Stephens v. Stephens

• Decision Date: 12 October 2018
• Docket Number: No. 20170440-CA,20170440-CA
• Parties: Donovan Todd STEPHENS, Appellee and Cross-appellant, v. Bridget Nicole STEPHENS, Appellant and Cross-appellee.
• Court: Utah Court of Appeals

437 P.3d 445

Donovan Todd STEPHENS, Appellee and Cross-appellant,

v.Bridget Nicole STEPHENS, Appellant and Cross-appellee.

No. 20170440-CA

Court of Appeals of Utah.

Filed October 12, 2018

Jennifer R. Jackson, Attorney for Appellant and Cross-appellee.

Angilee K. Dakic and Amy F. Hugie, Attorneys for Appellee and Cross-appellant.

Judge Kate A. Toomey authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.

Opinion

TOOMEY, Judge:

¶1 Bridget Nicole Stephens (Mother) appeals the district court's judgment on a petition to modify a decree of divorce, and Donovan Todd Stephens (Father) cross-appeals the same judgment. Mother argues that the district court erred when it awarded Father sole physical custody of the parties' minor child (Child), asserting the modified decree met the statutory requirements for joint physical custody. Mother further argues the court erred when it calculated Mother's child support obligation on the award of sole physical custody to Father, asserting it should have used a joint physical custody worksheet. Father cross-appeals, asserting the district court erred when it denied his requested relief for parent-time modification. We affirm with respect to the sole physical custody designation and the child support award. But we reverse and remand for the district court to make additional findings with respect to the parent-time award and, after doing so, to adjust its order as necessary.

BACKGROUND

¶2 Father and Mother divorced in 2011. The parties were awarded joint legal custody of Child, but Father was awarded sole physical custody subject to Mother's liberal parent-time. Under the parent-time arrangement, Child stayed overnight with Mother for more than thirty percent of the year. Because Mother was unemployed, her child support obligation was calculated based on an imputed minimum wage.

¶3 Four years later, Father filed a petition to modify the divorce decree, asserting that a substantial and material change of circumstances supported a reduction in Mother's parent-time and an increase of Mother's child support obligation. As to parent-time, Father claimed Mother had abused Child. The abuse allegation was based primarily on a supported finding of child abuse by the Utah Division of Child and Family Services (the DCFS Finding). With regard to the child support issue, Father claimed Mother had returned to work and asked for a modification based on her new income.

¶4 Mother answered the petition, denying the abuse allegation. Mother also filed a counter-petition to modify, asking for an award of joint physical custody that designated her as primary custodian. Mother's counter-petition alleged Father did not communicate with her about Child, Father "failed to work with [Child]" regarding Child's learning difficulties, and that she was "concerned about [Child's] nutrition and hygiene while in [Father's] custody." Mother acknowledged her new employment and asked that child support be modified "based on the parties' current income and the parent-time ordered, in compliance with [Utah's] child support guidelines."

¶5 Based on the DCFS Finding, the district court entered a temporary order, greatly reducing Mother's parent-time, terminating her overnight parent-time, and requiring supervision during all visits. The district court also appointed a private guardian ad litem (the GAL) to represent Child's best interest. The GAL was to make recommendations regarding the alleged abuse and whether Mother's parent-time should be supervised.

¶6 The GAL interviewed Child, who reported "substantial communication issues" with Mother, as well as physical and emotional abuse. For example, Mother called Child "fat" and "stupid," causing Child "distress and problems with her self-image." Mother also "required" Child to call her every day, and if Child missed a call, Mother became angry with her. In addition, Child described witnessing episodes of violence by Mother directed toward one of Mother's other children and Child's step-father.

¶7 Child also detailed the incident that gave rise to the DCFS Finding. According to Child, Mother was upset because Child had not called her the previous night. Mother asked Child "what goes on in her head," while forcefully and repeatedly jabbing and poking Child's face, then hit Child's leg with a fist. Child ultimately told the GAL she was "terrified of [Mother]" and would fear for her safety sleeping at Mother's house if the overnights resumed. Child feared Mother would "speak to her inappropriately, hit her, or lash out at her in other ways."

¶8 The GAL next interviewed Mother and was "openly shocked" at the way Mother communicated about Child. The GAL noted it was easy to understand why Child thought Mother called her "fat" or "dumb," "despite different verbiage or use of words."

¶9 The GAL also interviewed Child's personal therapist. The personal therapist began treating Child for anxiety at school, but the treatment evolved to include Child's relationship with Mother and a potential diagnosis of post-traumatic stress disorder

resulting from the incident that gave rise to the DCFS Finding. The personal therapist concluded that Mother's damaging comments and the domestic violence toward Child had created Child's anxiety and caused her relationship with Mother to become "toxic." Child constantly worried about their interactions because at "any moment [Mother] could go off."

¶10 Based on the investigation, the GAL recommended the court adopt a provisional "step-up" parenting plan. That plan eventually eliminated supervision during Mother's visits, and allowed Mother a path to regain the parent-time awarded in the original divorce decree. The plan gradually increased Mother's visits each week, with a return to parent-time as established in the original decree after a successful six-week period. The GAL recommended continued therapy for Mother and Child as well as feedback from the therapists as the process moved forward. Also, the plan made returning to the original parent-time schedule contingent on Mother refraining from further abusive behavior. If Mother engaged in additional incidents of violence or abuse directed at Child, the step-up plan would cease immediately and Mother's parent-time would return to what it was under the temporary order.

¶11 The district court also received evidence at trial. Father detailed his understanding of the incident giving rise to the DCFS Finding and testified to Mother's other violent outbursts. Father also testified that Child smoked marijuana during a supervised visit at Mother's house. Ultimately, Father asked the court to adopt an extended step-up plan that would allow Mother overnight parent-time only after six months and cap Mother's potential parent-time at the statutory minimum under Utah Code section 30-3-35.¶12 Mother also testified, denying Child's version of the incident giving rise to the DCFS Finding. Mother admitted "tapping" Child on the head, but she disputed the number of taps, and denied hitting Child's leg. In addition, Mother denied that Child smoked marijuana at Mother's house. Mother ultimately asked the court to award joint physical custody, identifying her as primary custodian.

¶13 The court also considered "affidavit-style answers" to the parties' questions submitted by the Child's personal therapist and Mother and Child's reunification therapist. The personal therapist reported Child's symptoms of post-traumatic stress disorder

and recommended continued personal and reunification therapy to increase Child's "feelings of safety in the presence of [M]other." The personal therapist said she felt a step-up plan was appropriate, but she believed Child and Mother needed more than six weeks for reunification therapy before the plan was set in place. The personal therapist also recommended a "safety plan" to assist Child in the eventual transition back to increased, overnight parent-time with Mother, and to reduce the risk of physical violence that Child felt was "high as changes in [parent-time] [were] being addressed." That safety plan included (1) allowing Child to have her phone with her at all times when she is with Mother, (2) allowing Child to state "I feel unsafe right now" and go to a secluded area for at least half an hour of alone time, and (3) requiring a lock on Child's bedroom door at Mother's house that Child could lock before going to sleep.

¶14 The reunification therapist explained, "[Child] and [Mother] have been able to do some repair in their relationship, but it is both mine and [Child's] opinion that the work isn't completed and family therapy should continue." The reunification therapist said Child was still working to develop "some power in the relationship between her and [Mother]" and that "it is going to likely require a combination of more counseling (both individual and family) and getting older and more mature." The reunification therapist said she believed the six-week step-up plan was "appropriate because it gives [Child] a chance to ... get used [to] the changes gradually."

¶15 After considering the evidence, the district court entered an order supported by findings of fact and conclusions of law. First, the district court found Mother's abuse of Child constituted a significant and material change in circumstances warranting modification of parent-time. The findings stated that the abuse was "well documented," citing the DCFS Finding, Child's confirmation of that finding, and Father's testimony regarding the incident. The district court also found Mother had made other "violent outbursts in the presence of or directed at" Child, and that Child used marijuana at Mother's house during a supervised visit. The court concluded Child was suffering from post-traumatic stress disorder

, and her relationship with Mother had become strained.

¶16 Despite the findings of abuse, the district court found the relationship between Mother and Child had improved through temporary...