Peck v. Polanco

360 P.3d 780

2015 UT App 236

Ryan D. PECK, Petitioner and Appellant,

v.Nathaly POLANCO, Respondent and Appellee.

No. 20140079–CA.

Court of Appeals of Utah.

Sept. 17, 2015.

Brent D. Wrideand Bryant McConkie, Salt Lake City, Attorneys for Appellant.

Aaron P. Dodd, Provo, Attorney for Appellee.

Memorandum Decision

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 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 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, 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, 334 P.3d 994. Here, the trial court had before it not just the report and testimony of the Evaluator, but also the testimony of the parents 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.”¹See id.

¶ 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 Fath...