded, but concluded that joint custody was neither practical nor in the best interests of the child. Recognizing the fitness of both parents, however, the court expanded the visitation rights of appellant and directed both parties to remain flexible and liberal in their visitation arrangements. The decree was amended in December 1980 to reflect that ruling.

On learning that respondent planned to move to the state of Washington in May 1983, appellant petitioned the trial court for a modification of custody. Appellant based her petition on the fact of the move, on her belief that the child desired to live with appellant, and on an allegation that the child was not being adequately cared for and supervised in respondent's home. In a later memorandum, appellant further alleged that the facts of this case resembled those in Hogge v. Hogge, Utah, 649 P.2d 51 (1982), because at the time of the original decree she had been young, unemployed, and not fully capable of caring for the child, whereas at the time of the petition she was remarried and more mature and was living in a stable environment with her new husband and two children.

After hearing testimony on the petition to modify, the trial court refused to change custody, but ordered a modification of the visitation arrangements to accommodate the move to Washington, expanding the summer visit to eight consecutive weeks and ordering a week's visit at Christmas or spring vacation.

Although the trial judge did not explicitly refer to the standards set forth in Hogge, it is clear from a careful reading of his written decision that he applied those standards in this case. In Hogge, this Court set forth a two-step procedure for modification of child custody decrees. The first step involves a determination that a substantial change in circumstances has occurred since the time of the last decree. That determination is a prerequisite to a reopening of the custody issue; only after making a finding of substantial change should the court go on to the second step of the procedure. In the second step, the court "must determine de novo which custody arrangement will serve the welfare or best interests of the child, and modify, or refuse to modify, the decree accordingly." Id., 649 P.2d at 54. The best interests determination should involve consideration of all relevant factors, including the benefit to be derived from maintaining stability in the child's living arrangements. Id.

While there appears to be little difficulty in implementing the second step of the Hogge analysis, some confusion continues to exist regarding the first step. In Hogge, we said,

In the initial step, the court will receive evidence only as to the nature and materiality of any changes in those circumstances upon which the earlier award of custody was based. In this step, 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.

Id., 649 P.2d at 54 (emphasis added). In order to meet this threshold requirement, a party must show, in addition to the existence and extent of the change, that the change is significant in...