Sigg v. Sigg

• Decision Date: 26 October 1995
• Docket Number: No. 940650-CA,940650-CA
• Citation: Sigg v. Sigg, 905 P.2d 908 (Utah App. 1995)
• Parties: Carolyne Joan SIGG, Plaintiff and Appellant, v. Henry Alfred SIGG, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 908

905 P.2d 908

Carolyne Joan SIGG, Plaintiff and Appellant, v. Henry Alfred SIGG, Defendant and Appellee.

No. 940650-CA.

Court of Appeals of Utah.

Oct. 26, 1995.

E. Paul Wood (argued), Littlefield & Peterson, Salt Lake City, for Appellant.

Clark W. Sessions (argued) and Dean C. Andreasen, Campbell Maack & Sessions, Salt Lake City, for Appellee.

Before DAVIS and WILKINS, JJ., and REGNAL W. GARFF ¹, Senior Judge.

OPINION

REGNAL W. GARFF, Senior Judge:

Carolyne Sigg (Ms. Sigg) appeals a trial court order transferring custody of her two daughters to her former husband, Henry Sigg (Mr. Sigg). Ms. Sigg also appeals the trial court's termination of alimony based on a finding of cohabitation. Finally, Ms. Sigg appeals the trial court's award of court costs, attorney fees, and an expert witness fee to Mr. Sigg. We affirm in part and reverse in part.

BACKGROUND ²

The Siggs were married on September 8, 1984, in Auckland, New Zealand, at Ms. Sigg's parents' home. They have two daughters: Nicola, born March 4, 1985, and Lindsay, born January 6, 1989. In July 1990, the couple divorced. The trial court awarded custody of the two girls to Ms. Sigg, while Mr. Sigg received visitation every other weekend, every Tuesday and Thursday evening and at other mutually agreed upon times. Mr. Sigg also received four weeks of visitation during the summer. Additionally, the divorce decree states that in the event that Ms. Sigg elects to move to New Zealand or elsewhere outside of Utah, Mr. Sigg will be allowed sixty (60) days of visitation each year. The decree also requires the parties to "freely and openly communicate regarding actions to be taken in the best interests of the children." Finally, the decree states: "The parties shall take no action to interfere in the enhancement of the other's relationship with the children, nor any action which may be construed in any respect as derogatory toward the other parent in that relationship."

Ms. Sigg resided in Park City until August 1992. At that time, she sold her home and, after a side trip to Colorado to visit her boyfriend, Vic Haynes, she moved to New Zealand. Ms. Sigg did not inform Mr. Sigg that she was leaving the United States; in fact, he did not learn of her plans until after she had left, taking the couple's children with her.

During the time Ms. Sigg was in New Zealand, Mr. Sigg's contact with the children was severely limited. The children spoke once with their father by telephone; subsequent attempts to speak with the children were thwarted. ³ In November, Mr. Sigg went to New Zealand. At that time, Ms. Sigg had moved from her parents' home, and Mr. Sigg hired a private investigator in order to locate her and the children. During his five-week stay in New Zealand, Mr. Sigg was permitted to visit with the children for only two hours, and that visit was supervised by Ms. Sigg's father.

While in New Zealand, Mr. Sigg hired an attorney to enforce the visitation schedule mandated by the divorce decree. However, the New Zealand court held there had been no violation of the divorce decree because insufficient time had elapsed to determine whether Mr. Sigg would receive his sixty days of visitation.

On February 7, 1993, Ms. Sigg returned to the United States and moved to Boulder, Colorado, where she stayed with Mr. Haynes at his condominium for two weeks before obtaining a second condominium of her own nearby. The trial court found that, over the next few months, Ms. Sigg and Mr. Haynes "lived together as though they were husband and wife"--that they had sexual intercourse, shared living expenses, had open access to the other's condominium, ate together, maintained clothing in the same condominium, and used the same furniture. ⁴ In August 1993, she and Mr. Haynes purchased a home and moved in together.

The court found that in 1993, Mr. Sigg was "only given a business telephone number through which he could contact his children and [Mr. Sigg] became frustrated and angry when his calls met with answering machine messages [on Mr. Haynes' business phone] and finally instructions from Mr. Haynes that [he] could only speak with his children two evenings each week at 7:00 P.M." Subsequently, a personal line was provided by Ms. Sigg but she was not "candid or forthcoming" in providing the number to Mr. Sigg. As a result of these obstructions, Mr. Sigg apparently became frustrated and left some abusive messages on the answering machine that Ms. Sigg deemed to be telephone harassment. Thereafter, Mr. Haynes filed a complaint with the Boulder police department.

In November, Mr. Sigg filed a Verified Petition for Modification of the Divorce Decree seeking termination of alimony and change in custody or a set schedule of visitation. He also asked for attorney fees.

On December 20, 1993, pursuant to a pre-arrangement with Ms. Sigg, Mr. Sigg went to Boulder for a Christmas visit with his children. Ms. Sigg told him he was to pick them up at a bank parking lot. However, instead of the visit he was arrested on charges of telephone harassment. Ms. Sigg acknowledged during her testimony that the arrest was made after Mr. Haynes notified the police that Mr. Sigg was in Boulder. Moreover, the trial court found that Ms. Sigg broke her agreement to deliver the children at the appointed time and place, and that, after Mr. Sigg was released on bail, Ms. Sigg would allow him to visit his children only under the supervision of a social worker, which Mr. Sigg declined to do. Mr. Sigg hired a lawyer to defend against the charge and spent $1,000.

Trial on Mr. Sigg's petition for modification of the divorce decree was held on June 14 and 15, 1994, before the Honorable David S. Young. Dr. Elizabeth Stewart, an attorney and psychologist appointed to perform a custody evaluation, recommended, both in her report and during trial testimony, that it would be in the best interests of the children to transfer custody to Mr. Sigg. She testified that Mr. Sigg should have custody of the children because he would facilitate visitation, while Ms. Sigg would not.

The trial judge held that while the children are "closely bonded with each of their parents," and that although the children were "generally doing well in Ms. Sigg's custody," it was in the best interests of the children to award custody to Mr. Sigg. The judge also ruled that Mr. Sigg's $500 per month alimony obligation ceased in February when Ms. Sigg and Mr. Haynes began cohabitating. He also awarded various costs and fees to Mr. Sigg. On September 29, 1994, the trial judge entered an amended decree of divorce. Ms. Sigg appeals from that ruling.

ISSUES ON APPEAL

Ms. Sigg raises the following issues on appeal. Did the trial court err:

(1) in finding there was a material change in circumstances that warranted reopening the issue of custody of the children?

(2) in concluding that transferring custody to Mr. Sigg was in the best interests of the children?

(3) in terminating alimony in February 1993 based on Ms. Sigg's cohabitation?

(4) in ordering Ms. Sigg to pay for one-third of her day care costs, then equally dividing the remaining costs between Mr. and Ms. Sigg?

(5) in ordering Ms. Sigg to pay Mr. Sigg's costs, attorney fees and expert witness fee?

STANDARDS OF REVIEW

A trial court's factual findings underlying a holding of material change of circumstances in a divorce decree and a determination of the children's best interests may not be disturbed unless clearly erroneous. Cummings v. Cummings, 821 P.2d 472, 476 (Utah App.1991). A court's legal conclusion as to whether a material change in circumstances has occurred that would warrant reconsidering the divorce decree is reviewed for an abuse of discretion. Wells v. Wells, 871 P.2d 1036, 1038 (Utah App.1994). A trial judge's award of custody and support is also reviewed for abuse of discretion. Sukin v. Sukin, 842 P.2d 922, 923 (Utah App.1992). A trial court's award of attorney fees, costs and expert witness fees will not be overturned absent an abuse of discretion. Finlayson v. Finlayson, 874 P.2d 843, 850 (Utah App.1994); Larson v. Larson, 888 P.2d 719, 726 (Utah App.1994).

ANALYSIS

I. Change of Custody

Ms. Sigg argues, first, that because Mr. Sigg received all of the visitation ordered in the divorce decree, there were no material changes in circumstances that would justify reopening the question of custody. Second, she argues that if the question of custody is reconsidered, the importance of continuing a stable custody arrangement outweighs any need for a change in custody. We consider each argument in turn.

A. Material Change in Circumstances

Ms. Sigg claims the trial court abused its discretion in finding a material change in circumstances that would allow reopening the divorce decree to review the custody arrangements. We disagree.

In Utah, requests for changes in custody arrangements are considered through a bifurcated procedure. The Utah Supreme Court requires that the trial court first "receive evidence only as to the nature and materiality of any change in those circumstances upon which the earlier award of custody was based." Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). ⁵ During this step, the party seeking modification must show: (1) a change of circumstances upon which the earlier custody arrangement was based and (2) that the changes are sufficiently substantial and material to justify reopening the custody question. Id. "In other words, if the changed circumstances [are not] the kind of circumstances on which an earlier custody decision was based, there is no valid reason to reconsider that decision." Becker v. Becker, 694 P.2d 608, 610 (Utah 1984). Additionally the claimed change must "have some material relationship to and substantial effect on ... the functioning of the presently existing custodial relationship." Id.

The trial court ruled that Ms. Sigg's interference with Mr. Sigg's visitation rights constituted a material change in circumstances. The...