Woodward v. Lafranca

• Decision Date: 13 June 2013
• Docket Number: No. 20120545–CA.,20120545–CA.
• Parties: James WOODWARD, Petitioner and Appellant, v. Julie LaFRANCA, Respondent and Appellee.
• Court: Utah Court of Appeals

305 P.3d 181

736 Utah Adv. Rep. 24

James WOODWARD, Petitioner and Appellant,

v.Julie LaFRANCA, Respondent and Appellee.

No. 20120545–CA.

Court of Appeals of Utah.

June 13, 2013.

Sara Pfrommer and John Murray, for Appellant.

Brent D. Young and Dallas B. Young, for Appellee.

Judge JAMES Z. DAVIS authored this Opinion, in which Judges WILLIAM A. THORNE JR. and MICHELE M. CHRISTIANSEN concurred.

Opinion

DAVIS, Judge:

¶ 1 James Woodward (Father) challenges the trial court's denial of his petition to modify the custody provisions of his and Julie LaFranca's (Mother) divorce decree. We reverse and remand for further proceedings.

BACKGROUND

¶ 2 Father filed for divorce from Mother in July 2006, immediately before their son (Child) was born. Although Father initially petitioned for custody, he was soon after deployed to Iraq and the divorce was put on hold. In November 2007, the parties entered into a Stipulation and Agreement regarding custody and visitation, wherein Mother was awarded sole physical custody of Child subject to Father's rights to parent time. The trial court accepted the stipulation and entered a decree of divorce on February 15, 2008.

¶ 3 Between 2008 and 2010, the parties had a number of disputes concerning visitation, which resulted in additional court proceedings. In August 2009, Mother began making reports to police, the Department of Child and Family Services (DCFS), and the United States Army (Father's employer), alleging that Child had been physically and sexually abused during Father's parent time. Such complaints continued through July 2010 and resulted in a number of forensic interviews and examinations of Child. In September 2009, Mother put Child in therapy for the purpose of addressing the alleged abuse. After several months in therapy, Mother requested a new therapist because “she was looking for someone that maybe [Child] would talk to and she didn't feel like she was getting what she needed out of [the first therapist].” The second therapist (the Therapist) saw Child between December 2009 and August 2010. All of Mother's abuse allegations were determined to be unfounded.

¶ 4 On July 28, 2010, Father filed a Petition to Modify Decree of Divorce, in which he requested that sole physical custody of Child be transferred to him. On November 8, 2010, a domestic commissioner (the Commissioner) found that Mother had severely abused Child by making repeated unsubstantiated abuse allegations to various agencies and subjecting Child to multiple unnecessary forensic interviews and examinations. The Commissioner determined that it was in Child's best interests for temporary custody to be granted to Father and appointed a special master (the Special Master) to monitor and manage the parties' case. See generallyUtah R. Civ. P. 53. A custody evaluator (the Evaluator) was also engaged to evaluate the parties and make recommendations regarding custody in accordance with rule 4–903 of the Utah Rules of Judicial Administration. See generally Utah R. Jud. Admin. 4–903.

¶ 5 Mother objected to the Commissioner's recommendations, and the matter came before the trial court in a four-day hearing in November and December 2011. The trial court heard testimony from, inter alios, Mother, Father, the Evaluator, the Therapist, and the Special Master. The Evaluator opined, based on his interviews of all relevant individuals, psychological evaluations of Father and Mother, and extensive review of myriad collateral materials, that the question of which parent's custody would serve Child's best interests was “not a ‘close call’ ” and recommended that Father be granted sole legal and physical custody of Child. The Therapist and the Special Master also testified regarding their concerns about Mother regaining sole custody.¹ However, the trial court rejected the experts' testimonies and found that “the Commissioner's Recommendation and Order was not justified.” (Emphasis omitted.) The trial court's Findings and Conclusions explained,

The Court found [Mother]'s testimony sincere and credible. Her demeanor and all that demeanor encompasses lead the Court to this conclusion. Evidence at trial demonstrated that [Mother] desisted her allegations many months ago. She also indicated that she will “support the relationship between” [Father] and ... Child—[Mother]'s support of ... Child and [Father]'s relationship is demonstrated by her past facilitation of parent time with [Father] and willingness to support such an arrangement in the future.

The court determined that the experts' testimonies were either not credible or not persuasive and refused to employ the experts' conclusions in its analysis of the best interests factors. Accordingly, relying primarily on Mother's testimony, the trial court rejected the Commissioner's recommendation and denied Father's petition to modify custody.

ISSUE AND STANDARDS OF REVIEW

¶ 6 Father argues that the trial court abused its discretion by declining to modify the custody provisions in the divorce decree, asserting that the factual findings underlying its decision—its credibility determinations in particular—were unsupported by the evidence. “The trial court's decision regarding custody will not be upset absent a showing of an abuse of discretion or manifest injustice.” Sukin v. Sukin, 842 P.2d 922, 923 (Utah Ct.App.1992) (citation and internal quotation marks omitted). “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Utah R. Civ. P. 52(a).

ANALYSIS

I. Evaluation of the Expert Testimony

¶ 7 Father first challenges the trial court's determination that the Therapist and the Evaluator were not credible and that the Special Master's testimony was unpersuasive. “[A]lthough the trial court [is] not bound to accept” an expert's recommendation, the court is expected to articulate “some reason for rejecting the recommendation.” Tuckey v. Tuckey, 649 P.2d 88, 91 (Utah 1982) (remanding for additional findings where the trial court rejected, without explanation, the recommendations of the Department of Social Services); accord Sukin, 842 P.2d at 925–26 (remanding for additional findings where the trial court failed to explain its rejection of a custody evaluator's recommendation). In this case, even though the trial court articulated several reasons for rejecting the experts' testimonies, Father maintains that those reasons were unsupported by the evidence and insufficient to undermine the experts' credibility. “It is the province of the trier of fact to assess the credibility of witnesses, and we will not second-guess the trial court where there is a reasonable basis to support its findings.” Reed v. Reed, 806 P.2d 1182, 1184 (Utah 1991). Nevertheless, a finder of fact “is [not] at liberty, under the guise of passing upon the credibility of a witness, to disregard his testimony, when from no reasonable point of view is it open to doubt.” Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 216, 51 S.Ct. 453, 75 L.Ed. 983 (1931). Thus, we may reverse a trial court's credibility determination if its findings in support of that determination are “clearly erroneous,” that is, if they “are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made.” State v. Walker, 743 P.2d 191, 193 (Utah 1987); cf. State v. Krukowski, 2004 UT 94, ¶¶ 23–24, 100 P.3d 1222 (ordering that, unless the court of appeals could affirm on alternative grounds, the case should be remanded for the trial court to reconsider a witness's credibility where the trial court's original credibility determination was premised on its erroneous view that the witness had failed to comply with a duty to disclose certain information to the magistrate).

A. Findings Regarding the Therapist's Credibility

¶ 8 The Therapist testified that she was concerned about the effect Mother's anxiety over Child's visits with Father might have on Child and on his relationship with Father. She also expressed concern about Mother asking Child “a lot of questions ... about being abused.” The Therapist testified that Mother continually pressured her to ask Child about abuse he may have suffered while in Father's custody, and that she had to repeatedly inform Mother that it was not the Therapist's role to question Child in that way. According to the Therapist, on one occasion, immediately after having been told by the Therapist that Child should not be asked such questions, Mother began asking Child “specific questions about what had happened” and the Therapist had to ask her to return to the waiting room for the remainder of the session. ² The Therapist testified that this issue had been addressed with Mother “numerous times,” which she clarified meant approximately “eight or nine times” over the course of sixteen or seventeen therapy sessions. The Therapist also testified regarding an August 29, 2010 letter she had written at the parties' request prior to their hearing before the Commissioner, in which she stated that “[o]ver the last two months, [Mother's] fear appear[ed] to have heightened.” When cross-examined about the fact that the Therapist had not had sessions with Child between June 15 and August 5 of that year, the Therapist clarified, “[F]rom the time that I had seen [Mother] before [in June], where things seemed to be getting a little better, that now I'm seeing her in August and it seemed to be much more intensified.”

¶ 9 The trial court found it significant that, despite testifying that she had reiterated to Mother “eight or nine times” that the Therapist's role was not to ask Child direct questions about the alleged abuse, the Therapist only recorded two or three such instances in her therapy notes. It further determined that the Therapist could not have known whether Mother's anxiety...