Patton v. Patton

Patton v. Patton

IN THE UTAH COURT OF APPEALS

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Shelle Sherece Scott Patton,
Petitioner and Appellee,

v.

Mark Kenneth Patton,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20000873-CA
 

F I L E D
(June 5, 2003)
 

2003 UT App 184

 

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Fifth District, St. George Department

The Honorable G. Rand Beacham

Attorneys: G. Michael Westfall, St. George, for Appellant

Jonathan O. Hafen, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Orme.

DAVIS, Judge:

First, Appellant argues that the trial court did not have authority to restrict visitation with his children until the youngest child turned sixteen. Appellant claims the trial court "restrict[ed] its own opportunity to modify that order or restrict[ed] a party's opportunity to seek modification of that [o]rder by prohibiting any change until a specified date." Utah Code Ann. § 30-3-5(3) (Supp. 2002) grants a trial court continuing jurisdiction "to make subsequent changes or new orders for the custody of the children and their support, maintenance, health, and dental care." A trial court may modify a visitation order if there is a material change in circumstances and a change would be in the best interests of the children. See Becker v. Becker, 694 P.2d 608, 611 (Utah 1984). Here, the trial court did not act outside of its authority. The order does not purport to forbid the trial court from modifying the order if it finds there is a material change in circumstances and modification would serve the best interests of the children. Instead, it defines the parameters of visitation unless and until there is a material change in circumstances.

Second, Appellant argues the trial court erred by ordering restricted visitation with his son. Appellant claims the trial court abused its discretion because there was no evidence presented at the hearing to show his son was at risk. On appeal, "we accord the trial court broad discretion" in the decision to order restricted visitation. Peterson v. Peterson, 818 P.2d 1305, 1308 (Utah Ct. App. 1991). "'So long as that discretion is exercised within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.'" Id. (citation omitted). "As to the confines of the legal standards set for visitation orders, those orders 'must be based on the child's best interests. Courts must give priority to the welfare of the children over the desires of either parent in determining visitation rights.'" Id. (citations omitted). "Restrictions placed upon visitation must be based upon 'all relevant evidence as to the children's present and future well-being.'" Id. (citation omitted). "The findings must detail any special or unusual circumstances justifying restricted visitation." Id.

Here, in concluding Appellant's visitation with his son should be restricted, the trial court adopted the supervision plan proposed by Dr. Roby. The court selected this plan because it had

great concerns about the safety of the children if [Appellant] were permitted to have unsupervised visitation . . . . Supervision of [Appellant's] visitation does not harm the children. Supervision protects the children from potentially irreparable harm. Supervision also permits the children to enjoy their visits with [Appellant] without worrying about acting as supervisors themselves and being required to report any wrongdoing he may commit.

The trial court supported this conclusion with detailed findings that: (1) Appellant sexually molested Appellee's sister (S.S.) four times while S.S. was between the ages of eleven and thirteen; (2) Appellant admitted masturbating many times while being aroused by thoughts of S.S.; (3) Appellant had "an inappropriate interest" in another young girl; (4) during an unsupervised visit with the children, Appellant watched a movie containing "inappropriate material of a sexual nature" while the children were in the room; (5) Appellant inappropriately asked one of the children whether she had "started [her] period yet"; (6) during a visit, Appellant held one of the children on his lap "on numerous occasions," even though Appellee, the supervisor, said it was inappropriate; (7) Dr. Roby and Dr. Hoberman diagnosed Appellant as a pedophile and Mr. Hillyard diagnosed him as having "pedophilic interests"; (8) Appellant's test results show he is a risk to reoffend and Appellant admitted he is a risk to reoffend; (9) Appellant attempted to manipulate several tests; (10) Appellant exhibited a lack of candor with the court and the doctors; (11) Dr. Roby, Dr. Cox, Dr. Gray, Dr. Gully, and Dr. Hoberman testified Appellant had narcissistic tendencies; and (12) Appellant's two daughters wanted supervised visits and his son was indifferent to supervised visits.

Thus, the trial court did not err in ordering restricted visitation with Appellant's son because "the visitation order was fully supported by detailed findings which reflected the legal standards set forth by this state's appellate courts," and "the court adequately detailed the special and unusual circumstances" leading to its order for supervised group visitation. Id. at 1309.

Third, Appellant argues the trial court erred by ordering him to pay attorney fees incurred while litigating his visitation rights. Appellant claims his agreement in the stipulation to "pay any and all attorney fees incurred in this matter" did not apply to visitation because visitation was struck from the stipulation. We agree. "An award of attorney fees in divorce actions rests within the sound discretion of the trial court, which we will not disturb absent an abuse of discretion." Wells v. Wells, 871 P.2d 1036, 1038 (Utah Ct. App. 1994).

"Generally, attorney fees may be recovered in Utah if provided for by statute or contract." Maughan v. Maughan, 770 P.2d 156, 161 (Utah Ct. App. 1989). In this case, both a statute and a contract apply. By stipulation, Appellant agreed to "pay any and all attorney fees incurred in this matter." Any attorney fees incurred in this case that are not covered by the stipulation are subject to Utah Code Ann. § 30-3-3 (Supp. 2002). See Rehn v. Rehn, 1999 UT App 41,¶22, 974 P.2d 306 ("A trial court has the power to award attorney fees in divorce proceedings pursuant to [section 30-3-3].").

"Because [a] stipulation will be construed like other contracts," the "parties' intentions must be determined solely from the language of the [stipulation]" unless the language of the stipulation is ambiguous. Yeargin, Inc. v. Auditing Div. of the Utah State Tax Comm'n, 2001 UT 11,¶39, 20 P.3d 287 (first alteration in original) (quotations and citations omitted). "'When determining whether [the stipulation] is ambiguous, any relevant evidence must be considered.'" Id. (citation omitted).

In this case, the language of the stipulation is unambiguous. The "matter" to which Appellant stipulated to pay attorney fees is the stipulation alone. To hold otherwise would subject Appellant to potentially endless attorney fee obligations. See Utah Code Ann. § 30-3-5(3) ("The [trial] court has continuing jurisdiction to make subsequent changes or new orders for the custody of the children and their support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary."). Accordingly, Appellant, by stipulation, is responsible for all attorney fees incurred in implementing the stipulation, meaning all attorney fees incurred in reference to the stipulation prior to the trial court's August 15, 1996 order. However, Appellant is not, by stipulation, responsible for attorney fees incurred in modification of the stipulation. Therefore, all attorney fees incurred by Appellee's attempt to modify Appellant's visitation rights, namely all attorney fees incurred after the August 15, 1996 order, are not included in the attorney fee stipulation.

We affirm the trial court's decision to restrict Appellant's visitation until the youngest child turns sixteen and to order restricted visitation with Appellant's son. However, we reverse the trial court's award of attorney fees incurred by Appellee's attempts to modify the stipulation after the August 15, 1996 order and remand for proceedings consistent with this decision.

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James Z. Davis, Judge

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I CONCUR:

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Pamela T. Greenwood, Judge

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ORME, Judge (dissenting in part):

The majority's disposition concerning attorney fees seems equitable in a broad sense, but it is not rooted in a simple reading of the parties' stipulation. If the parties meant to cover only fees incurred in connection with the stipulation, or only up to the time when the stipulation was entered, I presume they would have said so.

Of course, the attorney fee provision was not tied to the stipulation, but rather spoke in terms of the fees incurred in "this matter." "Matter" is often used as a synonym for lawsuit, and indeed, in this case the parties opened their stipulation with this phrase: "The parties in the above matter . . . ." All that appears "above" is the caption for this lawsuit. So a few paragraphs later when the parties refer to "this matter," it must be that they were referring to the same thing, i.e., the "above matter," i.e., the lawsuit captioned "Patton vs. Patton." I cannot join my colleagues in equating "matter" and "stipulation" when the stipulation, by its express language, defines "matter" to mean something else.

Thus, while it may seem in retrospect that Appellant made an unwise bargain, the bargain he made was to pay all fees incurred in the matter captioned "Patton vs. Patton." Accordingly, while I otherwise concur in the court's decision, I would not reverse the award of attorney fees in this case.

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Gregory K. Orme, Judge