Harper v. Harper, 011421 UTCA, 20190351-CA

Docket Nº20190351-CA
Party NameKelley Harper, Appellee, v. Damon M. Harper, Appellant.
AttorneyD. Grant Dickinson, Attorney for Appellant Anthony C. Kaye, Melanie J. Vartabedian, Allison G. Belnap, and Nathan R. Marigoni, Attorneys for Appellee
Judge PanelJudge Jill M. Pohlman authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.
Case DateJanuary 14, 2021
CourtCourt of Appeals of Utah

2021 UT App 5

Kelley Harper, Appellee,


Damon M. Harper, Appellant.

No. 20190351-CA

Court of Appeals of Utah

January 14, 2021

Fourth District Court, Provo Department The Honorable James R. Taylor No. 104402558

D. Grant Dickinson, Attorney for Appellant

Anthony C. Kaye, Melanie J. Vartabedian, Allison G. Belnap, and Nathan R. Marigoni, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.


¶1 Damon M. Harper (Harper) appeals the district court's order denying his petition to modify custody. He contends that the court should have concluded that circumstances had changed substantially, justifying a modification, based on temporary conditions that had been resolved by the time of trial and based on the temporary custody arrangement that was in place during the proceedings on his petition. We affirm.


¶2 In 2012, Harper divorced Kelley Harper, who is now known as Ian Giles (Giles).2 Harper and Giles have one child (Child). After trial, the court awarded joint legal custody to both parents and awarded primary physical custody of Child to Giles. The divorce decree further provided that "both parties shall be completely open about where [Child] will be, where she can be reached, and who will be providing substitute care for [her]."

¶3 One day in October 2015, Giles failed to pick up Child from school. The school then contacted Harper, but before Harper arrived-and unbeknownst to Harper-Giles had arranged for a proxy to pick up Child. Giles did not answer Harper's subsequent calls and was not home to inform Harper of Child's whereabouts, prompting Harper to call the police. Giles did not thereafter offer an explanation or disclose why they had not kept Harper informed.

¶4 In the spring of 2016, Harper learned that Child had accrued absences and tardies at school. He also learned that during the October 2015 incident, Giles was at the hospital and that some of Giles's acquaintances were concerned for Giles's health.

¶5 In April 2016, Harper filed a petition to modify the divorce decree, seeking, as relevant here, primary custody of Child. Relying chiefly on the October 2015 incident, Child's school attendance problems, and concerns about Giles's health, Harper asserted that "a material and substantial change in circumstances" existed to justify modifying the divorce decree. Harper simultaneously applied for a temporary restraining order that would award him immediate primary care and custody of Child.

¶6 At a hearing on April 18, 2016, a domestic relations commissioner determined that a temporary modification of custody was warranted. The commissioner thus awarded temporary custody of Child to Harper and ordered that Giles would have supervised parent-time with Child. A final amended order from the hearing was entered on May 6, 2016 (the Temporary Order). Giles did not timely object to this ruling, and Child remained in Harper's custody. Thus, the Temporary Order-which, as the district court later explained, was "never intended to extend beyond a trial on the merits of the petition to modify the original decree"-remained in place until the petition to modify was tried to the bench in November 2018.[3]

¶7 During trial, Harper argued that a material and substantial change in circumstances had occurred since the original custody award was entered because Giles "has become less capable of caring for [Child] as a result of a degradation" in Giles's health and that these health issues had "negative effects" on Child, including increased tardies and less success in school. The district court ultimately rejected Harper's argument that there was a change in circumstances.

¶8 The court found that although Giles acknowledged experiencing temporary health issues between the fall of 2015 and the spring of 2016, Giles credibly testified that their health problems resulted from "an unanticipated reaction to prescribed medication" and that they improved when their doctors modified their prescription. The court similarly noted that one doctor concluded that Giles's health concerns during that period "were situational-related to events." It also found that Giles was "capable of feeding, loving, and caring" for Child and that nothing in Giles's life or parenting style was "threatening or potentially harmful" to Child. Additionally, the court found Harper had not produced sufficient evidence that Giles's health concerns had "significantly or substantially inhibited [their] ability to care for and meet [Child's] needs" or that Giles "lack[ed] the sufficient human, monetary, or other resources to care for [Child]." The court further found that both Harper and Giles have "an uncommon willingness to see to [Child's particular] needs." And even though the ability of the parents to communicate openly about Child's care and location was "suppressed for a time" as Giles dealt with personal problems, "that inability is now resolved."

¶9 The court then determined that there was no showing of the requisite change in circumstances to justify modifying the divorce decree. It reasoned that the "permanence of an alleged changed circumstance matters" given that "[p]ersons become ill occasionally and no one is permanently [in] best" health. For example, and in line with public policy, the court observed that "it is expected in periods of temporary disability that a joint parent will step in to see to the best interests of a child." But if "such a circumstance were to justify a reconsideration of custody . . ., it would discourage openness, cooperation, and communication that is core to expected behavior under joint custody orders." The court then determined that the circumstances from the fall of 2015 to the summer of 2016 "were concerning" and that "[i]mmediate action to protect" Child in "the form of [the Temporary Order] was justified." Yet the court found that "not long after the flurry of activity in 2016, [Giles] recovered to the same capacities that resulted in an order of primary physical custody at the time of divorce in 2012."

¶10 Because Harper "failed to establish that a material, substantial change of circumstances has occurred which would justify setting aside the conclusion of [the court] from 2012," the court concluded that "[f]urther consideration of [Child's] best interests is therefore not possible under Utah law." The court accordingly denied Harper's petition to modify the divorce decree. Consequently, although Child had remained in Harper's custody from the time of the Temporary Order until trial-a period lasting around two and a half years-the court ordered that the custody arrangement under the divorce decree would be restored and "primary custody and care for [Child] will transition back to [Giles]." Harper appeals.


¶11 Harper contends that the district court erred in declining to determine that a change in circumstances had occurred that would justify modifying the custody arrangement in the divorce decree. We...

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