Corn v. Groce

552 P.3d 245

2024 UT App 84

Janette CORN, Appellee,

v.Blake GROCE, Appellant.

No. 20220526-CA

Court of Appeals of Utah.

Filed May 31, 2024

Second District Court, Farmington Department, The Honorable Ronald G. Russell, No. 194700657

Alexandra Mareschal and Julie J. Nelson, Attorneys for Appellant

Emily Adams, Freyja Johnson, and William M. Fontenot, Salt Lake City, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 Blake Groce (Father) appeals the district court’s rejection of his petition to modify parent-time. He also challenges the court’s calculation of Janette Com’s (Mother) net income for child support purposes. Because the court did not abuse its discretion when ruling on either issue, we affirm.

BACKGROUND

¶2 Father and Mother are the parents of twin daughters (the Children). In 2015, the parties agreed to joint legal and physical custody of the Children, with Father exercising parent-time four overnights during a two-week period, and the district court entered a decree reflecting this agreement (Original Decree). In 2016, Father moved out of state for work. The following year, Father began dating stepmother (Stepmother); the two married in 2019.

¶3 In 2019, due in part to Father’s relocation out of state, Mother petitioned to modify the Original Decree, seeking sole physical custody of the Children subject to Father’s parent-time. Father responded to the petition and filed a counterpetition seeking orders related to the Children’s healthcare. Father did not ask for a change in parenttime.

¶4 Shortly thereafter, the parties entered into a stipulation (2019 Stipulation). By its express terms, the 2019 Stipulation did "not resolve the competing petition and counterpetition to modify custody." It did, however, set forth a "temporary" parent-time schedule that would increase Father’s parenttime upon his planned relocation to Utah. The parties agreed that upon Father’s relocation, the parties would follow, "on a temporary basis until further agreement of the parties or further order of the Court," the parent-time schedule in Utah Code section 30-3-35.1. Pursuant to that schedule, Father would exercise five overnights during a two-week period (an increase of one overnight). The parties further agreed that if the increased parent-time schedule were to take effect, they would adhere to it "for at least six (6) months." At that point, if either party wanted to change parent-time, the party could submit a written request communicating the desired change, after which the parties would attend mediation. And if the parties had not "otherwise reach[ed] an agreement regarding a permanent parent-time order" after Father had exercised the increased schedule for "six (6) months and thereafter," either party could "request mediation in writing."

¶5 In August 2019, Father made the move to Utah and began exercising his increased parent-time. The following year, the district court entered the 2019 Stipulation as an order (2020 Order).

¶6 In August 2020, Father filed a petition to modify the custody and parent-time awarded in the 2020 Order. In this petition, Father sought sole physical and legal custody of the Children based on circumstances that he alleged had changed since the entry of the 2020 Order. The changes included the decreased quality of education at the Children’s school, Father’s desire to teach the Children religious values, Father’s work trips and the right of first refusal created a "disconnect" between the Children and Stepmother, the parties’ disagreement over the Children’s vaccines, Mother’s changing financial situation, and Mother’s failure to use a Google calendar. Most notably, Father also alleged that Mother exhibited "inappropriate behaviors" in front of the Children, causing them mental health issues that required counsel- ing, which Mother had refused to allow. In a separate motion, Father asked the court to appoint a custody evaluator to aid the court in making a custody determination. The court granted Father’s request and appointed an evaluator (Evaluator).

¶7 As the case proceeded, the district court held several pretrial conferences to determine which issues were to be certified for trial. After much confusion on both sides, the court entered a pretrial order stating that the issues certified for trial were intended to resolve (1) Mother’s 2019 petition to modify the Original Decree, (2) Father’s 2019 counterpetition to modify the Original Decree, and (3) Father’s petition to modify the 2020 Order. But at the final pretrial conference a few months later, Mother informed the court that she was "not pursuing" her 2019 petition to modify.

¶8 Shortly before trial, Father submitted a trial memorandum to the district court addressing the issues certified for trial. Regarding "[p]hysical custody/parent time," Father asserted that "[j]oint physical custody is appropriate" and requested that the court award him either "220 overnights to Mother’s 145 overnights" or "equal parent time"¹ And regarding "[l]egal custody/terms of parenting plan," Father asserted that "[j]oint legal custody is appropriate" and requested that the court implement a parenting plan filed by Father. Father also requested changes to child support.

¶9 In response to Father’s request to change child support, Mother filed an updated financial declaration. Mother is a self-employed realtor. In her financial declaration, Mother listed her monthly income as $6,599 ($6,000 salary plus $599 child support), and her annual salary as "approximately" $72,000. Mother supported the declaration with her 2020 tax return and three months of bank statements. The tax return listed $106,408 in gross income and $30,745 of expenses, resulting in a net income of $75,663. Those expenses included advertising, vehicle expenses, insurance, office expenses, office rent, office supplies, bank charges, membership dues and fees, education costs, internet fees, telephone charges, referral fees, software fees, website charges, equipment fees, and broker fees.

¶10 A two-day bench trial was held in March 2022. At the outset of the trial, Mother asked for clarification with respect to what relief Father was requesting. She explained that Father had requested sole physical custody in his petition to modify but that he had requested only a change to parent-time in his trial memorandum. She asserted the difference was relevant because "based on what [Father’s] requesting, either just additional parent-time or actually sole legal custody …, then that would change the showing that he needs to make."

¶11 In response, Father reiterated his position, as set forth in his memorandum, that he had "changed [his] position from asking for sole custody" and was seeking only a change in parent-time. Mother objected to "an amendment to the petition to modify if now [Father is] requesting just a change in parent-time" because that had "not been pleaded" and it was "not going to be tried by consent." The court "note[d] [Mother’s] objection" but concluded that the trial could proceed because Father’s requested relief "include[d] a number of items" and was "fairly broad," which would allow the court to order relief as it "deem[ed] appropriate." The court concluded by directing the parties "to present [their] evidence regarding the substantial change in circumstances so that can be considered."

¶12 Over the course of the trial, the district court heard testimony from Evaluator, the parties, and multiple other individuals involved in the Children’s lives. The parties also presented evidence regarding their monthly incomes.

¶13 Evaluator testified about what custody changes would be in the best interest of the Children; she specifically did not discuss whether there had been a change in circumstances. Evaluator opined that since "the very beginning," the parties "had difficult communication," they were "at odds about parent-time [and] about the role of each parent," and Mother "saw herself as the primary person who would care for the [C]hildren and make decisions about them." She expressed that both parents had "some fault in the coparenting difficulties."

¶14 Regarding Mother, Evaluator did not observe any "intense and sudden mood swings," as had been alleged by Father. She noted that Mother "was quite open and forthright about the fact that she lost her temper with the [C]hildren sometimes" but concluded that the behavior was "[n]ot out of the ordinary." Evaluator further expressed that she had not observed Mother acting in an "irrational" manner. Regarding Father, Evaluator observed that in "some circumstances" Father’s actions were not proportionate and that on occasion, he had been "overly concerned about relatively small things."

¶15 Evaluator recommended that the Children have "equal amounts of time with both parents," noting that although the Children "struggle with some anxiety and some stress about parental conflict," overall they "are thriving with both parents" and "have a good relationship with both parents." She opined that "both parents demonstrate appropriate decision-making in terms of the [C]hildren, are good role models for the [C]hildren, and lead an appropriate lifestyle."

¶16 Concerning child support and income, Father introduced Mother’s 2020 tax return as an exhibit. Relying on that document, Mother testified that her 2020 net income was "right around $76,000." She explained that she has "lots of business expenses," totaling around "30-something-thousand dollars," which generally include a monthly Multiple Listing Service fee, a monthly payment to her brokerage, a monthly payment for office rent, yearly dues, and mileage. In addition, Mother noted she pays for trainings, continuing education classes, and seminars; open house expenses; signs; and general office expenses such as paper, business cards, and photos. Lastly, she...