Peck v. Polanco

2015 UT App 236

THE UTAH COURT OF APPEALS

RYAN D. PECK,
Petitioner and Appellant,
v.
NATHALY POLANCO,
Respondent and Appellee.

Memorandum Decision
No. 20140079-CA
Filed September 17, 2015

Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 114402157

Brent D. Wride and Bryant McConkie, Attorneys
for Appellant
Aaron P. Dodd, Attorney for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES MICHELE M. CHRISTIANSEN and JOHN A. PEARCE
concurred.

ROTH, Judge:

¶1 Ryan D. Peck (Father) appeals the trial court’s
determination that custody of the parties’ children remain with
their mother, Nathaly Polanco (Mother). We affirm.

¶2 Father and Mother were married in Utah in April 2006.
The couple moved to the Dominican Republic, Mother’s place of
birth, in November 2008. The parties entered into a pro se
stipulated divorce decree in December 2011. The stipulation
provided for joint legal and physical custody of their three
children. Father moved to California following the divorce, and
Mother remained in the Dominican Republic. Father filed a
petition to modify the divorce decree in May 2012. He alleged
 Peck v. Polanco

that Mother had failed to comply with the divorce decree,
particularly with respect to their agreements related to the care
of the children, and sought sole physical custody and joint legal
custody with Mother.

¶3 The trial court appointed a custody evaluator (the
Evaluator). The Evaluator spent time with the children and both
parents, traveling to both California and the Dominican
Republic, and interviewed extended family members, teachers,
and others who interacted with the children. The Evaluator
concluded that an arrangement where the parents lived closer
together and shared parent-time equally would be ideal. If such
an arrangement was not feasible, he recommended that primary
physical custody be transferred to Father.

¶4 At trial, the court heard from several witnesses including
Mother, Father, the Evaluator, the children’s grandmothers, and
a family acquaintance with whom Mother had lived as a college
student. The trial court entered a lengthy written decision
denying Father’s petition. The court noted this was a “very, very
difficult” case because “[i]t is a very, very close case and difficult
decision and each party’s position has strong merit.” The court
further stated, “Each parent in this case is competent, good,
loving and caring and each equally wants to be with their
children and genuinely believes the children would be better off
with him or her. Their decision to divorce and live in two distant
countries makes that impossible.” Given the difficulty inherent
in arranging for small children to travel frequently between the
Dominican Republic and California, the trial court concluded
that granting sole physical custody to one parent was best for
the children. After making extensive factual findings, the trial
court concluded that there was “nothing presented in support of
the petition to modify that compels a major change” in the
custody arrangement and denied Father’s petition to modify
the divorce decree. The court did order, however, that the parties
consult with a qualified “co-parenting therapist to improve

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communications and help provide a set, predictable, regular
parent time schedule.”

¶5 Father appeals the trial court’s decision, contending that
the court erred in rejecting the recommendation of the Evaluator
and denying Father’s petition to modify. “A trial court’s decision
concerning modification of a divorce decree will not be
disturbed absent an abuse of discretion. Moreover, [i]t is the
burden of the party seeking modification of a divorce decree to
demonstrate that there has been a substantial change in
circumstances that justifies modification.” Crouse v. Crouse, 817
P.2d 836, 838 (Utah Ct. App. 1991) (alteration in original)
(citations and internal quotation marks omitted). However, “in
change of custody cases involving a nonlitigated custody decree,
a trial court, in applying the changed-circumstances test, should
receive evidence on changed circumstances and that evidence
may include evidence that pertains to the best interests of the
child.” Elmer v. Elmer, 776 P.2d 599, 605 (Utah 1989); Taylor v.
Elison, 2011 UT App 272, ¶¶ 13–16, 263 P.3d 448.

¶6 Father does not contest any of the trial court’s factual
findings; rather, he argues that “the conclusion drawn from [the]
evidence must unmistakably be that the children’s father should
have physical custody with very liberal parent time for their
mother.” He points to the Evaluator’s conclusion that Father
should have physical custody of the children and contends that
“[t]here was no contrary expert opinion offered to the court, nor
was it demonstrated that the [E]valuator was incompetent,
biased, or somehow unfit in his service.” Accordingly, Father
argues “it was improper for the court to reject the conclusion of
the [E]valuator.”

¶7 But “[c]ourts are not bound to accept the testimony of an
expert and [are] free to judge the expert testimony as to its
credibility and its persuasive influence in light of all of the other
evidence in the case.” Barrani v. Barrani, 2014 UT App 204, ¶ 4,

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334 P.3d 994 (second alteration in original) (quoting State v.
Maestas, 2012 UT 46, ¶ 200, 299 P.3d 892). “Nevertheless,
[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.’” Id. (alterations in original)
(citation omitted). The trial court did that here.

¶8 The trial court explained that while it found the
Evaluator’s report “well done and thorough,” it “simply
disagree[d] to some extent with the final conclusion.” The court
further explained that while the court “does not intend to nor
does it negate the work [of the Evaluator],” it “simply factors
more heavily some facts than did [the Evaluator] and reaches an
opposite conclusion from the facts.” The Evaluator’s
recommendation focused on Father’s report of “considerable
difficulty in communicating with his children,” Father’s superior
ability or desire to facilitate a relationship between the children
and both parents, and the suggestion by Mother’s parents “that
some of the needs of the children are not being met,” as well as
the significant amount of time the children spend with Mother’s
parents instead of with Mother. The trial court’s ultimate
conclusion, however, gave more weight to the fact that Mother
had always been the children’s primary caregiver; that the
children were doing well under the current arrangement; that
Mother had relatives living nearby who assist with caring for the
children, while Father did not have family living near him in
California; and that two of the three children were born in the
Dominican Republic and did not speak English—all factors
the Evaluator did not appear to weigh as heavily as did the trial
court.

¶9 “[W]e will not second guess a court’s decisions about
evidentiary weight and credibility if there is a reasonable basis in
the record to support them.” Barrani, 2014 UT App 204, ¶ 6.
Here, the trial court had before it not just the report and
testimony of the Evaluator, but also the testimony of the parents

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 Peck v. Polanco

themselves and others familiar with the circumstances. Based on
this testimony, the trial court concluded,

The court believes that balancing all factors, and the
many intangibles involved, given the considered
options, that mother’s ability to provide ongoing
and personal care, given her current marital status
in the homeland of the children, and given her
support from a current husband and her parents
even though somewhat alienated from mother, that
the negatives discussed above are overcome and
mother should retain primary physical custody.

We therefore conclude, as we did in Barrani, that “[i]n this case,
the trial court explained why it was rejecting the expert’s
recommendation, and that explanation has a basis in the
record.” 1 See id.

1. It is noteworthy that the trial court did not wholly reject the
Evaluator’s conclusions or recommendations. Indeed, the trial
court adopted the majority of the Evaluator’s recommendations.
The Evaluator determined that the ideal scenario was one where
Mother and Father lived “in close proximity to one another,
and that they develop a parenting plan that provides equal and
consistent time with both parents”—a conclusion implicitly
adopted by the trial court when it noted that “[t]he children need
regular, ongoing, frequent contact with each [parent].” It was
only if the parents were unwilling to live near each other that the
Evaluator recommended primary physical custody be given to
Father, a conclusion with which the trial court disagreed.
However, the Evaluator also determined that “[r]egardless of the
location of the parents, living close or not, it is recommended
that [Father] and [Mother] work to improve their co-parenting
together” and that “[i]t would be beneficial to them to work with
a forensically involved therapist who understands conflictual
(continued…)

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 Peck v. Polanco

¶10 Father further contends the court erred as a matter of law
in denying his petition, because “none of the factors listed in the
statute and case law weighed in favor of the mother.” We
disagree. Father focuses on the following factors considered by
the trial court in determining custody: (1) past conduct and
moral standards of the parties; (2) desire for custody; (3) which
parent will act in the child’s best interest; and (4) the best
interests of the child—including moral character and emotional
stability, the ability to provide personal rather than surrogate
care, which parent will allow the other parent visitation, and
religious compatibility. Father argues that the trial court agreed
with the Evaluator that each factor weighed in favor of Father
gaining custody and that “there was no evidence” to support the
trial court’s conclusion that the children were better off
remaining with Mother.

¶11 It is true that the trial court found that some of these
factors weighed in favor of granting Father custody. For
example, the trial court found that “Father is more willing to
facilitate a relationship between the children and [M]other than
[M]other is willing to facilitate a relationship between the
children and [F]ather.” And the court did state that Father was
more emotionally stable than Mother, though “not head and
shoulders above [M]other.” However, Father’s claims that the
trial court found in favor of Father on each of these factors and
that “none of the factors” weighed in favor of Mother
misconstrues the trial court’s findings and conclusions. For
example, Father claims that the court found that the factor
addressing the parties’ desire for custody “weighs very heavily

(…continued)
divorce and custody matters, and one who can help [Father] and
[Mother] improve communication.” The trial court accepted this
recommendation and ordered the parents to work with such a
therapist.

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 Peck v. Polanco

in favor of [Father].” In reality, however, the trial court
determined that while “one would have to look rather far to find
a greater desire [for custody] exhibited than [Father] has shown
in this case,” “the evidence is unsatisfactory to show much of a
preference for either [party].” The trial court concluded that both
parties loved their children and had their best interests at heart.
And “[a]s to providing personal as opposed to surrogate care,
[M]other prevails on this factor clearly.”

¶12 Perhaps more importantly, the factors specifically listed
by Father are only a few of the factors a trial court may take into
account when making a custody or best interests determination.
“There is no definitive checklist of factors to be used for
determining custody since such factors are highly personal and
individual, and do not lend themselves to the means of
generalization employed in other areas of the law . . . .” Sukin v.
Sukin, 842 P.2d 922, 924 (Utah Ct. App. 1992) (citation and
internal quotation marks omitted). “The trial court must,
however, make adequate findings regarding the best interests of
the child and the past conduct and demonstrated moral
standards of each of the parties” and “consider which parent is
most likely to act in the best interests of the child, including
allowing the child frequent and continuing contact with the
noncustodial parent as the court finds appropriate.” Id. (citations
and internal quotation marks omitted); see also Utah Code Ann.
§§ 30-3-10, -10.2 (LexisNexis 2012). “In ruling, the trial court
should give stability and continuity the weight that is
appropriate in light of the duration of the existing custodial
relationship and the general welfare of the child.” Elmer v. Elmer,
776 P.2d 599, 605 (Utah 1989).

¶13 Here, the trial court took into account each of the required
factors. It made adequate findings related to the best interests of
the children when it addressed the conduct and moral standards
of the parties, the bond between the parties and the children,
the needs of the children, the participation of the parents in the

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children’s lives before the divorce, the geographical proximity of
the homes, and the potential for any abuse. See Utah Code Ann.
§§ 30-3-10, -10.2 (setting forth the factors a trial court should
consider when determining custody). And the trial court
discussed at length the commitment of each party to cooperate
with the other to facilitate a relationship between the children
and the other parent. See Sukin, 842 P.2d at 924; see also Utah
Code Ann. §§ 30-3-10, -10.2. The court also considered the ages
of the children, the language and birthplace of the children,
the support available to the children from extended family, the
schooling and religious arrangements available to the children,
and Mother’s remarriage. The court found that the factors it had
considered weighed in favor of Mother continuing as the
primary physical custodian.

¶14 We recognize, as the trial court did, that this was a very
difficult and close case with meritorious arguments from both
parties—both of whom love and care for their children. But the
fact that the evidence could also have supported a determination
that Father should gain primary physical custody of the
children, as the Evaluator recommended, does not make the trial
court’s decision in favor of Mother an abuse of discretion. “As
with many close questions, the trial court is in the best position
to make a decision that falls within the scope of his or her
discretion . . . .” State v. Burke, 2011 UT App 168, ¶ 44, 256 P.3d
1102 (citation and internal quotation marks omitted). Here, the
trial court heard not only from the Evaluator but also from
the parties themselves, and the court ultimately concluded, for
reasons clearly articulated in its thorough memorandum
decision and supported by the record, that it was in the
children’s best interests to leave them in the primary care of
Mother. See Smith v. Smith, 726 P.2d 423, 426 (Utah 1986) (“[I]t is
essential the trial court set forth in its findings of fact not only
that it finds one parent to be the better person to care for the
child, but also the basic facts which show why that ultimate
conclusion is justified.”). Because we determine that the trial

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court undertook the necessary best-interests analysis and made
sufficient findings to support its conclusion, we conclude that
the trial court did not abuse its discretion in departing from the
Evaluator’s recommendation in deciding to reject Father’s
petition to modify the custody provisions of the divorce decree.

¶15 Affirmed.

20140079-CA 9 2015 UT App 236