Widdison v. Widdison

Decision Date07 April 2022
Docket Number20200484-CA
PartiesNicole Widdison, Appellant, v. Leon Bryant Widdison, Appellee.
CourtUtah Court of Appeals

2022 UT App 46

Nicole Widdison, Appellant,

Leon Bryant Widdison, Appellee.

No. 20200484-CA

Court of Appeals of Utah

April 7, 2022

Third District Court, Salt Lake Department The Honorable Robert P. Faust No. 144906018

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant

Todd R. Sheeran, Attorney for Appellee

Judge Ryan D. Tenney authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.


¶1 By statute, a district court must ordinarily find that a material and substantial change in circumstances occurred before modifying the custody provisions in a divorce decree. In this appeal, we're asked to answer two main questions about this statute.

¶2 First, if a decree is silent about whether one of the parents has legal custody of a child, is the district court later required to find that there was a material and substantial change in circumstances before determining whether that parent has legal custody in the first instance? We conclude that a material and substantial change in circumstances is not required in such a scenario.


¶3 Second, in situations where the custody modification statute is applicable, can a custodial parent's attempt to sever a years-long relationship between the noncustodial parent and a child legally qualify as a material and substantial change? We conclude that it can.

¶4 Based on these two conclusions, we affirm the modifications at issue.


The Divorce Decree

¶5 Nicole and Bryant Widdison were married in June 2004. They had two children during their marriage, Daughter and Son. Bryant is Daughter's biological father, but Nicole conceived Son with another man during a brief separation from Bryant. Nicole and Bryant reconciled before Son's birth, however, and Bryant was in the delivery room when Nicole gave birth to Son. Bryant is listed on Son's birth certificate, and Son bears Bryant's surname.


¶6 Nicole and Bryant divorced in July 2015. Daughter was ten years old at the time, and Son was about three and a half. The divorce decree (the Decree) was largely based on a stipulation between Nicole and Bryant.

¶7 In the portions relevant to this appeal, the Decree provided:

1. Physical Custody: Nicole shall have physical custody of both said minor children. Bryant will remain on Son's birth certificate unless or until he is challenged by some other legitimate party who prevails in a court of law
. . . .
4. Legal Custody: The parties shall have "joint legal custody" of Daughter. . . . .
8. Parent-Time/Visitation: Bryant shall be entitled to reasonable parent-time with Daughter. Reasonable parent-time shall be defined as the parties may agree. However, if the parties are not able to agree, Bryant shall be entitled to the following parent-time: . . . .
2) . . . Bryant may have two (2) overnights each week to coincide with the days that he is off work with the parties' oldest child, Daughter[, ] during the school year. . . . During the Summer months Bryant may have three overnights every other week and
two overnights on the alternating weeks. . . . As for the youngest child, Son, parent-time will be at Nicole's sole discretion . . . .
3) Bryant shall also be entitled to holidays and summer parent-time as articulated in U.C.A. § 30-3-35 . . . .
. . . .
14. Child Support: . . . Based on [the parties'] incomes, and a sole custody worksheet (even though the parties have a different parent-time arrangement and with the benefit and consent of counsel after being informed and involved), Bryant shall pay Nicole child support in the amount of $450.00 each month for the one female child (Daughter). . . . Any reference to a financial obligation[] or child support in this document shall be interpreted as applying only to the older child (Daughter).

(Emphases added.)

¶8 As noted, the Decree gave Nicole "sole discretion" over whether Bryant could spend parent-time with Son. During the first three years after the divorce, Nicole "regularly and consistently allowed Son to exercise time with Bryant." Her usual practice was to allow Son to accompany Daughter whenever Daughter visited Bryant. Since the Decree entitled Bryant to spend a little over 30 percent of the time with Daughter, this meant that Bryant spent a little over 30 percent of the time with Son during those years too.


The Modification Petitions

¶9 In November 2016, the State filed a petition to modify the Decree to require Bryant to pay child support for Son. The State's petition noted that Son was born during Nicole and Bryant's marriage, and it asserted that Bryant was Son's presumptive legal father under Utah Code § 78B-15-204(1)(a) (LexisNexis 2018)[2], which states that a "man is presumed to be the father of a child if," among others, "he and the mother of the child are married to each other and the child is born during the marriage." The State noted that "[n]o child support has been ordered for this child." It accordingly asked the court to "find[] Bryant to be the legal father of Son" and order him to pay child support for Son.

¶10 In his answer to the State's petition, Bryant agreed that he "is the presumptive father" of Son and expressed his "desire[]" to "be treated as the natural father of Son" "for all intents and purposes." Bryant also asked the court for an order granting him joint legal and physical custody of Son, as well as a "clarification of his rights and duties, namely parent-time with Son."[3]

¶11 In September 2018, Bryant filed his own petition to modify the Decree. There, Bryant asserted that he "has been the only father figure that Son has known," and he argued that he "should be presumed and considered the legal father of Son." Bryant also argued that "[t]here has been a significant, substantial and material change in circumstances that has


occurred since the parties' Decree of Divorce concerning custody, parent-time, and child support, such that modification of the Decree of Divorce is in the best interests of the minor children."[4]

Motion for Temporary Relief

¶12 About two months after Bryant filed his petition to modify, Nicole suddenly cut off Bryant's parent-time with Son. After she did, Bryant filed a motion for temporary relief, asking the court to award him "his historical/status quo parent time with both the minor children" until his petition to modify was resolved.

¶13 The matter went before a court commissioner, and a hearing was held in which Bryant and Nicole and their respective attorneys were present. During the hearing, the commissioner heard how often Son accompanied Daughter during her visits with Bryant. At the close of the hearing, the commissioner ordered Nicole to "immediately resume Bryant's historical/status quo parent time with both minor children" and to "allow Son to follow the parent-time schedule of Daughter, consistent with the historical parent-time exercised by Bryant."

¶14 Nicole objected to the commissioner's recommendation, but the district court overruled that objection. The court instead


agreed to temporarily "modify the stipulation to reflect what the parties themselves were actually doing regarding parent time." The court surmised that "reducing the visitation the parties themselves were doing" might "be harmful to the child." The court continued that it "could also be argued that such visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children." Nicole was thus ordered to give Bryant "the same parent-time with Son, consistent with Bryant's parent time with Daughter," while Bryant's petition to modify was pending.

The Relocation Proceedings

¶15 A short time later, Nicole requested an expedited phone conference with the court, explaining that the company she worked for was requiring her to relocate to California. After a hearing, the commissioner recommended that "[t]he children . . . remain in Utah until the Court changes the Order regarding custody and parent time."

¶16 During the hearing, the commissioner further noted that "[c]onspicuously absent from Nicole's argument [was] anything-from this Court's perspective-showing she's considering the child's perspective." In particular, the commissioner explained that

Son has shared time with the older sibling going to Bryant's home. Nicole has regularly and consistently allowed this child to exercise time with Bryant. In [November] of 2018, Nicole disagreed. And I agree, she does have the discretion to make decisions with regard to Son. From the child's perspective, however, one child goes with Dad and the other doesn't, because Bryant stepped on Nicole's toes. She says, I'm
establishing boundaries; you don't get to see this child. That's fine if this child is a car or a refrigerator. Son [is] a person who has Bryant's surname, who has been exercising time-from what I can see-[a] full seven years.

The commissioner further explained that "there's been enough of a change, enough consistency for this younger child, that he has followed the older child, has the same surname [as Bryant], [Bryant's] name's on the birth certificate that has not been changed, to follow [Daughter's parent-time] schedule."

¶17 Nicole did not object to the commissioner's recommendation, and she hasn't relocated in the meantime.

The District Court's Ruling on Bryant's Petition to Modify

¶18 A bench trial was held in November 2019 to settle the issues raised in Bryant's petition to modify and Nicole's request to relocate. The district court later entered an order titled "Amended Findings of Fact and Conclusions of Law on Petitioner's Relocation Request," which addressed both the relocation request and the broader issues regarding Bryant's legal and physical custody.

¶19 In...

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