Citton v. Warnick

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MEMORANDUM DECISION
(Not For Official Publication)

Mark Citton,
Plaintiff and Appellant,

v.
Gina M. Warnick,
formerly known as Gina W. Citton,
Defendant and Appellee.

Case No. 971154-CA

F I L E D
October 16, 1998
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Third District, Salt Lake Department
The Honorable David S. Young

Attorneys:
James C. Haskins, Salt Lake City, for Appellant
Gina M. Warnick, Salt Lake City, Appellee Pro Se -----

Before Judges Wilkins, Bench, and Orme.

BENCH, Judge:

It is well established that the party seeking modification of custody, "must first establish that there has been a substantial change of circumstances occurring subsequent to the divorce, and then show that the change of custody is in the best interests of the child." Walton v. Walton, 814 P.2d 619, 621 (Utah Ct. App. 1991) (citing Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982); Becker v. Becker, 694 P.2d 608 (Utah 1984)). The supreme court later modified the Hogge-Becker rule, holding that "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). "Moreover, a trial court's decision to merge the best interests of the child into the changed circumstances test is particularly justified when 'the initial custody award is premised on a temporary condition, a choice between marginal custody arrangements, a default decree, or similar exceptional criteria.'" Walton, 814 P.2d at 621 (quoting Maughan v. Maughan, 770 P.2d 156, 160 (Utah Ct. App. 1989)) (emphasis added). Furthermore, "[w]e will not disturb the trial court's decision as

to modification of a divorce decree absent an abuse of discretion." Hagen v. Hagen, 810 P.2d 478, 481 (Utah Ct. App. 1991).

In this case, because the original custody award was made under a default divorce decree, the trial court properly considered evidence regarding the children's best interests. The trial court gave "stability and continuity the weight that is appropriate in light of the duration of the existing custodial relationship and the general welfare of the child[ren]." Elmer, 776 P.2d at 605. After considering all the evidence, the court found "that the children seem to be thriving in a stable environment with their mother," and therefore denied plaintiff's petition because any alleged change in circumstances did not affect the custodial relationship. See Becker, 694 P.2d at 610; see also Elmer, 776 P.2d at 604 ("[A] lengthy custody arrangement in which a child has thrived ought rarely, if at all, to be disturbed, and then only if the circumstances are compelling."). Ample evidence in the record supports the trial court's findings. Furthermore, the findings adequately detail the process the court used to reach its conclusion. We therefore find no abuse of discretion in the denial of plaintiff's petition to modify custody.

Plaintiff also argues that the trial court's comments from the bench during closing argument showed bias against him. The comments may well have been inappropriate. Our review of the record, however, indicates that the court's comments were simply gratuitous, speculative statements and do not rise to the level of suggesting bias. The court clearly based its decision on the evidence presented, focusing on the children's stability and the fact that they are thriving in the existing custodial arrangement.

We therefore affirm the trial court's decision.
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 

______________________________
Michael J. Wilkins,
Associate Presiding Judge
 
 

______________________________
Gregory K. Orme, Judge