2021 UT App 5
THE UTAH COURT OF APPEALS
KELLEY HARPER,
Appellee,
v.
DAMON M. HARPER,
Appellant.
Opinion
No. 20190351-CA
Filed January 14, 2021
Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 104402558
D. Grant Dickinson, Attorney for Appellant
Anthony C. Kaye, Melanie J. Vartabedian, Allison G.
Belnap, and Nathan R. Marigoni, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 Damon M. Harper (Harper) appeals the district court’s
order denying his petition to modify custody. He contends that
the court should have concluded that circumstances had
changed substantially, justifying a modification, based on
temporary conditions that had been resolved by the time of trial
and based on the temporary custody arrangement that was in
place during the proceedings on his petition. We affirm.
Harper v. Harper
BACKGROUND 1
¶2 In 2012, Harper divorced Kelley Harper, who is now
known as Ian Giles (Giles). 2 Harper and Giles have one child
(Child). After trial, the court awarded joint legal custody to both
parents and awarded primary physical custody of Child to Giles.
The divorce decree further provided that “both parties shall be
completely open about where [Child] will be, where she can be
reached, and who will be providing substitute care for [her].”
¶3 One day in October 2015, Giles failed to pick up Child
from school. The school then contacted Harper, but before
Harper arrived—and unbeknownst to Harper—Giles had
arranged for a proxy to pick up Child. Giles did not answer
Harper’s subsequent calls and was not home to inform Harper of
Child’s whereabouts, prompting Harper to call the police. Giles
did not thereafter offer an explanation or disclose why they had
not kept Harper informed.
¶4 In the spring of 2016, Harper learned that Child had
accrued absences and tardies at school. He also learned that
during the October 2015 incident, Giles was at the hospital and
that some of Giles’s acquaintances were concerned for Giles’s
health.
¶5 In April 2016, Harper filed a petition to modify the
divorce decree, seeking, as relevant here, primary custody of
1. We recite the facts consistent with the district court’s findings
of fact. See Nebeker v. Orton, 2019 UT App 23, ¶ 2 n.1, 438 P.3d
1053. On appeal, Harper does not take issue with the court’s
factual findings.
2. Giles’s brief informs us that Giles uses they/them/their
pronouns. We therefore refer to Giles using their preferred
pronouns.
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Harper v. Harper
Child. Relying chiefly on the October 2015 incident, Child’s
school attendance problems, and concerns about Giles’s health,
Harper asserted that “a material and substantial change in
circumstances” existed to justify modifying the divorce decree.
Harper simultaneously applied for a temporary restraining
order that would award him immediate primary care and
custody of Child.
¶6 At a hearing on April 18, 2016, a domestic relations
commissioner determined that a temporary modification of
custody was warranted. The commissioner thus awarded
temporary custody of Child to Harper and ordered that
Giles would have supervised parent-time with Child. A final
amended order from the hearing was entered on May 6, 2016
(the Temporary Order). Giles did not timely object to this ruling,
and Child remained in Harper’s custody. Thus, the Temporary
Order—which, as the district court later explained, was
“never intended to extend beyond a trial on the merits of
the petition to modify the original decree”—remained in
place until the petition to modify was tried to the bench in
November 2018. 3
¶7 During trial, Harper argued that a material and
substantial change in circumstances had occurred since the
original custody award was entered because Giles “has become
less capable of caring for [Child] as a result of a degradation” in
Giles’s health and that these health issues had “negative effects”
on Child, including increased tardies and less success in school.
The district court ultimately rejected Harper’s argument that
there was a change in circumstances.
3. During the more than two-year period between entry of the
Temporary Order and trial, Giles attempted to vacate the
Temporary Order and moved to dismiss the petition to modify,
but those efforts were unsuccessful.
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Harper v. Harper
¶8 The court found that although Giles acknowledged
experiencing temporary health issues between the fall of 2015
and the spring of 2016, Giles credibly testified that their health
problems resulted from “an unanticipated reaction to prescribed
medication” and that they improved when their doctors
modified their prescription. The court similarly noted that one
doctor concluded that Giles’s health concerns during that period
“were situational—related to events.” It also found that Giles
was “capable of feeding, loving, and caring” for Child and that
nothing in Giles’s life or parenting style was “threatening or
potentially harmful” to Child. Additionally, the court found
Harper had not produced sufficient evidence that Giles’s health
concerns had “significantly or substantially inhibited [their]
ability to care for and meet [Child’s] needs” or that Giles
“lack[ed] the sufficient human, monetary, or other resources to
care for [Child].” The court further found that both Harper and
Giles have “an uncommon willingness to see to [Child’s
particular] needs.” And even though the ability of the parents to
communicate openly about Child’s care and location was
“suppressed for a time” as Giles dealt with personal problems,
“that inability is now resolved.”
¶9 The court then determined that there was no showing of
the requisite change in circumstances to justify modifying the
divorce decree. It reasoned that the “permanence of an alleged
changed circumstance matters” given that “[p]ersons become ill
occasionally and no one is permanently [in] best” health. For
example, and in line with public policy, the court observed that
“it is expected in periods of temporary disability that a joint
parent will step in to see to the best interests of a child.” But if
“such a circumstance were to justify a reconsideration of custody
. . . , it would discourage openness, cooperation, and
communication that is core to expected behavior under joint
custody orders.” The court then determined that the
circumstances from the fall of 2015 to the summer of 2016 “were
concerning” and that “[i]mmediate action to protect” Child in
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Harper v. Harper
“the form of [the Temporary Order] was justified.” Yet the court
found that “not long after the flurry of activity in 2016, [Giles]
recovered to the same capacities that resulted in an order of
primary physical custody at the time of divorce in 2012.”
¶10 Because Harper “failed to establish that a material,
substantial change of circumstances has occurred which would
justify setting aside the conclusion of [the court] from 2012,” the
court concluded that “[f]urther consideration of [Child’s] best
interests is therefore not possible under Utah law.” The court
accordingly denied Harper’s petition to modify the divorce
decree. Consequently, although Child had remained in Harper’s
custody from the time of the Temporary Order until trial—a
period lasting around two and a half years—the court ordered
that the custody arrangement under the divorce decree would be
restored and “primary custody and care for [Child] will
transition back to [Giles].” Harper appeals.
ISSUE AND STANDARD OF REVIEW
¶11 Harper contends that the district court erred in declining
to determine that a change in circumstances had occurred that
would justify modifying the custody arrangement in the divorce
decree. We review the court’s “ultimate determination regarding
the presence or absence of a substantial change in
circumstances” for an abuse of discretion. Peeples v. Peeples, 2019
UT App 207, ¶ 11, 456 P.3d 1159. “An appellate court can
properly find abuse of discretion only if no reasonable person
would take the view adopted by the trial court.” Hibbens v.
Hibbens, 2015 UT App 278, ¶ 12, 363 P.3d 524 (cleaned up).
ANALYSIS
¶12 While not challenging the court’s factual findings, Harper
contends that the district court erred in concluding that he had
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Harper v. Harper
not established a material and substantial change in
circumstances. Harper’s challenge has two parts. First, Harper
argues that Giles’s health issues from the fall of 2015 through the
spring of 2016 did in fact constitute a material change in
circumstances and that the district court “failed to consider”
those concerns. Second, Harper argues that “the trial court failed
to consider the 2.5 years [Child] has spent in the care of Harper
as part of the changed circumstances.”
¶13 The Utah Code requires that a “court order modifying
. . . an existing joint legal custody or joint physical custody order
shall contain written findings that: (i) a material and substantial
change of circumstance has occurred; and (ii) a modification of
the terms and conditions of the order would be an improvement
for and in the best interest of the child.” Utah Code Ann.
§ 30-3-10.4(2)(b) (LexisNexis 2019). 4 Under this two-step
approach, “a court first must decide ‘whether there are changed
circumstances warranting the exercise of the court’s continuing
jurisdiction to reconsider the custody award.’” Doyle v. Doyle,
2011 UT 42, ¶ 24, 258 P.3d 553 (quoting Hogge v. Hogge, 649 P.2d
51, 53 (Utah 1982)). “Only if circumstances have materially and
substantially changed may the court proceed to the second
step—a determination ‘as to the manner in which custody
should be modified, if at all,’ based on a de novo review of the
child’s best interests.” 5 Id. (quoting Hogge, 649 P.2d at 53). The
4. Because recent statutory amendments since the relevant time
are not material in this case, we cite the current version of the
Utah Code.
5. Our two-step approach requires “only analytical—and not
formal procedural—bifurcation,” recognizing that “evidence
supporting changed circumstances is often the same evidence
that is used to establish the best interests of the child.” Doyle v.
Doyle, 2011 UT 42, ¶¶ 28, 33, 258 P.3d 553 (cleaned up).
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Harper v. Harper
district court’s determination “that there has or has not been a
substantial change in circumstances is presumed valid” and is
reviewed only for an abuse of discretion. Hibbens v. Hibbens, 2015
UT App 278, ¶ 12, 363 P.3d 524 (cleaned up).
¶14 The change-in-circumstances requirement serves several
purposes. Doyle, 2011 UT 42, ¶ 25. “First, because a custody
decree is predicated on a particular set of facts, that decree is res
judicata,” and “the threshold requirement of changed
circumstances thus prevents an unnecessary drain on judicial
resources by repetitive litigation of the same issue when the
result would not be altered.” Id. (cleaned up). Second, the
requirement “protects the custodial parent from harassment by
repeated litigation.” Id. (cleaned up). Third, it also “protects the
child from ‘ping-pong’ custody awards.” Id. (cleaned up).
¶15 To satisfy the change-in-circumstances threshold
requirement, “the party seeking modification must demonstrate
(1) that since the time of the previous decree, there have been
changes in the circumstances upon which the previous award
was based; and (2) that those changes are sufficiently substantial
and material to justify reopening the question of custody.”
Hogge, 649 P.2d at 54. Where this “burden of proof is not met, the
trial court will not reach the second step, the petition to modify
will be denied, and the existing custody award”—here, the
divorce decree’s award of primary custody to Giles—“will
remain unchanged.” See id. 6
6. Unlike an adjudicated custody decree, such as the one in this
case, a stipulated custody decree “is not necessarily based on an
objective, impartial determination of the best interests of the
child, and therefore the res judicata policies underlying the
changed-circumstances rule are at a particularly low ebb.”
Peeples v. Peeples, 2019 UT App 207, ¶ 15, 456 P.3d 1159 (cleaned
up). Thus, “in some cases, a lesser showing of changed
(continued…)
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Harper v. Harper
¶16 Harper first argues that Giles’s health concerns, present at
the time he filed his petition to modify custody, satisfied the
change-in-circumstances requirement. We disagree. Despite
Giles’s admitted health issues from late 2015 to early 2016, the
district court found that those problems were temporary and
that, at the time of trial, Giles had “recovered to the same
capacities that resulted in an order of primary physical custody
at the time of divorce.” Given these unchallenged findings, the
court essentially determined that the facts as they existed at the
time of trial in 2018 mirrored the facts as they existed at the time
of the divorce decree in 2012. Thus, in the court’s view, as
compared to the time of the divorce decree, there had not been a
change in the circumstances on which the previous custody
award was based. See id.; see also Becker v. Becker, 694 P.2d 608,
610 (Utah 1984) (“[C]ustody placements, once made, should be
as stable as possible unless the factual basis for them has
completely changed.”). We do not see an abuse of discretion in
the court’s decision.
¶17 Second, Harper argues that the court should have
concluded that circumstances had changed based on the fact that
the Temporary Order giving him primary custody of Child had
been in place for around two and a half years during the course
of these proceedings. Again, we disagree. The Temporary Order
was only that—temporary. See Tucker v. Tucker, 910 P.2d 1209,
1215 (Utah 1996). As a temporary custody order, it was “effective
(…continued)
circumstances may support modifying a stipulated award than
would be required to modify an adjudicated award.” Id. (cleaned
up). For the same reasons, in change of custody cases involving a
nonlitigated custody decree, the changed-circumstances rule
“must not be so inflexible as to categorically foreclose
examination of the child’s well-being.” Taylor v. Elison, 2011 UT
App 272, ¶ 14, 263 P.3d 448.
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Harper v. Harper
only until a fully informed custody determination [could] be
made at a final hearing.” Id. Indeed, the court here “never
intended [the Temporary Order] to extend beyond a trial on the
merits of the petition to modify.” See generally Utah R. Civ. P. 106
(permitting the court to order temporary modifications to
custody during the pendency of a petition to modify). We agree
with Giles that, unlike a permanent custody order, a temporary
custody order is modifiable without a showing of a substantial
and material change in circumstances. See Tucker, 910 P.2d at
1215–16.
¶18 Additionally, Harper’s emphasis on the Temporary Order
misplaces the proper focus of the change-of-circumstance
inquiry. Generally, “the asserted change must have some
material relationship to and substantial effect on parenting
ability or the functioning of the presently existing custodial
relationship and not on the parenting of the noncustodial
parent.” 7 Doyle, 2011 UT 42, ¶ 41 (cleaned up). Harper’s custody
of Child under the Temporary Order does not alone demonstrate
a change in circumstance bearing on Giles’s parenting ability or
the functioning of the custodial relationship established under
the divorce decree. See id. Thus, the district court did not abuse
its discretion by declining to give more weight to the Temporary
Order.
¶19 We recognize that the district court’s denial of Harper’s
petition to modify resulted in Child being returned to Giles’s
custody after she spent over two years in Harper’s care under
7. There is an exception to this general rule. Namely, “where the
original custody award was subject to or apparently conditioned
upon an improvement in the noncustodial parent’s
circumstances, a court may properly consider those changes in
deciding to reopen the original custody determination.” Doyle,
2011 UT 42, ¶ 41 (cleaned up). This exception is not at issue in
this case.
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Harper v. Harper
the Temporary Order as this case was pending. While we
appreciate that this shift may have been disruptive at that
juncture, the law is clear that “[i]t is only where circumstances
have substantially changed that the trial court may reopen a
litigated custody order and reevaluate the best interests of the
child de novo.” Id. ¶ 38. Here, the district court observed that
“[w]ere it to go there, the consideration of [Child’s] best interests
. . . would be a difficult, close contest.” But our supreme court
has instructed that “[e]ven an overwhelming case for the best
interest of the child could not compensate for a lack of proof of a
change in circumstances.” Id. In light of Harper’s failure to
establish a material and substantial change in circumstance that
would justify modifying the divorce decree’s custody award, the
district court correctly concluded that “further consideration of
[Child’s] best interest is not possible under existing Utah law.”
See id. ¶¶ 24, 38.
CONCLUSION
¶20 The district court did not abuse its discretion in
determining that there had not been a substantial and material
change in circumstances. Accordingly, we affirm.
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