Mackey v. Mackey

----ooOoo----

Penny Leona Mackey,
Petitioner and Appellee,

v.

Robert Kenneth Mackey,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010158-CA

F I L E D
October 24, 2002 2002 UT App 350 -----

Second District, Farmington Department
The Honorable Darwin C. Hansen

Attorneys:
Steven R. Bailey, Ogden, for Appellant
Stuwert B. Johnson, Ogden, for Appellee -----

Before Judges Billings, Davis, and Orme.
BILLINGS, Associate Presiding Judge:

Robert K. Mackey (Father) appeals from a contempt order splitting custody of Father's two minor children.(1)

Father argues the custody change is contrary to the trial court's findings from the divorce decree that "it was in the best interests of the children to be together." In its contempt order findings, Father asserts, the trial court does not sufficiently explain its change of position in ordering split custody.(2)

Although the trial court originally concluded the children should remain together, the court's award of physical custody of both children to Father was conditional.(3) The court expressed concern over Father's "manipulation of the children during the custody battle," and awarded physical custody conditional upon visitation, counseling, and Father not damaging the mother-child relationship. In its findings from the contempt proceeding, the trial court explained, in detail, Father's failure to comply with terms of visitation and continued negative influence on the mother-child relationship. These findings adequately explain the trial court's change of position and are "sufficiently detailed 'to ensure that the trial court's discretionary determination was rationally based.'" Sukin v. Sukin, 842 P.2d 922, 924 (Utah Ct. App. 1992) (quoting Martinez v. Martinez, 728 P.2d 994, 994 (Utah 1986)).

Father next asserts the trial court did not comply with Utah Code Ann. § 30-3-10 (1998) in making its final custody award.(4) In its findings in the divorce decree awarding conditional custody, the trial court indicated concern for the effect of Father's "manipulative conduct" on the mother-child relationship under at least five "best interests of the child" factors. See, e.g., Linam v. King, 804 P.2d 1235, 1239 (Utah Ct. App. 1991) (listing factors trial courts should consider in determining "the best interests of the child," pursuant to Utah Code Ann. § 30-3-10). When making its final split custody order, the court provided detailed findings describing Father's continued damage to the mother-child relationship. The court also indicated Father's failure to comply with terms of visitation. Thus, the trial court did not abuse its "broad discretion" in making its custody award. Sukin, 842 P.2d at 923.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. Father also appeals the trial court's denial of his request for additional time to conduct discovery prior to the hearing on Petitioner's Second Order to Show Cause In Re Contempt. "[T]he trial court is granted broad latitude in handling discovery matters," R & R Energies v. Mother Earth Indus., 936 P.2d 1068, 1079 (Utah 1997), and we conclude the court did not exceed its discretion in its denial. The court knew all relevant facts from the hearing and Father had over two weeks from the time of denial to prepare for the hearing. Even if the trial court erred in its denial, Father's brief does not demonstrate a "'reasonable likelihood [such an] error affected the outcome of the proceedings.'" Crookston v. Fire Ins. Exch., 817 P.2d 789, 796 (Utah 1991) (citations omitted).

2. Father does not challenge the trial court's authority to modify custody in a contempt proceeding.

3. Father does not challenge the trial court's authority to issue a conditional custody order after a full divorce hearing.

4. Father also argues the trial court failed to adequately consider the factors set forth in Rule 4-903 of the Utah Code of Judicial Administration. However, rule 4-903 applies to custody evaluations submitted to court by independent evaluators, see Utah Code Jud. Admin. R4-903; Linam v. King, 804 P.2d 1235, 1239 (Utah Ct. App. 1991), which is not at issue here.