Maughan v. Maughan

• Decision Date: 22 February 1989
• Docket Number: No. 870589-CA,870589-CA
• Citation: 770 P.2d 156
• Parties: Thomas G. MAUGHAN, Plaintiff and Appellant, v. Paulette LaDawn Norman MAUGHAN, Defendant and Respondent.
• Court: Utah Court of Appeals

Page 156

770 P.2d 156

Thomas G. MAUGHAN, Plaintiff and Appellant, v. Paulette LaDawn Norman MAUGHAN, Defendant and Respondent.

No. 870589-CA.

Court of Appeals of Utah.

Feb. 22, 1989.

Timothy W. Healy, Ogden, for plaintiff and appellant.

Stephen W. Jewell, Logan, for defendant and respondent.

Before DAVIDSON, BENCH and JACKSON, JJ.

BENCH, Judge:

Plaintiff appeals the denial of his petition to modify a divorce decree that awarded custody of his son to defendant. Plaintiff also appeals the grant of attorney fees and increased child support to defendant. We affirm the trial court's ruling, but remand for a determination of attorney fees to be awarded defendant on appeal.

FACTUAL BACKGROUND

Plaintiff Thomas G. Maughan and defendant Paulette Maughan were married in July 1982 and divorced in February 1983. At the time of their divorce, Paulette had custody of a son from a previous marriage, and was expecting another child. That child, Riley Maughan, was born in July 1983. The decree of divorce had been entered by default after the parties stipulated that Paulette was to be awarded custody of Riley and child support of $75 per month.

Four years later, Thomas brought this action seeking custody of Riley. Thomas claimed that Paulette's frequent moves, use of alcohol and drugs, promiscuity, and parental neglect of Riley justified a change of custody. Thomas alleged that Riley was often unkempt, undernourished, and unattended, and that the apartment Paulette and her children lived in was unsanitary. Thomas also claimed that Riley had been adversely affected by Paulette's lifestyle, and had been sexually abused by her boyfriend. In contrast, Thomas claimed that he was happily remarried and had a child from that marriage, that he had a stable income and residence, that he had become religiously active, and that Riley had formed close relationships with Thomas's new wife and child.

Both parties testified at trial. Paulette admitted that she had moved twelve times in the four years following the divorce, residing during that time in Wellsville, Logan, Clearfield, Brigham City, and Salt Lake City, Utah. She claimed that the frequent moves grew out of a need for steady employment and more economical housing. Paulette also testified that she had one child out-of-wedlock following the birth of Riley and was expecting another such child.

A family therapist, a sexual abuse therapist, several social workers, and other witnesses also testified at trial. The sexual abuse therapist testified that there was evidence of Riley's sexual abuse, but none showing that Paulette knew about it. Other social workers stated that they found no evidence of abuse or any indication that Riley was disturbed or had a negative relationship with his mother. A social worker who had been assigned to monitor Paulette's home testified that she saw no basis for finding the mother's care inappropriate. The family therapist testified that Thomas's situation may be more stable, but that both parents had appropriate parenting skills and strong bonding with Riley.

After hearing the evidence and interviewing Riley, the trial court concluded that there was "a great deal of conflict in the testimony regarding the defendant's supervision, child care, housekeeping, promiscuity and sexual abuse." The court then found that Thomas had not shown substantial changes in Paulette's parenting

ability or in the custodial arrangement, and denied his petition for modification of custody. The court also awarded attorney fees to Paulette and increased Thomas's monthly child support payments from $75 to $150, in view of the parties' earnings.

CUSTODY

Proper adjudication of custody matters is "highly dependent upon personal equations which the trial court is in an advantaged position to appraise." Smith v. Smith, 726 P.2d 423, 425 (Utah 1986) (quoting Johnson v. Johnson, 7 Utah 2d 263, 267, 323 P.2d 16, 19 (1958)). The trial court must "hear and weigh the conflicting evidence" and make findings of fact. Kramer v. Kramer, 738 P.2d 624, 628 (Utah 1987). Unless those factual findings are "clearly erroneous" under Utah R.Civ.P. 52(a), they will not be set aside on appeal. Kishpaugh v. Kishpaugh, 745 P.2d 1248, 1253 (Utah 1987). Findings of fact are clearly erroneous if it can be shown that they are against the clear weight of evidence or that they induce a definite and firm conviction that a mistake has been made. State v. Walker, 743 P.2d 191, 193 (Utah 1987). Because the trial court is given broad discretion in making child custody awards, Myers v. Myers, 768 P.2d 979, 982-983 (Utah App.1989), its decision will not be disturbed absent a showing of an abuse of discretion or manifest injustice. Fontenot v. Fontenot, 714 P.2d 1131, 1132-33 (Utah 1986); Fullmer v. Fullmer, 761 P.2d 942, 945 (Utah App.1988). This discretion is limited in that it must be exercised within the confines of the legal standards set by appellate courts, and the facts and reasons for the court's decision must be set forth in findings and conclusions. Davis v. Davis, 749 P.2d 647, 648 (Utah 1988); Kishpaugh, 745 P.2d at 1253 n. 2.

The trial court's articulate memorandum decision in this case indicates that it applied the legal standard for modifying child custody as set forth in Hogge v. Hogge, 649 P.2d 51 (Utah 1982), and clarified in Becker v. Becker, 694 P.2d 608 (Utah 1984). Hogge and Becker established a bifurcated test for reopening custody decrees: 1) the party seeking custody must prove that there has been a change in the circumstances upon which the previous custody award was based, which substantially and materially affects the custodial parent's parenting ability or the functioning of the custodial relationship; and 2) once a change has been shown, the transfer of custody must be in the best interests of the child. Becker, 694 P.2d at 610.

Hogge and Becker were followed in 1987 by Kramer v. Kramer, 738 P.2d 624 (Utah 1987). In Kramer, the noncustodial parent sought custody by comparing his new marriage and stable environment to the allegedly unsuitable environment maintained by the mother. Justice Zimmerman, writing for the supreme court, reaffirmed Hogge and its predilection for evaluating only a change in circumstances of the custodial parent:

In the usual case, the noncustodial parent's change of circumstances is relevant only to a determination of whether, under the second prong of the Hogge-Becker test, the best interests of the child warrant a shift in custody, an issue reached only after a change of custodial circumstances has been found and the custody issue has been reopened.

Kramer, 738 P.2d at 627. In two concurring opinions, however, a majority of the court cautioned against a rigid application of the "change of circumstances" requirement. Justice Stewart recognized the utility of Hogge in preventing repetitive custody litigation and fostering family stability, but proposed that the preservation of stability in a destructive parent-child relationship could ultimately be more detrimental to the interests of the child. Kramer 738 P.2d at 628 (Stewart, J., concurring in the result). Justice Howe suggested certain situations where application of the Hogge rule will work against the best interests of the child, e.g., where custody is originally grounded on temporary incapacity of one parent, where both parents at the outset have marginal parenting ability, or where custody is obtained by default divorce. Kramer 738 P.2d at 629 (Howe, J., concurring in the result).

This court has since considered the impact of Kramer in Fullmer v. Fullmer, 761 P.2d 942 (Utah App.1988). Both parents in Fullmer were found to be "loving, caring people," but placement of the child in the noncustodial home eliminated the need for professional day care. The trial court determined that such placement was in the child's best interests and awarded custody to plaintiff. This court reversed, finding error in the failure to adhere to the bifurcated procedure of Hogge. We noted that even if the concerns of the Kramer majority were addressed, Fullmer still did not involve the temporary or marginal parenting situation offered as examples in Kramer's concurring opinions. Rather, the petition for modification of custody was found to be "the very type of litigation and harassment from which our supreme court has attempted to protect custodial parents." Fullmer, 761 P.2d at 948.

In this appeal, Thomas argues that the trial court abused its discretion when it failed to find a substantial and material change of circumstances which adversely affected Riley. Thomas also claims that the concurring opinions of Kramer expanded Hogge by imposing a less rigid application of the "change of circumstances" requirement. On this basis, Thomas urges us to reverse the trial court for declining to consider, under Hogge's first prong, changes in the noncustodial parent's circumstances and the child's best interests.

Our reading of Hogge and its progeny suggests that on a petition for custody modification, trial courts should carefully scrutinize the facts behind the original award of custody. If the initial award was based on a thorough examination by the trial court of the various factors pertaining to the child's welfare, a rigid application of the change-in-circumstances prong is in order. In such a case, the court has already considered the best interests of the child and made a determination consistent with that finding. Any subsequent petition for modification of custody must overcome a high threshold in order to "protect the child from 'ping-pong' custody awards" and the accompanying instability so damaging to a child's proper development. Kramer, 738 P.2d at 626.

If, on the other hand, the initial custody award is premised on a temporary condition, a choice between marginal custody arrangements, a default decree, or similar exceptional criteria, the trial court may properly focus its "inquiry into the effects on the...