Larson v. Larson

• Citation: 888 P.2d 719
• Decision Date: 30 December 1994
• Docket Number: No. 930550-CA,930550-CA
• Parties: Alicia LARSON, Plaintiff and Appellant, v. Marc LARSON, Defendant and Appellee.
• Court: Court of Appeals of Utah

Page 719

888 P.2d 719

Alicia LARSON, Plaintiff and Appellant, v. Marc LARSON, Defendant and Appellee.

No. 930550-CA.

Court of Appeals of Utah.

Dec. 30, 1994.

John D. Sheaffer, Jr., Salt Lake City, for appellant.

Ellen Maycock, Salt Lake City, for appellee.

Kathryn D. Kendell, Salt Lake City, for amicus curiae American Civil Liberties Union.

Before BILLINGS, ORME and WILKINS, JJ.

OPINION

ORME, Associate Presiding Judge:

Alicia Larson appeals the trial court's order modifying the child custody and visitation provisions of a divorce decree. She also challenges the trial court's decision not to award her costs and attorney fees incurred in contesting the modification of the divorce decree initiated by her ex-husband. We reverse the trial court's ruling modifying the divorce decree, but affirm its decision not to award costs and attorney fees.

FACTS

After nine years of marriage, Alicia and Marc Larson were divorced on April 29, 1992. The marriage produced three children, the oldest of whom was eight and the youngest of whom was five at the time the court modified the divorce decree. Prior to her marriage, Alicia supported herself as a stained-glass artist. During the marriage and at the time of the divorce, Alicia was a homemaker, not otherwise employed outside the home, and Marc owned and operated a physical therapy clinic in Park City, Utah.

The decree of divorce incorporated the parties' stipulation and property settlement agreement and provided, in part, that Marc and Alicia maintain joint legal custody of the children, with physical custody to be with Alicia. Marc was awarded extensive rights of visitation, including two-and-one-half weekends per month, extended summer visits, and an equal share of time with the children during the holidays.

The parties were ordered to cooperate in fostering and maintaining each other's relationship with their children and to inform one another of important issues in the children's lives to facilitate joint decision-making. Consistent with this general mandate was the specific requirement that each party was to give the other a minimum of thirty days written notice prior to relocating from the Park City area.

The parties and their children have lived in Park City since 1989. Alicia and the children continued to reside together in Park City following the divorce, as did Marc in a separate home. In the summer of 1992, Alicia attended a workshop in Oregon to receive instruction in glass fusion, an advanced form of stained-glass art. During this workshop, Alicia met Doug Pomeroy, a glass fusion artist and an instructor at the workshop. Subsequently, Alicia and Doug made plans to marry and thereafter live together with the Larson children in Doug's home in Corvallis, Oregon. In October 1992, Alicia notified Marc, by letter, that she intended to marry Doug Pomeroy and move to Corvallis with the children.

On November 6, 1992, Marc filed a petition to modify the custody provisions of the divorce decree. Marc filed the petition because he was concerned that the move to Oregon would not be in the children's best interest, as it would inhibit his ability to maintain a parental relationship with his children, disrupt their religious training, and remove them from their friends and relatives. After an evidentiary hearing, the trial court granted Marc's petition to modify the divorce decree. The court found that it was in the best interests of the children to remain in the Park City area and ordered that if Alicia moved from Summit County, Utah, physical custody of the children would thereupon be transferred to Marc, and Alicia would then have reasonable and liberal rights of visitation. The trial court also determined that the parties had the ability to pay their own costs and attorney fees.

Alicia Larson appeals, raising the following issues: (1) Was there sufficient evidence to support the trial court's findings? (2) Did the trial court abuse its discretion in granting Marc's petition to modify? (3) Did the trial court abuse its discretion in failing to award costs and attorney fees to Alicia? Alicia also seeks attorney fees on appeal.

DECISION TO MODIFY

We will uphold a trial court's decision to modify a divorce decree if it is within the range of sound discretion. ¹ See Crouse v. Crouse, 817 P.2d 836, 838 (Utah App.1991). The trial court determined that the children should be removed from the custody of their mother and placed in their father's custody if--but only if--Alicia were to move beyond the boundaries of Summit County, Utah. ² The focus of the trial court's analysis and decision, then, was not on the parties' respective parenting skills. ³ Instead, the court's order can only be taken to mean that the trial court believed that the children's domicile in Summit County is so essential to their well-being that removal from that community would be more detrimental to them than separating them from their custodial parent--the person who has been primarily responsible for their day-to-day care for the entirety of their lives. While such a conclusion is not inherently impossible, a factor of considerable importance in determining the best interest of children is the maintenance of continuity in their lives, and removing children from their existing custodial placement undercuts that policy. ⁴ See, e.g., Hirsch v. Hirsch, 725 P.2d 1320, 1323 (Utah 1986) (Zimmerman, J., concurring); Hutchison v. Hutchison, 649 P.2d 38, 41 (Utah 1982); Nielsen v. Nielsen, 620 P.2d 511, 512 (Utah 1980); In re Cooper, 17 Utah 2d 296, 298-99, 410 P.2d 475, 476 (1966); In re Application of Conde, 10 Utah 2d 25, 29, 347 P.2d 859, 861 (1959); Rosendahl v. Rosendahl, 876 P.2d 870, 873 (Utah App.), cert. denied, 883 P.2d 1359 (Utah 1994); Cummings v. Cummings, 821 P.2d 472, 478-79 (Utah App.1991); Moon v. Moon, 790 P.2d 52, 54 (Utah App.1990). Therefore, unless there were compelling evidence that residing in Summit County, Utah, would be better for the children than allowing them to continue to reside with their life-long primary caregiver, we would conclude that the trial court exceeded the exercise of sound discretion in entering the order before us.

SUFFICIENCY OF EVIDENCE TO SUPPORT FINDINGS

In reviewing the trial court's decision, we focus on its findings of fact. "We will not disturb such findings unless they are clearly erroneous." Crouse v. Crouse, 817 P.2d 836, 838 (Utah App.1991). See Utah R.Civ.P. 52(a). Alicia Larson, as the appellant, has the burden of marshalling the evidence in support of the challenged findings, and then of demonstrating that those findings are so void of support as to be clearly erroneous. Hagan v. Hagan, 810 P.2d 478, 481 (Utah App.1991). See West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1313 (Utah App.1991). Alicia has met her initial burden by adequately marshalling the evidence supporting the factual findings in question, which she then challenges as being clearly erroneous.

Although Alicia assails seven of the findings made by the court, we need only focus on those findings which bear on its conclusion that the children's living with their father in Park City is preferable to the children's living with their mother in Corvallis. ⁵ In this regard, the court found, with our emphasis, that

[d]uring the marriage, both parents and the children attended the LDS Church and were active in the LDS Church. Since the separation of the parties, plaintiff has ceased to be active in the LDS Church. Defendant remains active and wishes to keep the children active in the LDS Church. The court finds that it is unlikely that, if the children were to move to Corvallis, Oregon, plaintiff would continue their religious training.

Alicia's "religious compatibility" with her children is an appropriate factor for the court to consider. The Utah Supreme Court has previously decided that a parent's "religious compatibility" with his or her children is one factor that a court may consider in determining the children's best interest. Hutchison v. Hutchison, 649 P.2d 38, 41 (Utah 1982). To date, neither Utah appellate court has had occasion to define what is meant by "religious compatibility."

We believe the compatibility of a parent's and child's religious beliefs is not a matter that the court should consider, ⁶ absent some showing that religious beliefs are translated into actions that are harmful to a child's welfare. See Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130, 1152 (1990) (holding parents' relative religious devoutness cannot be considered in custody decisions).

Instead, religious compatibility is only a factor when there has been a showing that specific religious beliefs or practices are contrary to the child's general welfare. See, e.g., In re Marriage of Short, 698 P.2d 1310, 1313 (Colo.1985) (proper to consider religious beliefs and practices that are "reasonably likely to cause present or future harm to the physical or mental development of the child"); Osteraas v. Osteraas, 124 Idaho 350, 355, 859 P.2d 948, 953 (1993) (religiousness of parent not a factor in custody decision absent compelling reason otherwise); Compton v. Gilmore, 98 Idaho 190, 192, 560 P.2d 861, 863 (1977) (considering parents' conflicting religious beliefs improper absent "clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child").

In the instant case, if there were a showing that Alicia's actions would have inhibited or stopped the children from continuing in the religious traditions to which they were accustomed, such actions could disrupt the stability and continuity of the children's lives and thus have some bearing on the trial court's decision. See Morris v. Morris, 271 Pa.Super. 19, 412 A.2d 139, 142 & n. 1 (1979). But see Felton v. Felton, 383 Mass. 232, 418 N.E.2d 606, 607-08 (1981) (observing that diversity of religious experience can be beneficial to child's welfare). However, the record in the instant case does not...