Lobendahn v. Lobendahn

540 P.3d 727

Marcus James LOBENDAHN, Appellant and Cross-appellee,

v.LeeYen Moevai LOBENDAHN, Appellee and Cross-appellant.

No. 20210278-CA

Court of Appeals of Utah.

Filed November 16, 2023

Luke A. Shaw, Sandy, and Jill L. Coil, Attorneys for Appellant

Julie J. Nelson, Daniel Ybarra, Orem, and Alexandra Mareschal, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Ryan M. Harris and Ryan D. Tenney concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 Marcus James Lobendahn (Father) appeals the district court's denial of his petition to modify the parties’ divorce decree. LeeYen Moevai Lobendahn (Mother)¹ also appeals the court's order denying her request for attorney fees incurred in responding to Father's petition to modify. We affirm the district court's order in all respects.

BACKGROUND

¶2 The parties were married in 2008 in Hawaii. Following their marriage, the parties moved to Utah and had two children—a daughter and a son (Son). In May 2015, Father moved to New Jersey for employment purposes, and Mother and the children followed a little while later. Shortly after Mother arrived in New Jersey, Father asked Mother for a divorce and filed for a divorce in Utah. Mother suggested that the children live with Father in the marital apartment while she rented a separate place and cared for the children while Father was at work. Father declined the offer and advised Mother that she and the children should move back to Utah, which they did. The parties’ divorce was finalized through a stipulated decree in Utah in early 2016 while Father still lived in New Jersey. The decree awarded the parties joint legal and physical custody of the children and Father parent-time under section 30-3-37 of the Utah Code with additional time during certain breaks.

¶3 Father moved back to Utah in the fall of 2016, and Mother allowed him parent-time every other weekend, similar to the schedule provided in section 30-3-35 of the Utah Code. In 2017, Father filed a petition to modify based on his relocation, and the parties resolved the petition through a stipulation modifying the decree of divorce. Based upon their agreement, Father would exercise parent-time as provided in section 30-3-35 until he moved within fifteen miles of Mother's residence in Utah County, at which time his parent-time would increase pursuant to the schedule described in section 30-3-35.1, with some modifications. Father did not move within fifteen miles of Mother and the children at that time but remarried and moved to his wife's residence in Salt Lake County. Even so, Mother allowed Father to exercise increased parent-time.

¶4 Mother sent a letter to Father in March 2018, notifying him of her intent to remarry and relocate with the children to Washington state. A few weeks later, Father notified Mother that he had signed a lease for an apartment in an area within fifteen miles of her residence in Utah County. Father continued to reside with his wife in Salt Lake County but would stay at the apartment when exercising parent-time with the children. Thereafter, Father filed a motion to restrain Mother from relocating, which the court denied, concluding that Mother's move to Washington was in the best interest of the children. Mother remarried and moved to Washington in the summer of 2018.

¶5 While the parties were litigating Mother's relocation, Father filed a second petition to modify. Father argued that he should be awarded primary physical custody of the children, who should live with him in Utah, and that Mother should be awarded parent-time under section 30-3-37 of the Utah Code. Father's petition alleged that Mother had not been entirely truthful in describing the reasons for her relocation, that the children struggled in school upon moving to Washington, that Mother had been evasive about Father's proposal to relocate to Washington to live close to the children, that Mother interfered with his parent-time since she had relocated, that Mother had been uncooperative in planning the children's travel, and that Mother interfered with Father's participation in Son's baptism. Father also requested that a custody evaluator be appointed to make recommendations about what custodial arrangement would be in the best interest of the children, and the court granted that request.

¶6 The court appointed a custody evaluator (Evaluator), who began her evaluation in July and completed her work in November 2019. Evaluator interviewed the parties, their respective spouses, and Son, and she observed the children with both parents in their homes. At the time Evaluator conducted her evaluation, the children had lived in Washington with Mother for approximately one year. Evaluator delivered her recommendations to the parties at a settlement conference in April 2020, and completed her report five months later. Evaluator recommended that the parties continue to share joint physical and legal custody but that the children should relocate back to Utah. Evaluator recommended that if Mother did not return with the children, Father should have primary physical custody with statutory visitation for Mother. Later, at the trial on Father's petition to modify, Evaluator advised that in her opinion—while both parents shared a close, positive relationship with the children and Mother had been the children's primary caretaker for their entire lives—Mother did not truly support the children's relationship with Father and the broad benefit of having access to Father outweighed the potential risk that a second relocation adjustment would be hard for the children. And she acknowledged that her relocation recommendation was based on her understanding that if the court ordered the children to relocate back to Utah, Mother would move back to Utah as well. Evaluator also conceded that by the time of trial, the children had lived in Washington for two-and-a-half years and that the delay between her evaluation and the trial could be significant. She agreed that "some of the facts that [she] relied on to make [her] determinations are now out of date." She agreed that the children had probably changed and matured emotionally, psychologically, socially, and physically and that she had not had any contact with the children in more than a year and a half.

¶7 The court held a trial in March 2021 on Father's petition to modify. Father's petition was based on his contention that Mother's move to Washington was selfishly motivated and harmed the children and that Mother had failed to facilitate Father's role in the children's lives and had excluded him from decision-making. Father testified about particular instances that, in his view, demonstrated Mother's inability to co-parent and unwillingness to facilitate his role in the children's lives. These included:

• Son's difficulty in school after the relocation and resultant disputes between the parties about whether to move him to a different classroom or have him tested for autism ;

• Son's baptism in July 2019 and Father's role in that event;

• Mother's apparent unwillingness to commit to living in Washington for the long term when Father was contemplating relocating there to be closer to the children;

• Father's participation in obtaining passports for the children so they could visit Mother's ill father in Tahiti and Father's contention that he did not intend to use these circumstances to coerce Mother into moving back to Utah; and

• Mother's alleged interference with Father's visitation in February 2019.

¶8 Mother testified to her version of the events and issues raised in Father's testimony. Specifically, Mother testified:

• That her decision to move from Utah was not to get herself and the children away from Father;

• That she addressed Son's difficulties in school following the relocation and how she wanted to have him tested for autism as recommended by his teacher but Father did not want the school to do any testing;

• That Son's school difficulties had mostly been resolved by the time of trial and that his recent less-than-stellar report card had more to do with remote learning than continued transition issues;

• That given Son's age and stage of development, she believed it was appropriate to let him choose who would baptize him and where the baptism would take place and that Mother never interfered with Father's wish to perform the baptism;

• That Father caused a big scene before the baptism ceremony, which Son overheard, and Father demanded that he perform both the baptism and the confirmation;

• That when Father considered moving to Washington and asked Mother to commit to remaining in the area, Mother did not think it was wise to promise Father that she would live in Washington forever because of the constant litigation she had already experienced over custody;

• That the conflict that arose when Mother tried to obtain passports for the children in 2018 to visit her father in Tahiti after he had been diagnosed with cancer required her to file an order to show cause in December 2019 to compel Father to complete an affidavit and sign the passport applications, which he eventually did, but the children's passports did not arrive in time for them to travel to Tahiti before Mother's father passed away; and

• That Father does a good job keeping up with and supporting the children's interests.

¶9 At the conclusion of the trial, Mother asked the court to award her attorney fees.

¶10 In its written ruling issued after the trial, the court addressed Mother's alleged failure to facilitate Father's role in the children's lives. Regarding Son's baptism, the court found that Father had adduced no evidence demonstrating that Mother had broached the subject of baptism with Son in an attempt to create contention, or that Son had suffered any psychological harm from Mother's actions. The court found, however, that the evidence admitted "demonstrates poor judgment on Father's part," that the only evidence of conflict surrounding the baptism was...