Martinez v. Sanchez-Garcia

• Docket Number: 20210829-CA
• Decision Date: 02 June 2023
• Parties: Daisy Martinez Appellant, v. Fernando Sanchez-Garcia, Appellee.
• Court: Utah Court of Appeals

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2023 UT App 60

Daisy Martinez Appellant,
v.
Fernando Sanchez-Garcia, Appellee.

No. 20210829-CA

Court of Appeals of Utah

June 2, 2023

First District Court, Logan Department The Honorable Brian G. Cannell No. 154100308

Ashley E. Bown, Attorney for Appellant

Wayne K. Caldwell, Attorney for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and John D. Luthy concurred.

HARRIS, JUDGE

¶1 When Daisy Martinez and Fernando Sanchez-Garcia divorced, they both lived in Cache County and, under the terms of their stipulated divorce decree, Martinez was the primary physical custodian of and caregiver for their children. Some two years later, Martinez moved with the children to Layton, about sixty miles away. At that point, Sanchez-Garcia asked for a modification of the custody arrangement, one that would give him primary physical custody of the children in Cache County. After a trial, the court ruled in favor of Sanchez-Garcia, modifying the custody order to make him the primary physical custodian, unless Martinez were to move back to Cache County. Martinez now appeals the court's modification order, asserting that the court failed to make a finding that circumstances had materially

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and substantially changed, and that the court failed to take into account her status, up to that point, as primary caregiver. We find merit in Martinez's arguments, and therefore vacate the court's modification order and remand for further proceedings.

BACKGROUND

¶2 After five years of marriage, Martinez and Sanchez-Garcia divorced in 2017. Their stipulated divorce decree provided that the parties would share "joint legal custody and joint physical custody" of their two children, and that Martinez would have primary physical custody, with Sanchez-Garcia awarded parent-time that was something less than 50/50. The decree required the parties to "inform each other of any change of address . . . at least thirty (30) days prior to the change, if practicable," and stated that, if "either party relocate[s] to a residence more than 150 miles away," then "the relocating party shall provide notice pursuant to" Utah's relocation statute. See Utah Code § 30-3-37.

¶3 Some two years later, Martinez notified Sanchez-Garcia that she planned to move to Colorado with the children that summer so that she could attend nursing school. She later incorporated her relocation request into a petition to modify the divorce decree, asking the court to give her sole physical custody of the children as necessary to facilitate her move. Sanchez-Garcia responded by filing a counter-petition to modify, asking the court to change the custody provisions of the decree to give him sole physical custody of the children in the event Martinez were to relocate to Colorado.

¶4 After a hearing, a court commissioner determined that relocation to Colorado was not in the best interest of the children, and therefore recommended that Martinez's request for relocation with the children be denied, and that, if Martinez were to relocate to Colorado, primary physical custody should shift to

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Sanchez-Garcia. Martinez objected to the commissioner's recommendation, and asked the district court to appoint a custody evaluator, which the court eventually did.

¶5 After completing his assessment, the custody evaluator announced his recommendation: if Martinez relocated to Colorado, Sanchez-Garcia should be granted sole physical custody of the children, with Martinez receiving parent-time pursuant to Utah's relocation statute, see Utah Code § 30-3-37, but if Martinez remained in Cache County, the custody arrangement should be "50/50 parent time."

¶6 Soon after receiving the custody evaluator's recommendation, Martinez decided not to move to Colorado, and effectively withdrew her petition to modify regarding that potential move (although she did continue to press for an income-related modification of child support obligations). She did not, however, remain in Cache County; instead, she relocated with the children to Layton, Utah, a city located some sixty miles from her previous residence, and she did so without providing any advance notice to Sanchez-Garcia. He objected to Martinez's move to Layton, and eventually amended his counter-petition to reflect this new development, asking the court to modify the custody order anyway, even though Martinez was not moving to Colorado, because she had relocated to Layton.

¶7 The court held a one-day bench trial to consider Sanchez-Garcia's counter-petition regarding Martinez's relocation to Layton, as well as Martinez's petition regarding amendment of the parties' child support obligations. The court heard testimony from both parties, as well as from the custody evaluator. In his testimony, Sanchez-Garcia described how his parent-time initially consisted of daily visits but no overnights, but gradually changed to a fairly consistent schedule of one weekday and alternate weekends. He noted that he has "to kind of share [his] parent time" with his extended family, who are very involved in the

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children's lives. He expressed frustration that his parent-time was sometimes "covered up with sports and stuff like that." And he explained that Martinez's extended family was also very involved in the children's lives, noting that "70 percent of the time" he was instructed to drop the children off, after parent-time, not at Martinez's house but at the residence of one of her extended family members. When asked what his preferred parent-time would be, he answered "50/50" like "what [the custody evaluator] said." But he acknowledged, on cross-examination, that he had never exercised his allotted four weeks of summer parent-time. And when asked if Martinez had offered to keep the children on their Cache County soccer teams, even after her move to Layton, Sanchez-Garcia confirmed that she had but said he declined the offer because his "work schedule was getting kind of crazy" and he would not be able to get the children to practice.

¶8 In her testimony, Martinez stated that the children were happy and doing well in Layton, and that her move to Layton had not changed the amount of parent-time Sanchez-Garcia received. To cut down on travel, Martinez had offered Sanchez-Garcia parent-time every Friday instead of his midweek day,^[1] and although he mentioned that he wanted a different midweek day, he never specified which one. When asked why she had wanted to move to Colorado, Martinez explained that she had applied to nursing school there because she had found it was easier to gain admission there than to the nursing programs in Cache County. She stated that, after deciding not to move to Colorado, she moved to Layton instead because...