Jones v. Jones , 374 P.3d 45 ( 2016 )

2016 UT App 94THE UTAH COURT OF APPEALS
AUTEM JONES,
Appellee,
v.
TIMOTHY KEITH JONES,
Appellant.
Memorandum Decision
No. 20140618-CA
Filed May 12, 2016
Sixth District Court, Richfield Department
The Honorable Marvin D. Bagley
No. 124600194
Brent M. Brindley, Attorney for Appellant
Jared L. Peterson, Attorney for Appellee
SENIOR JUDGE PAMELA T. GREENWOOD authored this
Memorandum Decision, in which JUDGES GREGORY K. ORME and
STEPHEN L. ROTH concurred.1
GREENWOOD, Senior Judge:
¶1 Appellant Timothy Keith Jones (Father) appeals the
district court’s order allowing his ex-wife, Autem Jones
(Mother), to exercise standard parent-time with their children in
Moab, Utah, as provided in Utah Code section 30-3-35. We
affirm.
¶2 Father and Mother were married in early 2003 and spent
the majority of their married life in Moab. When they separated
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
Jones v. Jones
in early 2010, Father moved to St. George, Utah; Mother stayed
in Moab with their three children. The following year, in July of
2011, Father and Mother—who both desired physical custody of
their children—were divorced by a bifurcated decree, allowing
the parties to dissolve the marriage before the question of child
custody was determined.
¶3 In December 2011, the district court issued a
supplemental decree of divorce, granting the parties joint legal
custody of the three children and awarding Father physical
custody. At that time, Father and Mother lived 339 miles apart.
“Because of the distance . . . between the parties’ homes,” the
district court determined that Mother should receive parent-time
in accordance with Utah Code section 30-3-37. The supplemental
decree further provided that if Mother “moves to St. George or if
the parties otherwise live within a reasonable distance of each
other, [Mother] should have parent time consistent with . . . § 30-
3-35,” which would allow her more frequent access to the
children.2
¶4 Father subsequently remarried, and he and the children
relocated to Monroe, Utah—reducing the distance between
Mother and the children from 339 miles to 186 miles. Mother
continued to live and work in Moab but also rented a house in
Monroe, where she hoped to spend more time with the children.
2. Pursuant to Utah Code section 30-3-35, minimum parent-time
for noncustodial parents is overnight visits every other weekend
and once during the week, along with provisions for holidays
and summers. Utah Code Ann. § 30-3-35 (LexisNexis Supp.
2015). Alternatively, if noncustodial parents reside greater than
150 miles from their minor children, then minimum parent-time
is outlined in section 30-3-37. Utah Code Ann. § 30-3-37
(LexisNexis Supp. 2015). Under this section, parent-time
includes fewer weekend and weekday visits, and different
holiday visitation provisions. Id.
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Father refused, however, to allow her more parent-time. Mother
filed an order to show cause, seeking standard parent-time
under section 30-3-35 and arguing that the supplemental decree
of divorce allowed her more frequent visits if she lived within a
“reasonable distance” of the children. The district court
determined that Mother had “established residency in Monroe”
and ordered standard parent-time consistent with section 30-3-
35.
¶5 Later, significant expenses for the children’s medical care
made it difficult for Mother—whose income was seasonal—to
meet her financial obligations, including rent for the Monroe
house. Thus, Mother petitioned the court again, this time to
continue her expanded parent-time under section 30-3-35, but to
do so while living in Moab. Mother argued that her children
could develop deeper familial bonds with their cousins,
grandparents, aunts, and uncles living in or near Moab and that
her children could develop a relationship with her fiancé. Father
responded that because Moab is 186 miles from his home in
Monroe, Mother’s parent-time should accord with section 30-3-
37, because “whether it’s an equal burden as far as travel, it’s a
much greater burden as far as disruption of the [children’s+
routine.”
¶6 The district court stated at the hearing on Mother’s
motion that a strong “showing of material change of
circumstances” was not needed because the supplemental decree
of divorce contemplated standard parent-time “if the parties
were [within] a reasonable distance of each other.” In its findings
of fact and conclusions of law, the district court also found that
standard parent-time with Mother in Moab would be in the
children’s best interests because the children “have significant
relationships with family and friends in Moab” and because
“[v]isitation in Moab will allow the children to spend time
around” Mother’s fiancé. The district court noted that the travel
burden under the original decree was roughly the same burden
contemplated under the present plan. Furthermore, the court
20140618-CA 3 2016 UT App 94Jones v. Jones
was concerned that Mother’s maintenance of a second home in
Monroe would be “an unnecessary use of finances that could
otherwise be better used for the benefit of the parties’ children.”
¶7 On appeal, Father contends that the district court abused
its discretion when it modified the divorce decree, allowing
Mother to receive standard parent-time in Moab. He argues that
modifications to “parent time orders” “must be made only upon
a showing of a material change of circumstances and that the
children’s best interests would be served by the modification.”
He claims the district court’s order was improper because “there
had been no material change of circumstances” and because
“*t+raveling from Monroe to Moab every other weekend will
greatly limit the children’s opportunities to participate in sports
and other activities, peer activities and social events, church and
scouting events, and similar activities.” He thus argues that there
was not a material change of circumstances to justify the district
court’s action and that the change to standard parent-time is not
in the children’s best interests.
¶8 We review a district court’s alleged failure to require
evidence establishing a material change of circumstances for
correctness, “according no particular deference to the trial
court.” Cummings v. Cummings, 821 P.2d 472, 475, 476 (Utah Ct.
App. 1991). We review a district court’s decisions regarding
parent-time for an abuse of discretion. Tobler v. Tobler, 2014 UT
App 239, ¶ 12, 337 P.3d 296; see also Childs v. Childs, 967 P.2d 942,
946 n. 2 (Utah Ct. App. 1998) (“*W+e will not disturb the trial
court’s visitation determination absent a showing that the trial
court abused its discretion.”).
¶9 We first determine whether the district court erred by
failing to require evidence establishing a material change of
circumstances. Cf. Cummings, 821 P.2d at 475 (requiring trial
courts to “determine whether there is sufficient evidence of a
substantial and material change in circumstances” before
“reexamination of the custody question”).
20140618-CA 4 2016 UT App 94Jones v. Jones
¶10 While altering custody orders generally requires a
showing of substantial change in circumstances material to the
modification of custody, Hogge v. Hogge, 649 P.2d 51, 54 (Utah
1982) (requiring “changes in the circumstances upon which the
previous award was based” and “that those changes are
sufficiently substantial and material to justify reopening the
question of custody”), a lesser showing may be required when
the change sought is not a change of custody, see Haslam v.
Haslam, 657 P.2d 757, 758 (Utah 1982) (stating that a “change in
circumstances required to justify a modification of a divorce
decree varies with the type of modification sought”). In Becker v.
Becker, 694 P.2d 608 (Utah 1984), the Utah Supreme Court
approached whether there was a “material change with respect
to visitation” as a different inquiry from whether there was a
material change with respect to custody. Id. at 609, 611(discerning no abuse of discretion in altering “visitation
arrangements” even though there was “no substantial change in
circumstances material to the modification of custody”). Thus,
while Becker may require some showing of change in
circumstances when a district court alters parent-time
arrangements, that showing does not rise to the same level as the
substantial and material showing required when a district court
alters custody. Consequently, there was no error in the district
court’s failure to require a substantial or material change of
circumstances.
¶11 In this case, the district court found several factors that
had changed subsequent to the prior two visitation schedule
orders, including Mother’s relocation to Moab, additional
financial needs of the children for medical bills, and Mother’s
rental of the Monroe residence. Furthermore, the supplemental
decree of divorce allowed for a change in parent-time if Mother
lived within a “reasonable distance” of Father. In addition, given
the discretion accorded to the trial courts in divorce matters, we
do not believe that section 30-3-37 establishes a rigid
requirement that whenever parents live 150 miles or more apart,
parent-time must be determined as set forth in that provision.
20140618-CA 5 2016 UT App 94Jones v. Jones
See Utah Code Ann. § 30-3-33(9) (LexisNexis 2013) (allowing the
court to “make alterations in the parent-time schedule to
reasonably accommodate the distance between the parties”).
Thus, the district court did not err when it failed to require a
showing of material change in circumstances to alter the parties’
parent-time arrangement.
¶12 We next decide whether the district court abused its
discretion in concluding that exercising standard parent-time
with Mother at her home in Moab was in the children’s best
interests.
¶13 The Utah Supreme Court has long recognized that “[t]rial
courts have continuing jurisdiction to consider motions to
modify dealing with . . . visitation rights.” Kallas v. Kallas, 614
P.2d 641, 645 (Utah 1980); see also Utah Code Ann. § 30-3-5(3)
(LexisNexis 2013) (recognizing a district court’s “continuing
jurisdiction” over child custody and child maintenance
determinations). We also note that it “is the trial court’s
prerogative to hear and weigh the conflicting evidence and to
make findings of fact.” Kramer v. Kramer, 738 P.2d 624, 628 (Utah
1987). Trial courts have “particularly broad discretion” in
ordering parent-time, and we will only intervene when the trial
court’s action “is so flagrantly unjust as to constitute an abuse of
discretion.” See Jorgensen v. Jorgensen, 599 P.2d 510, 511–12 (Utah
1979), disavowed on other grounds by Pusey v. Pusey, 728 P.2d 117,
119 (Utah 1986).
¶14 The district court heard evidence that the children had
previously lived in Moab, that they had extensive friends and
family in or near Moab, and that they could develop a more
familial relationship with Mother’s family and fiancé by
exercising standard parent-time in Moab. It also considered the
fact that the children’s medical bills, coupled with Mother’s
seasonal income, made it difficult for Mother to maintain a
second home in Monroe while still meeting her financial
obligations. The district court acknowledged that travel time for
20140618-CA 6 2016 UT App 94Jones v. Jones
the children increased, but found that the children would benefit
from increased parent-time with Mother. Although Father’s
travel time would also increase, the district court properly
prioritized the children’s best interests. See, e.g., Dana v. Dana,
789 P.2d 726, 730 (Utah Ct. App. 1990) (“The paramount concern
in child visitation matters is the child’s welfare or best interest.
Fostering a child’s relationship with the noncustodial parent has
an important bearing on the child’s best interest.” (citation
omitted)). The district court thus found that it was “in the long-
term best interest of the children that they develop a relationship
with [Mother] where she lives.”
¶15 The district court’s conclusion that the best interests of the
children would be served by allowing them to spend more time
with Mother in Moab was not “so flagrantly unjust as to
constitute an abuse of discretion.” See Hogge v. Hogge, 649 P.2d
51, 56 (Utah 1982) (citation and internal quotation marks
omitted). The district court’s ruling was within its “continuing
jurisdiction to make subsequent changes or new orders for the
custody of the children . . . as is reasonable and necessary.” Utah
Code Ann. § 30-3-5(3).
¶16 As a final matter, Mother requests attorney fees on appeal
on the theory that Father’s appeal is frivolous. We do not agree.
This court may award attorney fees to the prevailing party if we
determine that the appeal “is either frivolous or for delay. For
purposes of [the Utah Rules of Appellate Procedure], a frivolous
appeal . . . is one that is not grounded in fact, not warranted by
existing law, or not based on a good faith argument to extend,
modify, or reverse existing law.” LD III, LLC v. BBRD, LC, 2009
UT App 301, ¶ 21, 221 P.3d 867 (omission in original) (citations
and internal quotation marks omitted). The sanction, however,
for filing “a frivolous appeal applies only in egregious cases with
no reasonable legal or factual basis.” Id. (citation and internal
quotation marks omitted). “*A+n unsuccessful appeal which is
worthy of consideration is not an egregious case worthy of
sanctions and, therefore, is not frivolous.” Id. (alteration in
20140618-CA 7 2016 UT App 94Jones v. Jones
original) (citation and internal quotation marks omitted). While
Father’s appeal was unsuccessful, “it does not rise to the level of
an egregious case deserving of sanctions.” See id. We therefore
decline to award attorney fees to Mother.
¶17 The district court did not err when it required a lesser
change of circumstances in making alterations to its parent-time
order, nor did it abuse its discretion when it determined that it
was in the best interests of the Jones children to spend parent-
time with Mother in Moab consistent with Utah Code section 30-
3-35. Accordingly, we affirm. No fees awarded.
20140618-CA 8 2016 UT App 94