Cummings v. Cummings

• Decision Date: 27 November 1991
• Docket Number: No. 900480-CA,900480-CA
• Citation: 821 P.2d 472
• Parties: Michael J. CUMMINGS, Plaintiff and Appellee, v. Vonda Clegg CUMMINGS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 472

821 P.2d 472

Michael J. CUMMINGS, Plaintiff and Appellee, v. Vonda Clegg CUMMINGS, Defendant and Appellant.

No. 900480-CA.

Court of Appeals of Utah.

Nov. 27, 1991.

Rehearing Denied Dec. 13, 1991.

Michael K. Black, Orem, for defendant and appellant.

Helen E. Christian and Kim M. Luhn, Salt Lake City, for plaintiff and appellee.

Before BILLINGS, GREENWOOD and JACKSON, JJ.

GREENWOOD, Judge:

Vonda Cummings Scott appeals from the trial court's order adjusting financial obligations of the parties and modifying child custody. We reverse in part and affirm in part.

BACKGROUND

Vonda Cummings Scott (Ms. Scott) and Michael Cummings (Mr. Cummings) were married on September 10, 1977. They were then fifteen and nineteen-years-old, respectively. A son, Jay, was born eighteen months later. Ms. Scott and Mr. Cummings subsequently separated and obtained a divorce in November 1980. They stipulated that Ms. Scott would have custody of Jay and Mr. Cummings would have visitation rights. After periods of temporary reconciliation during which they lived together but were not remarried, another son, Nick, was born on May 25, 1985. Ms. Scott and Mr. Cummings permanently separated in 1986.

In 1987, Ms. Scott petitioned to modify their divorce decree to take into account issues of custody and child support. Mr. Cummings and Ms. Scott again stipulated that Ms. Scott would have custody of both children, subject to reasonable visitation rights for Mr. Cummings. Both parties have since remarried. Ms. Scott married Ed Scott (Mr. Scott) and Mr. Cummings married Kelli Rupp (Ms. Cummings).

In 1989, Ms. Scott filed an order to show cause seeking delinquent child support and insurance and medical expenses. Mr. Cummings petitioned for modification of the divorce decree, seeking permanent custody of the children. At trial, he presented evidence from Dr. Elizabeth Stewart, the court-appointed clinical psychologist. Dr. Stewart was appointed to evaluate the boys' relationships with each parent and to make recommendations as to who should have custody. She testified that in her opinion, Mr. Cummings should have custody of the children. Dr. Stewart's written evaluation of each of the persons involved was also admitted into evidence and incorporated into the court's findings.

During the course of the trial, the judge spoke with Jay, then eleven-years-old, in his chambers without counsel present. The judge stated that Jay told him that he preferred to live with his father, but wished to "spend as much time as possible with his mother" and would like to have "visitation with [Mr.] Scott also."

After the three-day trial, the court found that a substantial change in circumstances had occurred and that the best interests of the boys would be served with Mr. Cummings as their custodial parent. The court granted Mr. Cummings custody of both children. The court also entered orders regarding Mr. Cummings's accrued child support obligation and Ms. Scott's prospective child support obligation. Ms. Scott now appeals.

ISSUES PRESENTED

Ms. Scott argues on appeal that: (1) the trial court erred in not bifurcating the proceedings; (2) the evidence and the trial court's findings of fact are insufficient to support a change in custody; (3) the trial court erred in imputing income to her for child support purposes; and (4) the trial court erred in reducing Mr. Cummings's child support arrearages.

DISCUSSION

Bifurcation

Ms. Scott argues the trial court erred in not following the two-step bifurcated process required under Hogge v. Hogge, 649 P.2d 51 (Utah 1982), and Becker v. Becker, 694 P.2d 608 (Utah 1984), in considering Mr. Cummings's petition for a change in custody. She asserts that the trial court should have held separate hearings to first determine whether there had been a change of circumstances sufficient to reopen the custody issue, and if so, then in a subsequent or continued hearing, determine what would be in the best interests of the children. Instead, the trial court received evidence on both issues in one proceeding.

While trial courts have broad discretion in divorce and custody matters, that discretion must be exercised within legal parameters set by appellate courts. Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985); Maughan v. Maughan, 770 P.2d 156, 159 (Utah App.1989). The question of whether current Utah appellate case law requires bifurcation in this case is one of law. Therefore, we review the trial court's action for correctness. Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985).

In Hogge, 649 P.2d at 53-54, the Utah Supreme Court held that in change of custody proceedings, the trial court must engage in a two-step bifurcated process. First, the court must determine whether there is sufficient evidence of a substantial and material change in circumstances forming the basis for the previous award to justify reexamination of the custody question. Second, and only if that finding is affirmative, the trial court may examine what placement is in the best interests of the child. Id.; Kramer v. Kramer, 738 P.2d 624, 625 (Utah 1987); Becker, 694 P.2d at 610; Fullmer v. Fullmer, 761 P.2d 942, 946 (Utah App.1988). The purposes of the bifurcated proceedings are to "protect the custodial parent from harassment by repeated litigation and protect the child from 'ping-pong' custody awards." Hogge, 649 P.2d at 53-54.

In Hogge, the court stressed the separateness of each step. In determining whether a change in circumstances has occurred, the court stated that only evidence relating to the "nature and materiality of any changes in those circumstances upon which the earlier award of custody was based" should be received. Hogge, 649 P.2d at 54. Evidence regarding the child's best interests would be heard only if a requisite change in circumstances was first found. Id.

Both the supreme court and this court have subsequently relaxed the distinction in cases where the issue of custody was not originally litigated. Elmer v. Elmer, 776 P.2d 599, 602-06 (Utah 1989); Maughan, 770 P.2d at 160. In Elmer, the supreme court noted that some flexibility is needed in order to promote the overriding value of the best interests of the child. Elmer, 776 P.2d at 604. The court therefore held that in change of custody cases involving nonlitigated decrees, the trial court can receive evidence of the child's best interests in applying the change in circumstances test. Id. at 604-05. Both appellate courts reasoned that moderation of the evidentiary process is justified because the trial court has not previously had an opportunity to make a thorough examination of the child's best interests. Id. at 603; Maughan, 770 P.2d at 160.

The question of whether bifurcation is still required in change of custody cases where custody was not originally litigated is not directly addressed in Elmer nor discussed in Maughan. Elmer 's focus is the scope of evidence allowed on the change of circumstances issue in such cases. It allows evidence of the best interests of a child to be introduced for determining changes in circumstances as well as for determining the best interests, if reached. Justice Durham, however, in a concurring and dissenting opinion, seems to assume that the majority decision in Elmer abolishes the bifurcation requirement in such cases, where she states: "I dissent, however, from the holding that trial courts should not determine changed circumstances before applying the best interests test in all custody cases." Elmer, 776 P.2d at 606.

It certainly is eminently practical to allow non-bifurcation where the same evidence will be relevant to both issues. Our preference in cases where custody was previously nonlitigated is to leave to the trial court's discretion the decision of whether or not to bifurcate the proceedings. That position appears to be consistent with Elmer, Maughan, and Hardy v. Hardy, 776 P.2d 917 (Utah App.1989). We therefore find no error in the court's failure to bifurcate in this case.

We note, however, that where the trial court does not bifurcate, it still must conduct a separate analysis and make separate findings as to substantial change in circumstances. Only if a substantial change of circumstances is found should the trial court consider whether a change of custody is appropriate given the child's best interests. As stated in Walton v. Walton, 814 P.2d 619, 621-22 (Utah App.1991),

[i]n Elmer, the Utah Supreme Court did not replace the Hogge- Becker test with a new test requiring the trial court to look solely at the best interests of the child. Rather, Elmer merely incorporated evidence concerning the best interests of the child into the changed circumstances test in nonlitigated custody cases.

See also Crouse v. Crouse, 817 P.2d 836, 838-39 (Utah App.1991).

Sufficiency of Evidence

Ms. Scott argues that neither the evidence presented nor the trial court's findings of fact support a change of custody. She argues specifically that: (1) a substantial and material change in circumstances was not established; and (2) the court did not adequately consider the factors necessary when determining the children's best interests.

A challenge to the sufficiency of the evidence concerns the trial court's findings of fact. Those findings will not be disturbed unless they are clearly erroneous. Crouse, 817 P.2d at 838; Walton, 814 P.2d at 621; Hagan v. Hagan, 810 P.2d 478, 481 (Utah App.1991) (citing Jense v. Jense, 784 P.2d 1249, 1251 (Utah App.1989)); Utah R.Civ.P. 52(a). The trial court's factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a "definite and firm conviction that a mistake has been made." State v. Bobo, 803 P.2d 1268, 1271-72 (Utah App.1990) (citations omitted). While we accord considerable deference to factual findings, we examine the conclusions of law arising from those findings under a correction-of-error standard, according no...