Trubetzkoy v. Trubetzkoy

• Decision Date: 19 March 2009
• Docket Number: No. 20080406-CA.,20080406-CA.
• Citation: 205 P.3d 891,2009 UT App 77
• Parties: Leslie Smith TRUBETZKOY, Petitioner and Appellant, v. Sergei TRUBETZKOY, Respondent and Appellee.
• Court: Utah Court of Appeals

205 P.3d 891

2009 UT App 77

Leslie Smith TRUBETZKOY, Petitioner and Appellant, v. Sergei TRUBETZKOY, Respondent and Appellee.

No. 20080406-CA.

Court of Appeals of Utah.

March 19, 2009.

Toni Marie Sutliff, Salt Lake City, for Appellant.

Gregory B. Wall, Salt Lake City, for Appellee.

Before Judges BENCH, DAVIS, and McHUGH.

OPINION

McHUGH, Judge:

¶ 1 Leslie Smith Trubetzkoy (Wife) appeals various aspects of the trial court's Findings of Fact and Conclusions of Law (the Findings and Conclusions) and its Decree of Divorce. Wife argues that the trial court improperly granted Sergei Trubetzkoy (Husband) joint legal custody of the parties' minor child¹ and erred in its award of parent-time. Wife further challenges the trial court's division of marital assets. In addition, Wife claims that the trial court erred in refusing to order an accounting of the parties' business. Finally, Wife asserts that she is entitled to a divorce due to adultery, rather than irreconcilable differences. We affirm the trial court's rulings on all but the order of joint legal custody. On the legal custody issue, we reverse and remand.

BACKGROUND

¶ 2 Husband and Wife married on July 3, 1993, and they divorced on December 23, 2007. They have one child, who was born in 2000 and was diagnosed with diabetes in 2003. The child also has a mood disorder.

¶ 3 Husband and Wife met while working at a renaissance faire in southern California in 1987. At the time, Husband was reading palms and tarot cards, while Wife worked for the organization running the faire. Husband also sold imported goods after hours. When Husband began selling the imported goods at the faire, he hired Wife to manage the booth. Beginning in 1987, the parties traveled between faires in northern and southern California and lived together in two vans and a house truck. Around 1990, the parties traveled abroad together to purchase inventory for the booths and began operating Bazarre Traders (the Business) jointly. In 1993, the year the parties married, they filed a Doing Business As form in California, which stated that the Business commenced in 1990. By 1998, the Business had expanded to include carts from which they sold merchandise. Husband also began selling items from these carts at faires in Arizona, Colorado, and Texas.

¶ 4 In 1997, the parties opened a retail store in Salt Lake City to generate income during the winter.² From 1997 to 2003, both parties operated the store during the month of December. Then Husband would travel to purchase inventory, and Wife would operate the store and manage the incoming shipments of goods. Following their separation in February 2003, Husband conducted nearly all of the business at the faires, and Wife exclusively ran the retail store. After the parties' separation, Wife operated a booth at a Colorado faire without Husband's assistance.

¶ 5 Approximately one year after the parties separated but before the divorce was final, Husband began a relationship with Antonella Catalano. Husband refers to Ms. Catalano as his girlfriend, shares bank accounts with her, and travels with her to the faires.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Wife first argues that the trial court misinterpreted the statutory requirements for an order of joint legal custody, see Utah Code Ann. § 30-3-10.2 (2007). Alternatively, she claims that the trial court erroneously ordered joint legal custody because it relied upon an outdated version of the relevant statute. See generally Utah Code Ann. § 30-3-10 (Supp.2008); id. § 30-3-10.2. In custody matters, appellate courts generally give the trial court considerable discretion, see Carsten v. Carsten, 2007 UT App 174, ¶ 3, 164 P.3d 429, because the trial court's proximity to the evidence places it in a better position than an appellate court to choose the best custody arrangement. See Shioji v. Shioji, 712 P.2d 197, 201 (Utah 1985). That broad discretion, however, must be guided by the governing law adopted by the Utah Legislature see Utah Code Ann. §§ 30-3-10, -10.2. We review questions of statutory interpretation for correctness. See Wells v. Wells, 871 P.2d 1036, 1038 (Utah Ct.App. 1994).

¶ 7 Wife next claims that the trial court erred in its award of parent-time because it erroneously interpreted the parent-time statutes and failed to consider the child's best interest. As a general rule, "we will not disturb the trial court's visitation determination absent a showing that the trial court has abused its discretion." Childs v. Childs, 967 P.2d 942, 946 n. 2 (Utah Ct.App. 1998). Again, we review the trial court's interpretation of a statute for correctness. See Wells, 871 P.2d at 1038.

¶ 8 Wife's third argument concerns the distribution of the marital property. "`Trial courts have considerable discretion in determining ... property distribution in divorce cases, and [their decisions] will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.'" Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 8, 176 P.3d 476 (omission in original) (quoting Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct.App.1991)). Indeed, the trial court's discretion is so broad "that its actions enjoy a presumption of validity." Elman v. Elman, 2002 UT App 83, ¶ 17, 45 P.3d 176 (internal quotation marks omitted).

¶ 9 In a related challenge, Wife claims that the Business is a de facto partnership and that she was therefore entitled to an accounting of the Business's affairs and a share of its revenues. We review the denial of an accounting and subsequent division of the tangible business assets for an abuse of discretion. See Stonehocker, 2008 UT App 11, ¶ 8, 176 P.3d 476.

¶ 10 Finally, Wife contends that the trial court erroneously granted her divorce due to irreconcilable differences, rather than adultery. We review the trial court's interpretations of law for correctness. See Wells, 871 P.2d at 1038.

ANALYSIS

I. Joint Legal Custody

¶ 11 Wife argues that the trial court's ruling did not comply with the requirements of Utah law because "[n]either party filed a parenting plan" and "[t]he trial court did not make any findings as to the best interest of the child after considering the relevant factors." See generally Utah Code Ann. § 30-3-10.2 (2007). Husband counters that a parenting plan is not necessary because the trial court must consider joint custody in every case and may make an award of joint custody when it is in the child's best interest. See id. § 30-3-10(1)(b) (Supp.2008). "'[W]here statutory language is plain and unambiguous, this Court ... [is] guided by the rule that a statute should generally be construed according to its plain language.'" Sorenson's Ranch Sch. v. Oram, 2001 UT App 354, ¶ 8, 36 P.3d 528 (quoting In re A.B., 936 P.2d 1091, 1097 (Utah Ct.App. 1997)).

¶ 12 Under the express language of the custody statutes, both the filing of a parenting plan and a determination that joint legal custody is in the child's best interest are required before an order of joint legal custody may be issued. See Utah Code Ann. §§ 30-10-10.2, -10.8 (2007). The current version of the statute, which was in effect at the time of these custody proceedings, provides, "The court may order joint legal custody ... if one or both parents have filed a parenting plan ... and it determines that joint legal custody ... is in the best interest of the child." Id. § 30-3-10.2 (emphasis added). Likewise, section 30-3-10.8, which discusses parenting plans, mandates that "any party requesting ... joint legal ... custody ... shall file and serve a proposed parenting plan." Id. § 30-3-10.8(1) (emphasis added). See generally Diener v. Diener, 2004 UT App 314, ¶ 12, 98 P.3d 1178 ("Ordinarily, the use of the word `shall' in a statute creates a mandatory condition eliminating any discretion on the part of the courts."). In addition, section 30-3-10.3 defines the terms of a joint legal custody order, stating, "The court shall, where possible, include in the order the terms of the parenting plan provided in accordance with Section 30-3-10.8." Utah Code Ann. § 30-3-10.3(3) (2007).

¶ 13 Husband relies on section 30-3-10(1)(b) for his position that no parenting plan was required: "The court shall, in every case, consider joint custody but may award any form of custody which is determined to be in the best interest of the child." Id. § 30-3-10(1)(b). However, that same section later assumes the existence of a parenting plan: "This section establishes neither a preference nor a presumption for or against joint legal custody ... but allows the court and the family the widest discretion to choose a parenting plan ...." Id. § 30-3-10(5) (emphasis added). Reading the statutory provisions as a whole, we conclude that the legislature unambiguously provided that joint legal custody is available "if one or both parents have filed a parenting plan ... and it determines that joint legal custody ... is in the best interest of the child." Id. § 30-3-10.2(1) (emphasis added). Because neither party filed a parenting plan, joint legal custody was unavailable. We therefore remand for an order of sole legal custody.³ See id. § 30-3-10(1)(a).⁴

II. Parent-Time

¶ 14 Wife next asserts that the trial court erred in its award of parent-time. When the parents cannot agree on a visitation arrangement, the Utah Code delineates minimum parent-time schedules. See Utah Code Ann. § 30-3-35(2) (Supp.2008) (in-state visitation); id. § 30-3-37(5) (out-of-state visitation). Because Husband resides primarily in California, the trial court initially awarded Husband parent-time according to the statutory schedule for parents who reside more than 150 miles from the child. See id. § 30-3-37. Section 30-3-33(9) further provides, however, that "[t]he court may make alterations in the parent-time schedule to reasonably accommodate the distance between the parties and the expense of exercising parent-time." Id. § 30-3-33(9).

¶ 15 Husband lives out of a trailer and travels...