Shioji v. Shioji
| Decision Date | 27 November 1985 |
| Docket Number | No. 19611,19611 |
| Citation | 712 P.2d 197 |
| Parties | Carl K. SHIOJI, Plaintiff and Respondent, v. Terry L. SHIOJI, Defendant and Appellant. |
| Court | Utah Supreme Court |
Bettie J. Marsh, Ogden, for defendant and appellant.
Larrie A. Carmichael, Roy, for plaintiff and respondent.
Defendant Terry L. Shioji (Lone) appeals an order of the district court modifying a divorce decree to award custody of the parties' two minor daughters to their father, plaintiff Carl K. Shioji. We affirm.
The parties were divorced in August 1981. Custody of their two daughters, aged 8 and 4, was granted to defendant. Soon after the divorce, defendant entered a relationship with a man, who began staying overnight in her home every weekend and on other days while the children were present. Plaintiff objected to defendant's practice of having her boyfriend sleep overnight while the children were home because he believed it set bad moral standards for the children. When defendant nevertheless continued the practice, plaintiff petitioned the court for a transfer of custody to him.
At the hearing on plaintiff's petition in January 1982, defendant testified that she saw nothing wrong with having her boyfriend stay overnight while the children were home and that her having done so had had no adverse effect on them. She also testified, however, that her own mother disapproved of her relationship with her boyfriend and that her eight-year-old daughter had expressed discomfort about being asked and responding to questions from the grandmother about defendant and her boyfriend. Defendant testified she thought the daughter's discomfort was the result of a desire to protect defendant and to not "put her on the spot." Defendant further testified that she thought her daughters were "to some extent" learning from her conduct that there was nothing wrong with her relationship, that she saw "no problem" with that teaching, and that she hoped her daughters would grow up to have a relationship like hers themselves.
The boyfriend similarly testified that he saw "no problems whatsoever" with a single mother having a boyfriend stay overnight while her children were home and that his staying overnight with defendant had had no adverse effect on the children. He conceded, however, that he had never discussed with the children the subject of his overnight visits.
The father testified that he had discussed the conduct of defendant and her boyfriend with his daughters and that he believed the mother's conduct and attitude were leaving the girls with the impression that "their morals can be just as loose as hers." Furthermore, the maternal grandmother of the girls testified that she had spoken to the girls about "men being [in their home]" and that they felt "a type of resentment" about it.
After the hearing, the court spoke with the children in chambers in a recorded but untranscribed session. Afterward, the trial court reported that the children had told the court that the boyfriend slept on the couch when he stayed overnight but, when asked if that was true, recanted and said that defendant had told them to say that.
Without making written findings of fact, the trial court entered an order transferring custody of the children to plaintiff. Soon thereafter, defendant petitioned the court to restore custody to her, alleging that she had married and would no longer work in order to provide full-time care for the children. Defendant denied having told the children to tell the court the boyfriend slept on the couch and offered to take a lie detector test to support her denial. The trial court refused to again modify the decree, and defendant appealed, both from the order modifying the decree and the order denying her subsequent petition to modify.
On appeal, we vacated the order transferring custody because of the lack of written findings of fact and remanded the case to the trial court for the entry of such findings. 1 On remand, based on the testimony given at the previous hearing, the court entered lengthy and detailed findings of fact and conclusions of law and again ordered the change in custody.
Notably, the court found that defendant's practice of having the boyfriend stay overnight in the home "was a regular and frequent occurrence," that the children were having "serious difficulty in adjusting to defendant's inappropriate behavior," and that defendant's conduct with her boyfriend had "a substantial adverse effect on the moral development of the children." The court further found that defendant and her boyfriend "appeared indifferent to the potential adverse effect this arrangement might have on the children." The court therefore held that defendant's relationship with her boyfriend constituted a substantial change in the circumstances on which the original custody award was based, justifying a reopening of the custody issue.
Based on evidence regarding plaintiff's relationship with the children, his work schedule, and living and child-care arrangements, the court found that plaintiff was a "good and caring parent, fully capable ... to properly raise the children as custodial parent." Finally, the court determined that, while it made "no finding that defendant was unfit as a mother," the "children's total needs, including physical, emotional and moral needs, would be better served by awarding custody to plaintiff rather than to defendant...."
Under U.C.A., 1953, § 30-3-5(1), the trial court has continuing jurisdiction to make "reasonable and necessary" changes in the custody provisions of a divorce decree. In Hogge v. Hogge, 2 this Court established a two-step analysis for determining whether to modify a divorce decree to transfer custody from one parent to the other. 3 First, the trial court must decide whether there has been a change in the circumstances on which the former custody award was based that is sufficiently substantial and material to justify reopening the custody question. 4 Second, if such a change in circumstances is found, the court must determine de novo which custody arrangement will serve the best interests of the child. 5
On appeal, defendant argues that the trial court erred in applying both steps of the Hogge analysis. We first address defendant's challenge to the trial court's conclusion that there had been a substantial and material change in circumstances justifying a reopening of the custody issue.
In Becker v. Becker, 6 we stated that to meet the threshold showing of a change in circumstances,
a party [seeking a transfer of custody] must show, in addition to the existence and extent of the change, that the change is significant in relation to the modification sought. The asserted change must, therefore, have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship. 7
In this case, the trial court found that since the time of the divorce defendant had not only entered an extramarital sexual relationship, but her conduct and attitude with respect to the relationship had a material and adverse effect on her parenting ability. The court found that the boyfriend's overnight stays were a "regular and frequent occurrence" having a "direct effect on the children." It found that this living arrangement caused the children embarrassment and discomfort in their own relationships with close family members, who viewed defendant's conduct as immoral and repugnant. It found that defendant's conduct had made the children feel compelled to lie to the court and was thus detrimental to their moral development. Finally, the court found that defendant and her boyfriend were either unwilling or unable to appreciate the adverse impact of their conduct on the children. These findings, taken as a whole, support the conclusion that there had been, since the date of the divorce, a substantial and material adverse change in defendant's parenting ability stemming from her relationship with her boyfriend.
Defendant contends that the court's decision was based solely on the fact that defendant's boyfriend stayed overnight in her home on occasion and, if upheld, would allow "continuous relitigation of custody by vengeful former spouses whenever the custodial parent becomes involved in similar post-divorce courtships." This Court has previously held, however, that a custodial parent's extramarital sexual relationship alone is insufficient to justify a change in custody. 8 The trial court's findings in this case go far beyond a single finding that defendant engaged in extramarital intercourse or that she, on occasion, allowed her boyfriend to stay overnight. The key to our decision is the court's finding of a substantial adverse impact on the children as a result of defendant's behavior.
Moreover, the court's findings are adequately supported by the evidence. In divorce proceedings, including custody matters, the trial court is accorded particularly broad discretion. 9 Only where the trial court's judgment is so flagrantly unjust as to be an abuse of discretion, will this Court interpose its own judgment. 10 The issue on appeal is not whether the trial court's findings accord with our own view of the evidence, but whether, viewing the evidence and the reasonable inferences therefrom in the light most favorable to the findings, the findings are supported by the evidence. The trial court's proximity to the witnesses and its opportunity to hear their testimony and observe their demeanor, places it in a far more advantaged position than this Court, which must rely on an inanimate record. This factor is particularly important in the instant case because the trial court relied heavily upon an in-camera interview of the children, conducted by stipulation of the parties and not transcribed or made available for our review.
The court's account of its interview with the children supports its determination that the...
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