James C. PINGREE, Appellee, v. Rita F. PINGREE, Appellant.
No. 20150227-CA
Court of Appeals of Utah
Dec. 21, 2015
Rehearing Denied Jan. 14, 2016
2015 UT App 302
¶ 17 Wright maintains that she should not be required to pay attorney fees because she acted in good faith in refusing to release the AITD. However, parties are required to plead affirmative defenses in their responsive pleading. See
III. Conclusion
¶ 18 We conclude that the first promissory note was satisfied when Chase paid off the Countrywide mortgage and remitted the balance of the $341,000 to Wright. Accordingly, the district court correctly granted summary judgment in favor of Chase. Furthermоre, because Wright failed to plead good faith as an affirmative defense to an award of attorney fees, the district court did not err in awarding Chase its fees. Because Chase was awarded its fees in the district court and requested fees on appeal, Chase is also entitled to an award of its fees incurred on appeal. See Pack v. Case, 2001 UT App 232, ¶ 39, 30 P.3d 436 (“When a party who received attorney fees below prеvails on appeal, the party is also entitled to fees reasonably incurred on appeal.” (citation and internal quotation marks omitted)). Thus, we affirm the district court‘s rulings but remand for the district court to calculate an award of fees and costs on appeal.
Thomas J. Burns and Joshua D. Chandler, Salt Lake City, for Appellee.
Judge GREGORY K. ORME authored this Opinion, in which Judge MICHELE M. CHRISTIANSEN concurred. Senior Judge RUSSELL W. BENCH concurred in the result.1
ORME, Judge:
¶ 1 Ritа F. Pingree (Mother) appeals the district court‘s order denying her request to relocate with the parties’ child (Child) and ordering a conditional transfer of child custody. Because the district court properly considered Child‘s best interests, and because the parties bargained in the underlying divorce proceeding for an arrangement in which Mother would remain in Utah, we affirm.
¶ 2 Mother and James C. Pingree (Father) were married in 2004, and in 2008, Child was born. Father filed for divorce in September 2011. In May 2012, while the divorce was still pending, Mother graduated from medical school at the University of Utah. Around that time, Mother sought a court order that would allow her to relocate with Child to North Carolina, where Mother hoped to begin a medical residency. A court-appointed custody evaluator was still in the process of completing her evaluation, so the evaluator submitted a letter to the district court opposing Mother‘s request to relocate. The district court ultimately denied the request.
¶ 3 The custody evaluator eventually finished her report, in which she recommended that the parties be awarded joint legal and physical custody. After negotiations, Father and Mother reached a settlement agreement incorporating this recommendation, which the district court approved. The settlement agreement also provided that Father would pay Mother monthly alimony for five and a half years, which was non-modifiable, “because [Mother] will [forgo] a residency in radiology.” These provisions were all outlined in a divorce decree entered on June 19, 2014.
¶ 4 The following month, Mother again requested that she be allowed to relocate with Child, this time to Connecticut, for the purpose of beginning a medical residency. She did so by filing a petition to modify the parties’ divorce decree. This petition was treated below as a motion to relocate and is the subject of the instant appeal. Father opposed the motion, and the matter was heard by a district court commissioner. The commissioner recommended that Mother‘s motion be denied because rеlocation was not in Child‘s best interest. Mother objected to the commissioner‘s recommendation, and the issue went before the assigned district court judge.
¶ 5 At a hearing on January 5, 2015, the district court heard testimony from Mother, offered in support of the motion, and received testimony and an updated custody evaluation report from the custody evaluator, offered by Father. The district court overruled Mother‘s objection and adopted the commissioner‘s recommendation, denying the motion to relocate and instead entering an order for a conditional change of custody. The order stated that Mother was free to move out of state, but that if she did, primary custody would shift to Father. Mother appeals, arguing that the district court erred in its analysis of Child‘s best interests, by not allowing a full evidentiary hearing, by deferring to the commissiоner‘s recommendation, by failing to make findings of fact and conclusions of law, and by denying Mother and Child their due process rights.
ISSUE AND STANDARDS OF REVIEW
¶ 6 Despite Mother‘s focus on several alleged errors, we need only decide whether the district court erred in determining that relocation was not in Child‘s best interest and by ordering a conditional change in custody. We review the district court‘s interpretation of relevant statutes for correctnеss and its custody determinations for an abuse of discretion. See Donnelly v. Donnelly, 2013 UT App 84, ¶ 11, 301 P.3d 6; Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 3, 241 P.3d 365.
ANALYSIS
I. Child‘s Best Interests
¶ 7 In all custody determinations, the district court‘s “primary focus must be on the
A. Requirements of Section 30-3-37
¶ 8 We begin by considering the requirements of the relocation statute. See
In a hearing to review the notice of relocation, the court shall, in determining if the relocation of a custodial parent is in the best interest of the child, consider any other factors that the court considers relevant to the determination. If the court determines that relocation is not in the best interest of the child, and the custodial parent relocates, the court may order a change of custody.
B. The District Court‘s Best-Interest Analysis
¶ 9 The district court expressly found “that it is not in [Child‘s] best interest to relocate away from her fаther.” This finding was supported, in part, with the following analysis:
I‘m not going to disturb custody, a joint custody, a joint physical [custody] because one parent wants to leave and disrupt that, where the child has lived in Salt Lake her whole life. She has family. She has school. She has social contacts. She has continuity here and I‘m not going to do it for four years and then bring her back for four years, I‘m not going to do it under [section] 30-3-37.
¶ 10 Mother argues that this constitutes “inadequate analysis” because “[t]he trial court focused on factors in [section] 30-3-37(5), which relate to the parents and not the child, in making its best interest determination.” We disagree with Mother‘s criticism of the court‘s analysis,2 and we note that these findings were further supported by the commissioner‘s analysis, given that the district court expressly “found no error on the part of the Commissioner and ... adopted the reasoning set forth in the Commissioner‘s order.” As this court has previously explained,
it is not erroneous for a district court to adopt a commissioner‘s findings rather than making its own separate findings where its decision and reasoning do not differ from that of the commissioner. Where the district court does so, we will simply evaluate the commissioner‘s findings as though they were made by the district court.
Veysey v. Veysey, 2014 UT App 264, ¶ 17 n.5, 339 P.3d 131.
¶ 11 The commissioner made her recommendation with reference to rule “4-903 of the Utah Rules of Judicial Administration,” which “outlines the provisions that custody evaluators should use in determining what is appropriate or [in the] best interest of a child.” The commissioner determined that those provisions that are relevant here would be the issue of the relative strength
behavior demonstrated that she did nоt fully understand or accept the importance of that relationship as evidenced by her insistence in trying to limit [Father]‘s parent time to the minimum statutory schedule, by her refusal to give [Father] the opportunity to care for [Child] when [Mother] was not available including while she was travelling out of town and by her ongoing insistence on her right to physically separate [Child] from [Father] for multiple years.
The district court‘s best-interest analysis focused on factors such as the importance of continuity in Child‘s family, school, and social relationships; the relative strength of Child‘s bond with each parent; the interest in continuing the present custody arrangement; and the ability of each parent to provide personal rather than surrogate care. The court, through its adoption of the commissioner‘s analysis, also found persuasive Mother‘s inability to understand or accept the importance of Child‘s relationship with Father. Then, after considering all of these factors, the district court determined that it was not in Child‘s best interest to relocate. We cannot see how this decision was in error, given the court‘s compliance with statutory requirements and Mother‘s failure to directly challenge any factual finding made by the district court, including those findings made by the commissioner and adopted by the court.
C. The Conditional Change of Custody
¶ 12 We next consider Mother‘s argument that there was no “compelling reason to change custody.”3 Under
¶ 13 After the district court concluded that relocating to Connecticut was not in Child‘s best interest, it went on to find that if Mother elected to relocate, “a change in custody would be required, with [Father] being awarded primary physical custody.” Mother argues that the district court “made no finding that there were compelling circumstances justifying the change of custody.” She cites Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491, for the proposition that a court must find compelling circumstances before ordering a change in custody when the child thrives under the current arrangement. But what Mother fails to mention is that Hudema was a case in whiсh the mother had sole physical custody, the mother had already moved out of state, and the court was considering a petition to modify custody. Id. ¶¶ 3-4. A modification is premised on a finding of changed circumstances. See
¶ 14 Mother has failed to carry her burden of persuasion on appeal because she challenges the conditional change of custody without primary focus on the applicable law. Because the district court correctly applied section 30-3-37 by ordering a conditional change of custody only after it determined that rеlocation was not in Child‘s best interest, there was no error.
II. The Parties’ Settlement Agreement
¶ 15 There is a separate and nearly independent ground on which we affirm the district court‘s order. We have already explained that the district court fulfilled its obligations in evaluating Child‘s best interest. After doing so, the district court simply gave Mother a choice: if she relocates, custody will change; if she remains in Utah, it will not. And Mother fails to acknowledge that she bargainеd for this result. She agreed not to pursue an out-of-state residency in exchange for more than five years of non-modifiable alimony payments. Then, a month after reaching that agreement, she sought to move with Child so she could accept such a residency. Thus, the district court‘s order is entirely consistent with—indeed, it serves to enforce—a negotiated provision of the settlement agreement and divorce dеcree.4
III. Mother‘s Due Process Challenge
¶ 16 Mother argues that the district court denied her due process by not allowing certain evidence at the hearing.5 It is true that after objecting to a commissioner‘s recommendation, “any party has the right ... to present testimony and other evidence on genuine issues of material fact relevant to custody.” See
IV. The Parent-Time Agreement
¶ 17 Finally, we note that this is the sort of circumstance that should have been contemplated and comprehensively dealt with in the parties’ parenting plan—the key to any well-ordered joint custody arrangement. At the time of divorce, Mother had recently completed medical schоol, a fact of which both parties were well aware, and both parties understood that for Mother to become a practicing physician, she would need to complete a medical residency, just as Father had done as part of his own training to become a practicing physician. At the time of the divorce, Mother had not succeeded in securing
CONCLUSION
¶ 18 The relevant statute requires district courts to determine whether relocation is in a child‘s best interest. The district court did so here, considering a wide range of faсtors that were pertinent to the parties involved. It ultimately concluded that Child should not relocate to Connecticut, even if Mother chose to do so, and we see no error in that conclusion. Furthermore, the district court acted within its discretion in ordering a conditional change of custody after it determined that Child would be best served by remaining in Utah. This outcome is further supported by the parties’ agreement, at the time of divorce, that Mother would not pursue a medical residency out of state, in exchange for which she would receive substantial, non-modifiable alimony. Thus, Mother is left with a choice: She can leave circumstances as they were agreed upon at the time of divorce, staying in Utah and forgoing a residency if she cannot find one here, or she can elect to relocate, at which point the custody arrangement will change so that Child can remain in Utah. There was no error in the district court giving Mother this choice, difficult though it no doubt is for a parent who wants both to maximize her time with her child and to advance professionally.
¶ 19 Affirmed.