Boyce v. Goble

• Decision Date: 03 August 2000
• Docket Number: No. 990641-CA.,990641-CA.
• Citation: 8 P.3d 1042,2000 Utah Ct. App. 237
• Parties: Tyler BOYCE, Petitioner and Appellee, v. Tammy L. GOBLE, Respondent and Appellant.
• Court: Utah Court of Appeals

8 P.3d 1042

2000 Utah Ct. App. 237

Tyler BOYCE, Petitioner and Appellee, v. Tammy L. GOBLE, Respondent and Appellant.

No. 990641-CA.

Court of Appeals of Utah.

August 3, 2000.

D. Michael Nielsen, Bountiful City Prosecutor, Bountiful, for Appellant.

Suzanne Marelius, Littlefield & Peterson, Salt Lake City, for Appellee.

Before Judges BILLINGS, DAVIS, and THORNE.

OPINION

DAVIS, Judge:

¶ 1 Appellant Tammy L. Goble appeals the trial court's denial of her motion for reconsideration or a new trial. We affirm.

I. FACTS

¶ 2 After eight years of marriage, Tyler Daran Boyce, Appellee, and Tammy Linge (Boyce) Goble, Appellant, divorced by Judgment and Decree of Divorce on November 25, 1996. The decree, an incorporation of a stipulation between the parties, awarded joint legal and physical custody of their three minor children and laid out the terms of visitation and child support. Specifically regarding visitation and child support, the decree provided:

That each party be, and they are, hereby awarded the joint custody of the minor children . . . with joint physical custody with [Ms. Goble]'s home as the primary residence and granting [Mr. Boyce] equal control and input into the children's lives, and [Mr. Boyce] having liberal rights of visitation.

That [Mr. Boyce] be, and he is, hereby required to pay [Ms. Goble], for the support of the minor children, the sum of $796.00 per month, a sum in accordance with the Uniform Child Support Schedule and each party's gross monthly income, plus ½ of any actually incurred day-care expenses incurred by [Ms. Goble] to maintain her employment.

¶ 3 No visitation schedule was set out in the decree. The decree merely specified that Ms. Goble's home would be the children's primary residence and that Mr. Boyce would have "liberal rights of visitation." Although the decree awarded the parties joint legal and physical custody of the children, the amount that Mr. Boyce had to pay was calculated using the sole custody worksheet from the Uniform Child Support Schedule.

¶ 4 On August 4, 1997, about nine months after the trial court entered the decree, Mr. Boyce filed a verified petition for modification alleging changed circumstances and seeking to modify both visitation and child support. Ms. Goble counter-petitioned only on the issue of visitation, agreeing that the original decree was unworkable concerning visitation.

¶ 5 The parties attended mediation and resolved the visitation dispute as well as certain communication and parenting issues. They then appeared before a Commissioner on February 18, 1998 and stipulated to a visitation schedule wherein the children would be with Mr. Boyce 35.5% of the time and with Ms. Goble 64.5% of the time. This visitation schedule was similar to the visitation existing prior to the modification proceedings; however, the stipulation provided for a definite schedule. The parties were still unable to agree upon modification of child support and that issue was reserved for a modification hearing.

¶ 6 Following the modification hearing, the court found in pertinent part: "Th[e] Decree awarded the parties joint legal and physical custody of their three minor children . . .; Both parties [agreed] the vague terms of the Decree concerning visitation became unworkable. . . ; [and] in 1997 [Mr. Boyce] had at least 38% of the nights with his children." The court concluded that "the lack of a defined visitation schedule and Respondent's household expenses for the children being higher than expected represent substantial, material changes in circumstances which were not foreseeable at the time of entry of the Decree of Divorce." The court continued the joint custody arrangement set out in the divorce decree but adopted the parties' stipulation as to the visitation schedule. The court used the new visitation schedule to determine the support amount based on a joint custody worksheet. Additionally, in computing the amount of support, the court found that Ms. Goble's income should be $0 because she was no longer working.

¶ 7 Appellant filed a motion for reconsideration or new trial which was denied on April 29, 1999. She appeals.

II. ISSUE AND STANDARD OF REVIEW

¶ 8 The issue for our review is whether the trial court abused its discretion by finding a substantial change of circumstances based primarily upon the definition and quantification of visitation.

¶ 9 "`"The determination of the trial court that there [has or has not] been a substantial change of circumstances . . . is presumed valid,"' and we review the ruling under an abuse of discretion standard." Moon v. Moon, 1999 UT App 012, ¶ 28, 973 P.2d 431 (alteration in original) (citations omitted), cert. denied, 982 P.2d 89 (Utah 1999). "This court will not overturn a trial court's modification of a divorce decree absent a clear abuse of discretion or manifest injustice." Moore v. Moore, 872 P.2d 1054, 1055 (Utah Ct.App. 1994).

III. ANALYSIS

A. Separation of Child Custody and Child Support

¶ 10 Appellant argues that the issues contained in divorce decrees are separate and must be analyzed separately, and thus, modification of visitation should not open the door to modification of child support. "[A] specific change in circumstances may justify reconsideration of one provision of a divorce decree while not justifying reconsideration of another provision." Becker v. Becker, 694 P.2d 608, 611 (Utah 1984) (emphasis added). Depending on the facts of the case, the converse can also be true, a change of circumstances may justify reconsideration of more than one provision. This concept is especially true when the areas are interdependent. For example, child custody and child support, while governed by separate statutes, are typically related to one another. See Utah Code Ann. §§ 78-45-1 to -13 (Supp. 1999) (child support) and Utah Code Ann. § 30-3-10 to -10.6 (Supp. 1999) (child custody). In fact, a child support award under the guidelines is statutorily predicated on the time the children are in the custody of each parent. See id. § 78-45-7.7 to -7.11. Additionally, a factor in determining if an adjustment in child support is appropriate is whether there was a material change in custody. See id. § 78-45-7.2(7)(b)(i).

¶ 11 Here, not only did quantification reveal that Mr. Boyce had visitation with his children more than contemplated in the divorce decree,¹ but he had more expenses than anticipated due to the additional time that he cared for the children. Additionally, the decree itself neither set out any specific visitation schedule nor specified the basis for the amount of the support agreed upon.² Thus, on the facts of this case, separate analysis of visitation and support is inappropriate.

B. Modification of Child Support

¶ 12 Appellant also argues: (1) the threshold requirement of a material change of circumstances was not met, so the merits should not have been evaluated; (2) the trial court abused its discretion in modifying the child support award based upon a finding that a minor change in the de facto visitation schedule constituted a substantial change of circumstances; and (3) the trial court's findings were an inadequate basis for a modification of child support.

¶ 13 We turn to Appellant's first argument by examining the standard for modification of a child support award. The Legislature addressed determination and modification of child support in the Uniform Civil Liability for Support Act (Support Act). See Utah Code Ann. §§ 78-45-1 to -13 (Supp. 1999).³ With respect to modification within three years of the decree, the Support Act states: "Prospective support shall be equal to the amount granted by prior court order unless there has been a substantial change of circumstances on the part of the obligor or obligee . . . ." Id. § 78-45-7(1)(a) (emphasis added). The Support Act strongly favors following the Child Support Guidelines to determine the amount of an award.⁴ In addition, the Support Act lists six factors which may be considered to determine if there was a substantial change of circumstances.⁵ Those factors, however, are not exclusive and are merely a guideline to help determine if a substantial change of circumstances has occurred.

¶ 14 "To succeed on a petition to modify a divorce decree, the moving party must first show that a substantial material change of circumstance has occurred '"since the entry of the decree and not contemplated in the decree itself."'" Bolliger v. Bolliger, 2000 UT App 47, ¶ 11, 997 P.2d 903 (emphasis omitted) (citations omitted); accord Williamson v. Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103. "The change in circumstance required to justify a modification of the decree of divorce varies with the type of modification contemplated. Provisions in the original decree of divorce granting alimony, child support, and the like must be readily susceptible to alteration at a later date. . . ." Foulger v. Foulger, 626 P.2d 412, 414 (Utah 1981).

C. Substantial Change of Circumstances

¶ 15 We now turn to Appellant's second argument concerning whether the trial court erred by finding a substantial change of circumstances based upon a de facto minor change in the visitation schedule. The trial court found there was a substantial change of circumstances not contemplated in the original decree based upon the parties' agreement that the visitation provision in the decree needed to be modified due to its vagueness and Mr. Boyce's higher-than-expected household expenses for the children.⁶ We agree that these factors create a substantial change of circumstances.

¶ 16 In accordance with the parties' petitions for modification, it is, in effect, undisputed that the change in visitation was a substantial and material change not contemplated in the original decree. Both agreed that the visitation agreement, as set out by the decree, was unworkable. The decree itself did not define "liberal visitation" nor did it outline how much time the parties expected the...