Hudema v. Carpenter

Decision Date15 October 1999
Docket NumberNo. 981356-CA.,981356-CA.
Citation1999 UT App 290,989 P.2d 491
PartiesAbby (Carpenter) HUDEMA, Petitioner and Appellant, v. Wade CARPENTER, Respondent and Appellee.
CourtUtah Court of Appeals

Larry R. Keller, Keller & Lundgren, LC, Salt Lake City, for Appellant.

James M. Park, The Park Firm, Cedar City, for Appellee.

Before GREENWOOD, Associate P.J., BILLINGS, and ORME, JJ.


ORME, Judge:

¶ 1 Appellant Abby Hudema appeals the trial court's order awarding custody of her son, Jackson Carpenter, to her former husband, appellee Wade Carpenter. She particularly challenges the trial court's findings premised on her perceived moral and religious deficiencies. We affirm.


¶ 2 Hudema and Carpenter were married on November 3, 1989. Their son, Jackson, was born two and one-half years later. In September 1994, Hudema filed for divorce. After Hudema and Carpenter agreed to a stipulated settlement, the court entered a divorce decree incorporating the agreed terms early in 1995. ¶ 3 Pursuant to the stipulated agreement, the court ordered that Hudema and Carpenter share joint legal custody of Jackson, that Hudema have sole physical custody, and that Carpenter pay child support and have rights to reasonable visitation. For the next few months, both parents were closely involved with Jackson, but in June 1995, Carpenter moved from Davis County to Brian Head, Utah to accept a new job. Because this new position carried a higher salary, Hudema filed a petition to modify the divorce decree, requesting an increase in the amount of child support. Carpenter responded with his own petition to modify the divorce decree, arguing that changed circumstances required a modification of custody.

¶ 4 Since their divorce, Hudema and Carpenter have each remarried. On September 29, 1995, Carpenter married his new wife, Stacy. The Carpenters subsequently had a daughter, Shelby, Jackson's half-sister. In July 1997, Hudema moved to Arizona to join her new husband, Craig Hudema. The two were married in August of that year.

¶ 5 In April 1997, the court appointed Margaret Chapman, a licensed clinical social worker, as a custody evaluator to aid its custody determination. Chapman interviewed Hudema, Carpenter, and Jackson; observed Jackson with Hudema at their Davis County and Arizona homes, and Jackson with Carpenter in Brian Head; and reviewed various letters of reference. She then submitted her report to the court, recommending that Carpenter be awarded sole custody of Jackson, with liberal visitation for Hudema.

¶ 6 The matter was finally tried, after which the court entered its findings of fact and conclusions of law on May 8, 1998. The court granted custody of Jackson to Carpenter and visitation rights to Hudema. The court found there was a change in circumstances sufficient to allow modification of the divorce decree. Indeed, the parties agreed that the original custody and visitation arrangement had become unworkable and requested a change. In support of its disposition, the court made findings on many factors concerning Jackson's needs and his parents' character and abilities, in general conformance with the guidelines for child custody evaluations. See Utah Code Jud. Admin. R4-903.1 That is, the court made findings of fact bearing on each pertinent factor outlined in Rule 4-903. It also noted whether each finding was of neutral weight or supported awarding custody to one parent or the other.

¶ 7 Among the neutral factors, the court concluded that Jackson was attached to both parents; both home environments were stable and, although possessing different benefits and detriments, each location would be a positive environment; both parents strongly and equally desired custody; both parents were able to provide personal, rather than surrogate, care; neither parent was impaired by drugs or alcohol; both parents were of sufficient financial means to provide Jackson a good environment; and both parties exhibited a "lack of cooperation and maturity" in scheduling visitation, thus requiring a structured visitation schedule.

¶ 8 Turning to the findings favoring one parent or the other, the court concluded Jackson was precocious, happy, and well-adjusted under the existing arrangement, suggesting Hudema should retain custody. On the other hand, the court concluded these factors supported changing Jackson's custody to Carpenter: Jackson had a stronger bond with his father; Jackson had more kinship ties, including with his half-sister, Shelby, and Hudema's extended family, in southern Utah; and Chapman and other witnesses believed that it was in Jackson's best interests to award custody to Carpenter, and such recommendations were supported by the evidence.

¶ 9 Of particular concern in this appeal, the court found two additional factors favored granting Carpenter custody. First, the court found that because Hudema moved to Arizona in July 1997 and stayed with Craig Hudema pending their marriage the following month, a comparison of Carpenter's and Hudema's "moral character and emotional stability . . . favor[ed] placing Jackson with Wade Carpenter." Second, the court found Carpenter was more religiously compatible with Jackson than was Hudema. That is, even though Carpenter and Hudema were both members of the Church of Jesus Christ of Latter-day Saints (LDS or Mormon) and had agreed to raise Jackson in that faith, the court concluded that Carpenter was more religiously compatible with Jackson because Carpenter took Jackson to church and actively participated in religious activities with him, while Hudema took Jackson to church but did not always attend services with him.

¶ 10 After explaining its underlying findings and conclusions, the court noted that "both parents in this case love and care for Jackson a great deal" but concluded it was in Jackson's best interests for Carpenter to have primary custody. Accordingly, on May 8, 1998, the court entered an order modifying the divorce decree and granting Carpenter sole physical custody of Jackson, to begin after he completed kindergarten. Hudema was given structured visitation rights and ordered to pay child support.

¶ 11 Following trial, Hudema obtained new counsel. In April 1998, her new counsel filed various motions, including a motion for new trial and a motion to open judgment, to allow further testimony and an additional custody evaluation.2 The memorandum supporting the motion to open judgment requested that the court appoint a second evaluator, claimed Hudema received ineffective assistance of counsel at trial, and contained just under fifty pages of exhibits. Hudema's memorandum supporting her motion for new trial argued that the court failed to properly weigh the important interest in preserving the existing custody arrangement, the first custody evaluation was unfair, the court misconstrued the issue of religious compatibility, and Hudema received ineffective assistance at trial. It contained nearly 150 pages of exhibits. Hudema's new counsel also filed an objection to the proposed findings and conclusions prepared by Carpenter's counsel and requested a stay of execution pending ruling on Hudema's motions for new trial and to open judgment. The motion to open judgment and the motion for new trial were followed by a twenty-page affidavit of Hudema and numerous exhibits. The exhibits included affidavits of Jillynn Stevens, a Utah licensed clinical social worker, and Carol Mellen, Ph.D., a clinical psychologist employed in Phoenix, Arizona, both of whom conducted evaluations and recommended that Hudema retain custody, and twenty-seven letters of reference not submitted during trial. Later, in an apparent effort to exhaust all possible avenues of relief, Hudema's counsel also filed a motion for relief from judgment under Rule 60(b), incorporating the grounds raised in the prior motions and arguing mistake and excusable neglect by Hudema's prior counsel and surprise in the admission of evidence at trial.

¶ 12 Carpenter objected to Hudema's motions. Carpenter further moved to strike the exhibits and affidavits submitted with Hudema's motion for new trial and the affidavits of Hudema, Stevens, and Mellen, with accompanying exhibits, arguing Hudema was impermissibly attempting to retry the case with new evidence, albeit evidence that could have been presented at trial. Carpenter also requested attorney fees incurred in responding to Hudema's post-trial filings, arguing that the numerous exhibits and affidavits were not permitted under Rule 59 and violated applicable page limitations.

¶ 13 After a hearing on June 24, 1998, the court denied Hudema's motions and ordered all exhibits, affidavits, and letters—except Hudema's affidavit—stricken. The trial court agreed that Hudema was impermissibly attempting to retry the case and that Carpenter should be compensated for the attorney fees incurred in responding to the stricken material. Although Carpenter's counsel submitted an affidavit requesting $5,698.80, the trial court has not yet fixed the amount of attorney fees. On July 1, 1998, Hudema filed her notice of appeal.


¶ 14 Before turning to the issues raised by the parties, we address our jurisdiction to hear this appeal. Although neither party has moved to dismiss the appeal, we consider the matter sua sponte to clarify an area of possible misunderstanding. See In re Adoption of Baby K., 967 P.2d 947, 949 n. 2 (Utah Ct.App.1998) ("[T]he parties' acquiescence does not confer jurisdiction on the court, `and a lack of jurisdiction can be raised by the court or either party at any time.'") (quoting A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325 (Utah 1991)).

¶ 15 This court has jurisdiction to hear an appeal as of right only if a notice of appeal is timely filed. See Utah R.App. P. 3(a); State v. Jiminez, 938 P.2d 264, 265 (Utah 1997) (holding no jurisdiction where notice of appeal was prematurely filed); Kay v. Summit Sys., Inc., 924 P.2d 338,...

To continue reading

Request your trial
35 cases
  • Miller v. Miller
    • United States
    • Utah Court of Appeals
    • December 24, 2020
    ...has occurred that would warrant reconsidering the original decree" as a "legal conclusion" (quotation simplified)); Hudema v. Carpenter , 1999 UT App 290, ¶ 21, 989 P.2d 491 (same). As a result, if changed-circumstances allegations clearly raise only circumstances that our courts have alrea......
  • Zavala v. Zavala
    • United States
    • Utah Court of Appeals
    • January 14, 2016
    ...child's best interest. Id. And this court has held, "Although the court considers many factors, each is not on equal footing." Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. "Generally, it is within the trial court's discretion to determine, based on the facts before it and withi......
  • Clarke v. Clarke
    • United States
    • Utah Court of Appeals
    • November 23, 2012
    ...given to which parent has been the child's primary caregiver.” (citing Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986))); accord Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491 (considering the best interest of the child in a custody modification case, and explaining that a “critical......
  • Black v. Hennig
    • United States
    • Utah Court of Appeals
    • November 26, 2012
    ...status and the stability of the children. We review custody determinations under an abuse of discretion standard, see Hudema v. Carpenter, 1999 UT App 290, ¶ 21, 989 P.2d 491, giving the district court broad discretion to make an initial custody award, see Carsten v. Carsten, 2007 UT App 17......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT