Fullmer v. Fullmer, 870499-CA

• Decision Date: 16 September 1988
• Docket Number: No. 870499-CA,870499-CA
• Citation: 761 P.2d 942
• Parties: Laura Lee Bloxham FULLMER, Plaintiff and Appellant, v. Brian Keith FULLMER, Defendant and Respondent.
• Court: Utah Court of Appeals

Page 942

761 P.2d 942

Laura Lee Bloxham FULLMER, Plaintiff and Appellant, v. Brian Keith FULLMER, Defendant and Respondent.

No. 870499-CA.

Court of Appeals of Utah.

Sept. 16, 1988.

Claudia Laycock (argued), Aldrich, Nelson, Weight & Esplin, Provo, for plaintiff and appellant.

Wayne B. Watson (argued), Watson & Seiler, Provo, for defendant and respondent.

OPINION

Before BILLINGS, GARFF and GREENWOOD, JJ.

BILLINGS, Judge:

This is an appeal from an order of the district court granting respondent's petition to modify the parties' divorce decree. The trial court found a change in circumstances which substantially and materially affected appellant's parenting ability and which justified reopening the custody issue. The trial court then concluded that it was in the best interests of the parties' minor son to transfer physical custody to respondent. In addition, the court awarded respondent the income tax exemption for the minor child, and set a new child support amount. We reverse and remand.

Appellant Laura Fullmer and respondent Brian Fullmer were married on November 22, 1980. Their only child, Dagin, was born on May 19, 1983. Appellant filed a complaint for divorce on September 17, 1984. Under the May 19, 1985 stipulated divorce decree, appellant was awarded custody of Dagin. Dagin was to live with appellant for nine months of the year and spend the summers with respondent. The decree also awarded respondent liberal visitation rights with Dagin. Respondent was ordered to pay appellant $200 per month in alimony and $150 per month in child support. The decree did not address which party could claim the dependent income tax exemption for Dagin.

Prior to the parties' divorce, appellant worked part-time. At the time of the divorce, appellant worked part-time and was enrolled in school, attending one to four hours a day. Immediately after the parties' divorce, respondent married Lynda and their daughter was born four months later.

After the divorce, appellant was forced to seek full-time work because she was unable to financially support herself and Dagin on the court-ordered $350 per month alimony and child support, which appellant asserts she received irregularly. Originally, appellant planned to move to New York City to seek employment. The night before she was to move to New York, appellant was served with respondent's petition to modify the child custody provisions of the decree together with a restraining order prohibiting her from leaving Utah. By this time, appellant had quit her job, moved out of her apartment, and sold most of her belongings. Consequently, after being served with respondent's petition, appellant was compelled to arrange temporary living accommodations and used the funds she had saved for her move to New York to retain an attorney. At first, appellant and Dagin resided with a friend of appellant's in Provo, Utah. Thereafter, appellant resided with her parents. Because her parents were remodeling their home, appellant asked respondent and his wife, Lynda, to temporarily care for Dagin in their home. Once appellant got on her feet financially, she moved to an apartment in Salt Lake City where she currently resides with Dagin.

Expecting to move to New York, appellant quit her part-time job at the Brick Oven Restaurant in Provo, Utah. Thereafter, she worked part-time for Nelson Laboratories in Salt Lake City for a gross monthly salary of $444. Because her salary and sporadic support payments were insufficient to support herself and Dagin, appellant accepted a full-time position as a legal receptionist for a law firm in Salt Lake City. Her gross monthly salary is now $950. As a result of her working full-time, appellant placed Dagin in a day care center located in Salt Lake City.

Respondent continues to be employed by WICAT Systems, Inc., where his current gross monthly salary is $2,630. Respondent's present wife is not employed outside the home and cares for their four year old daughter.

Since the parties' divorce in May 1985, Dagin has spent a substantial amount of time with both of his parents. The parties have cooperated in sharing time with Dagin and there has been no interference with the liberal visitation provided in the decree. Per the parties' stipulated divorce decree, respondent had physical custody of Dagin during June, July, and August 1985. In September 1985, appellant had physical custody of Dagin, and respondent exercised his regular visitation rights. In October, November, and December respondent had physical custody of Dagin more than half of the time. Respondent, because appellant had a difficult quarter at school, had primary physical custody of Dagin in January, February, and March 1986. During April and May 1986, appellant had physical custody of Dagin, and, as originally agreed, respondent had physical custody of Dagin June, July, and August 1986. Neither party nor the evaluator claim the liberal sharing of time with Dagin has been a problem in his development. Respondent's petition to modify the child custody provisions of the parties' divorce decree was filed in September 1986.

The evidence was presented to the trial court by proffer, with no witnesses testifying. The parties' respective counsel merely summarized what the witnesses would have said, had they testified. The parties stipulated to the receipt of two child custody reports. The most recent evaluation determined that both appellant and respondent were suitable parents. The evaluator believed Dagin was well adjusted and noted no negative allegations concerning appellant's care of Dagin. He further found that Dagin responded appropriately to both parents. The evaluator characterized his recommendation as a "close call" but nonetheless, concluded that the trial court should grant respondent's petition to modify and recommended that respondent be awarded physical custody of Dagin because of respondent's solid employment and more stable environment.

After hearing this "evidence," the trial judge remarked from the bench that he believed both parents were "intelligent, bright, loving, caring people." The trial judge was impressed by the fact that respondent had remarried and had established a stable home. The trial judge focused on the fact that appellant had obtained full-time employment and, as a result, had placed Dagin in a full-time day care center. In the judge's opinion, "[d]espite how good that day care center is, it is not a substitute for a mother in the home. I don't believe it can be or ever will be." Accordingly, the trial judge entered the following findings of fact:

The Court finds a material change in circumstances primarily due to the following:

a. The change in [appellant's] work schedule to full-time employment, necessitating the placement of the minor child, Dagin, in a day care center also on a full-time basis.

b. The remarriage of [respondent] and his creation thereby of a stable home environment where the child can be cared for by a stepmother who is a homemaker, not working outside the home, during those times when the father is working.

The Court having considered all appropriate factors related to the best interests of the child finds that the best interests of the child will be presently served by being placed with his father.

There was no specific finding that either parent was "fit and proper." The trial judge, because this case was a "close call," ordered the custody decision reviewed in one year.

The trial judge did not increase the alimony award, as requested by appellant in her counter petition, but reserved the alimony issue for review in one year. The court stated "[t]he alimony will remain the same. After one year I will give consideration to cutting off alimony because I don't think this is a situation that requires alimony to go on forever." Furthermore, the court concluded that respondent should not pay child support while he had physical custody of Dagin, but that he should pay appellant $250 per month during the three summer months when appellant would have physical custody of Dagin. The court awarded respondent, as the primary custodial parent, the right to claim the 1987 and 1988 income tax exemptions for Dagin.

The modification of custody order was stayed by order of this Court on November 12, 1987 pending appeal. Appellant appeals from each of these determinations.

STANDARD OF REVIEW

At the outset we emphasize that all of the evidence offered below was by proffer. The parties stipulated to this procedure. ¹ Consequently, we are in as good a position to review the proffer as was the trial court, as no assessment of witness credibility occurred below. Therefore, we review the proffered facts and draw our own legal conclusions therefrom. See Diversified Equities, Inc. v. American Sav. & Loan Ass'n, 739 P.2d 1133, 1136 (Utah Ct.App.1987), cert. granted; see also Zions First Nat'l Bank v. National Am. Title Ins. Co., 749 P.2d 651 (Utah 1988). After viewing the evidence in this light, the trial court's decision will not be disturbed absent a showing of an abuse of discretion or manifest injustice. See Kramer v. Kramer, 738 P.2d 624, 628 (Utah 1987); Fontenot v. Fontenot, 714 P.2d 1131, 1132-33 (Utah 1986) (per curiam).

CHILD CUSTODY

In order to modify child custody provisions of a divorce decree, the Utah Supreme Court requires trial courts to engage in a two-step bifurcated process. First, the court must consider if there has been a substantial change in the custodial parent's circumstances justifying a re-examination of the prior custody award. Second, and only if that finding is in the affirmative, may the trial court examine what placement is in the best interest of the child.

We conclude the trial court erred in (1) not adhering to the bifurcated procedure, (2) not focusing on appellant's change of circumstances and its effect on Dagin, (3) considering "changes" which were within the contemplation of respondent at the time of the divorce or...