GRINDSTAFF v. GRINDSTAFF

• Citation: 241 P.3d 365,2010 UT App 261
• Decision Date: 23 September 2010
• Docket Number: No. 20090505-CA.,20090505-CA.
• Parties: Olga Lucia GRINDSTAFF, Petitioner and Appellant, v. Robert Lee GRINDSTAFF, Respondent and Appellee.
• Court: Court of Appeals of Utah

241 P.3d 365

2010 UT App 261

Olga Lucia GRINDSTAFF, Petitioner and Appellant,

v.Robert Lee GRINDSTAFF, Respondent and Appellee.

No. 20090505-CA.

Court of Appeals of Utah.

Sept. 23, 2010.

COPYRIGHT MATERIAL OMITTED.

James G. Clark, Provo, for Appellant.

Guy L. Black, Provo, for Appellee.

Before Judges DAVIS, McHUGH, and ROTH.

MEMORANDUM DECISION

McHUGH, Associate Presiding Judge:

¶ 1 Olga Lucia Grindstaff (Wife) appeals from the trial court's orders awarding sole legal and physical custody of the parties' five children to the children's father, Robert Lee Grindstaff (Husband), excluding Wife's expert, and denying Wife's request for attorney fees. We affirm.

[1] ¶ 2 Wife does not challenge the trial court's factual findings, and therefore, we “accept the[ ] findings as true in our analysis on appeal,” see d'Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147 P.3d 515. When she first met Husband in 1995, Wife already had three children of her own. Wife and Husband got married in 1996 and the marriage produced five additional children, including one child with special needs. In 2006, Wife filed for divorce so that she could move to Nevada and marry another man with whom she had become romantically involved. Both Husband and Wife sought legal and physical custody of their five children. ¹ After receiving a custody evaluation and conducting a trial, the trial court awarded custody to Husband, with Wife receiving parent time rights as a relocating parent, see Utah Code Ann. § 30-3-37 (Supp.2010), ² due to her move to Nevada. ³ The trial court also denied Wife's request for attorney fees incurred when Wife successfully brought an order to show cause to enforce a temporary support order. Wife now appeals from the trial court's rulings.

[2] [3] ¶ 3 Wife first asserts that the trial court “failed to properly analyze, weigh, and apply the statutory and common law [custody] factors,” and therefore erred in awarding custody to Husband. We review custody determinations under an abuse of discretion standard, Hudema v. Carpenter, 1999 UT App 290, ¶ 21, 989 P.2d 491, giving the trial court “broad discretion” to make an initial custody award, see Davis v. Davis, 749 P.2d 647, 648 (Utah 1988). On appeal, we “may not engage in a reweighing of the evidence,” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435; see also Hutchison v. Hutchison, 649 P.2d 38, 41 (Utah 1982) (“Assessments of the applicability and relative weight of the various [custody] factors ... lie within the discretion of the trial court.”), and we will affirm the trial court's custody award so long as the trial court's “discretion is exercised within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions,” Davis, 749 P.2d at 648 (citation omitted).

¶ 4 Wife contends that the trial court abused its discretion because it did not give proper weight to her claim that she was the primary caretaker of the children and the fact that she was able to provide personal care for the children while Husband had to use surrogate care due to his work schedule. In making a custody determination, a trial court's primary focus is what custody arrangement would be in the best interests of the child. See Utah Code Ann. § 30-3-10(1)(a) (“In determining any form of custody, the court shall consider the best interests of the child....”); Cummings v. Cummings, 821 P.2d 472, 478 (Utah Ct.App.1991) (“The overriding consideration in child custody determinations is the child's best interests.”). To make such a determination, courts consider numerous factors, including those set forth in Utah's custody statutes, see Utah Code Ann. §§ 30-3-10(1)(a), -10.2(2)(a)-(j) (2007 & Supp.2010), and “any other factors the court finds relevant,” id. § 30-3-10.2(2)(j) (2007). See generally Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986) (stating that a trial court's custody determination should “be based on function-related factors”); Hutchison, 649 P.2d at 41 (identifying the typical factors that trial courts consider in determining which party should be awarded custody). Because these factors are not “on equal footing” and the weight given to each may “range[ ] from the possibly relevant to the critically important,” a trial court must exercise its “discretion to determine ... where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Hudema, 1999 UT App 290, ¶ 26, 989 P.2d 491.

[7] [8] ¶ 5 In support of her argument that the trial court failed to give proper weight to the fact that she was the children's primary caretaker, Wife relies on previous appellate court authority stating that “considerable weight should be given to which parent has been the child's primary caregiver,” Davis, 749 P.2d at 648. While Wife is correct that the primary caretaker factor is among the most important a court considers, see Hudema, 1999 UT App 290, ¶ 26, 989 P.2d 491 (“At the critically important end of the spectrum, when the child is thriving, happy and well-adjusted, lies continuity of placement.” (citing Davis, 749 P.2d at 648)), she mischaracterizes the findings and conclusions of the trial court. In its findings, the trial court expressly stated that the primary caretaker factor favored neither party because Husband and Wife “were equally engaged in the care and nurturing of the children before the divorce.” (Emphasis added.) Because Wife does not challenge that finding, ⁴ we reject her argument that the trial court failed to properly weigh her claim that she was the children's primary caretaker. ⁵ ¶ 6 We also find no error in the weight given to the fact that Wife was in the best position to provide personal rather than surrogate care after the divorce. The record demonstrates that the trial court took that factor into consideration, expressly stating that it was “a strong argument that [Wife] should have custody.” The trial court then weighed that factor against its findings that stability and remaining in the present schools and community was “important for all the children but critical for the special needs child,” and that Husband was “the most likely to provide a stable, nurturing home life.” (Emphasis added.) The trial court ultimately concluded that Husband should be awarded custody because the “critical” need for stability “outweigh[ed] any negative consequences” associated with surrogate care. ⁶ Given the trial court's unchallenged finding that stability was of critical importance, we find no error in the trial court's conclusion that it would be in the children's best interest to award custody to Husband based on its conclusion that the need for stability outweighed Wife's ability to provide personal care. Cf. Hanson v. Hanson, 2009 UT App 365, ¶¶ 3, 7, 223 P.3d 456 (finding the fact that the father was less likely to restrict access to the other parent sufficiently “compelling” to outweigh the fact that mother had been the children's lifelong caregiver); Larson v. Larson, 888 P.2d 719, 723 (Utah Ct.App.1994) (indicating that “compelling evidence” that the children's best interests would be served by remaining within a particular community may outweigh other important factors such as “allowing them to continue to reside with their life-long primary caregiver”).

[10] ¶ 7 For similar reasons, we also reject Wife's contention that the trial court erred by failing to grant her joint legal custody of the children. Joint legal custody “means the sharing of the rights, privileges, duties, and powers of a parent by both parents,” Utah Code Ann. § 30-3-10.1(1)(a) (2007), and many of the same factors relevant to a physical custody determination are also relevant to the question of whether joint legal custody is appropriate, see id. § 30-3-10.2(2)(c)-(d). The trial court found that only two of those factors weighed in favor of joint legal custody: the parties' equal participation in raising the children prior to the divorce and the parties' ability to encourage the children to have a positive relationship with the other parent, see id. § 30-3-10.2(2)(a)-(b), (e), (g)-(j). In contrast, the trial court found that the following statutory factors-which also weighed in favor of a custody award to Husband-weighed against joint legal custody: the parties' inability to cooperate and work together on matters affecting the children, the parties “radically different ideas” about and Wife's failure to communicate with Husband regarding medical care for the child with special needs, Wife's reported abusive conduct and unwillingness to put the children's needs above her own in making decisions, and the substantial distance between the parties' homes. ⁷ See id. These unchallenged facts support the trial court's finding that it would have been difficult for the parties to share parenting responsibilities as required in a joint legal custody context, see id. § 30-3-10.1(1)(a). Therefore, we hold that the trial court did not exceed its discretion in concluding that joint legal custody was not in the children's best interest.

¶ 8 Wife next argues that the trial court abused its discretion when it found that her expert witness was unqualified and excluded the expert's testimony. “It is well established that trial courts have wide discretion in determining the admissibility of expert testimony. Consequently, absent a clear abuse of this discretion, an appellate court will not reverse the trial court's determination.” State v. Kelley, 2000 UT 41, ¶ 11, 1 P.3d 546 (citations omitted).

¶ 9 Rule 702(a) of the Utah Rules of Evidence provides that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Utah R. Evid. 702(a...