Hogge v. Hogge

• Decision Date: 17 June 1982
• Docket Number: No. 17782,17782
• Citation: 649 P.2d 51
• Parties: Craig B. HOGGE, Plaintiff and Appellant, v. Tamra HOGGE (Jackman), Defendant and Respondent.
• Court: Utah Supreme Court

Page 51

649 P.2d 51

Craig B. HOGGE, Plaintiff and Appellant, v. Tamra HOGGE (Jackman), Defendant and Respondent.

No. 17782.

Supreme Court of Utah.

June 17, 1982.

Richard P. Makoff, Kent T. Yano, Salt Lake City, for plaintiff and appellant.

Tim W. Healy, Ogden, for defendant and respondent.

OAKS, Justice:

This is an appeal from an order of the district court transferring custody of the parties' minor sons from appellant husband to respondent wife. The case requires us to clarify the relationship between two legal principles: first, the requirement that a court modify a decree awarding custody of a minor child only where warranted by a showing of a substantial change in circumstances; and, second, the court's obligation to decree whatever custody arrangements serve the best interests of the child.

The parties were divorced in May, 1979, when their twin sons were nineteen months old. At that time, respondent was unable to care properly for the two sons because she was experiencing emotional problems attendant to the divorce, and the court awarded custody to appellant and visitation rights to respondent. A year later, respondent sought to obtain custody of the twins, alleging significant changes in circumstances since the divorce. At the hearing in February, 1981, respondent presented evidence that she had overcome her emotional problems following the divorce, that she had again become a responsible and capable parent, and that she had remarried happily and could provide a loving and stable family environment for the two boys, now three years of age. On the basis of this and other evidence, the district court modified the divorce decree to transfer custody of the two boys to respondent, and this appeal was taken.

I.

By statute, the district court has continuing jurisdiction over the subject matter of a divorce and may later make such changes in custody provisions as it determines are "reasonable and necessary" for the welfare and "best interests" of the child. U.C.A., 1953, §§ 30-3-5(1), 30-3-10. However, since a custody decree is predicated on a particular set of facts, that decree is res judicata and will not be modified in the absence of a showing of a "substantial" or "material" change of circumstances which warrants doing so. Trego v. Trego, Utah, 565 P.2d 74, 75 (1977); Smith v. Smith, Utah, 564 P.2d 307, 309 (1977). Thus, this Court has held that where there is no allegation of a substantial or material change of circumstances, a petition to modify a custody decree should be dismissed. Perkins v. Perkins, Utah, 522 P.2d 708 (1974) (visitation rights). See also Cody v. Cody, 47 Utah 456, 469, 154 P. 952, 957 (1916) (custody, child support, alimony, etc.). Similarly, we have said that a custody decree should not be modified unless changed circumstances are demonstrated. Nielsen v. Nielsen, Utah, 620 P.2d 511, 512 (1980); Anderson v. Anderson, 13 Utah 2d 36, 39, 368 P.2d 264, 265-66 (1962).

From these authorities, it appears that the trial court's decision whether to modify the provisions of a custody decree to transfer custody to another party involves two steps: (1) an initial decision whether there are changed circumstances warranting the exercise of the court's continuing jurisdiction to reconsider the custody award, and, if so, (2) a subsequent decision as to the manner in which custody should be modified, if at all.

In theory or in practice, some decisions of this Court seem to have ignored this two-step or bifurcated approach to the modification of custody awards. In these cases, it is unclear whether a showing of changed circumstances is a threshold requirement for the court's reconsideration of a custody award or whether the changed circumstances are merely one part of the evidence relevant to the court's consideration of the welfare or best interests of the child. Thus, some cases appear to ignore the initial question of changed circumstances and address themselves immediately to determining the best interests of the child. Bingham v. Bingham, Utah, 575 P.2d 703 (1978); Plumb v. Plumb, Utah, 555 P.2d 1205 (1976); Finnegan v. Finnegan, Utah, 535 P.2d 1159 (1975); Smith v. Smith, 1 Utah 2d 75, 262 P.2d 283 (1953). In other cases, the rule of changed circumstances is merely noted in passing, but its demonstration is assumed or the issue is subsumed in the court's determination of the best interests of the child. Kallas v. Kallas, Utah, 614 P.2d 641, 643, 645 (1980); Johnson v. Johnson, 7 Utah 2d 263, 267-68, 323 P.2d 16, 19 (1958). Still other cases have stated but not applied the rule, and instead seem to have based their decisions solely on the "welfare" or "best interest" of the child, Nielsen v. Nielsen, supra; Motzkus v. Motzkus, 17 Utah 2d 154, 406 P.2d 31 (1965), or partly on the presence or absence of changed circumstances and partly on the best interests of the child. Smith v. Smith, supra; Trego v. Trego, supra.

After careful review of all the foregoing cases, we expressly re-affirm and adopt the bifurcated procedure implicit in the language of Perkins v. Perkins, supra, and Cody v. Cody, supra, in which the decision whether to modify custody arrangements follows two steps. Under that procedure, a court would not reopen the custody question until it had first made a threshold finding of substantially changed circumstances. This would protect the custodial parent from harassment by repeated litigation and protect the child from "ping-pong" custody awards. In applying the bifurcated procedure that is followed in Oregon, the court in Remillard and Remillard, 30 Or.App. 1111, 569 P.2d 651, 653 (1977), emphasized "the importance of a stable and secure homelife for children who are shifted from one parent figure to another and required to make adjustments attendant upon such changes." In apparent response to the importance of stability in custody arrangements, many states have adopted a bifurcated procedure for considering petitions to modify custody awards. E.g., Black v. Black, 114 Ariz. 282, 560 P.2d 800 (1977); Smith v. Smith, Fla.App., 212 So.2d 117 (1968); Matter of Marriage of Greisamer, 276 Or. 397, 555 P.2d 28 (1976); Goldstein v. Goldstein, 115 R.I. 152, 341 A.2d 51 (1975); Raven v. Cecil, 262 S.C. 509, 205 S.E.2d 837 (1974); Masek v. Masek, 90 S.D. 1, 237 N.W.2d 432 (1976); Gokey v. Gokey, 127 Vt. 334, 248 A.2d 738 (1968). ¹

Accordingly, we hold that in the future a trial court's decision to modify a decree by transferring custody of a minor child must involve two separate steps. In the initial step, the court will receive evidence only as to the nature and materiality of any changes in those circumstances upon which the earlier award of custody was based. In this step, the party seeking modification must demonstrate (1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody. The trial court must make a separate finding as to whether this burden of proof has been met. If so, the court, either as a continuation of the same hearing, or in a separate hearing, will proceed to the second step. However, where that burden of proof is not met, the trial court will not reach the second step, the petition to modify will be denied, and the existing custody award will remain unchanged.

In the second step, having found that a substantial and material change in circumstances justifies a reconsideration of the custody award, the trial court must consider the changes in circumstance along with all other evidence relevant to the welfare or best interests of the child, including the advantage of stability in custody arrangements that will always weigh against changes in the party awarded custody. The court must determine de novo which custody arrangement will serve the welfare or best interest of the child, and modify, or refuse to modify, the decree accordingly.

A similar two-step procedure should be followed where the petition to modify a custody decree requests a material change in visitation rights. See, e.g., Perkins v. Perkins, supra.

II.

In this case, the district court properly followed the bifurcated procedure. It is apparent that a material circumstance relied upon in originally awarding appellant custody of the infant twins was the fact that respondent was then unable to care for the children because of emotional illness attendant to the divorce. At the hearing on the petition to modify, respondent produced ample evidence that since the divorce she had overcome her emotional problems and had again become a capable, responsible parent. Based on this evidence, the district court specifically found that respondent's "emotional stability had returned" and concluded "that a substantial change of circumstances has occurred since (appellant) was awarded custody of the minor children in May 1979 in that (respondent's) emotional problems have been overcome." ² This finding, which is amply supported by the evidence, is sufficient to justify relitigation of the question of custody. Hence, the court properly proceeded to the second...