Snyder v. Snyder

2015 UT App 245
T HE U TAH COURT OF A PPEALS
A SHLEY S NYDER ,
Appellee,
v.
JOHN WESLEY S NYDER ,
Appellant.
Memorandum Decision
No. 20140084-CA
Filed September 24, 2015
Eighth District Court, Vernal Department
The Honorable Edwin T. Peterson
No. 074800224
Marsha M. Lang, Attorney for Appellant
Michael D. Harrington, Attorney for Appellee
JUDGE M ICHELE M. C HRISTIANSEN authored this Memorandum
Decision, in which J UDGES J AMES Z. DAVIS and JOHN A. PEARCE
concurred.
CHRISTIANSEN, Judge:
¶1 	John Wesley Snyder (Father) appeals the district court’s
denial of his petition to modify the divorce decree’s orders on
custody and parent-time. We vacate the district court’s order
and remand for further proceedings in accordance with this
decision.
¶2 	Ashley Snyder (Mother) filed a petition for divorce in July
2007, seeking alimony, joint legal custody, and primary physical
custody of the parties’ two minor children. In his answer, Father
opposed Mother’s requests regarding custody of the children.
¶3 	The parties participated in mediation and reached a full
settlement in the case. On September 12, 2008, the parties agreed

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to joint legal custody of the children with sole physical custody
awarded to Mother, subject to Father’s “reasonable and liberal
visitation schedule.” The district court entered a final decree of
divorce in October 2008 consistent with the parties’ agreement
for 	joint 	legal 	custody 	“with 	[Mother] 	being 	awarded 	the
physical custody of the children.”
¶4 	Between 2009 and 2012, the parties filed several orders to
show cause and petitions to modify the divorce decree regarding
child support, parent-time, reimbursement for the children’s
medical costs, and alimony. On August 17, 2012, Mother filed
another petition to modify the divorce decree, requesting an
increase in child support. On September 11, 2012, Father filed a
counter-petition, 	seeking 	modification 	of 	the 	parent-time
schedule. The district court scheduled a hearing on the petitions
and recommended that the parties attempt to resolve the matter
through mediation. Mediation was unsuccessful, and the parties
prepared for trial. Mother requested the court hold a pretrial
hearing to narrow the issues for trial.
¶5 	On June 25, 2013, the parties appeared for the pretrial
hearing. At that hearing, Father’s counsel indicated that she
would like to conduct additional discovery and obtain a custody
evaluation. In response, Mother’s counsel stated that custody
was “not at issue before the Court” because “there [was] no
pending petition regarding custody” and “the only thing that’s
before the Court is a petition to establish child support.” The
district court agreed with Mother’s counsel and told Father’s
counsel that if Father “is wanting to modify custody, then there
would have to be a petition to that nature” and the court “[did]
not want to open any issues that are not before the Court, if that
needs to be done, it needs to be done in separate petitions.” The
district court also stated its intention of moving forward on
Mother’s petition to modify child support “because it’s been
filed forever.” Father’s counsel agreed, and the district court set
a trial date to resolve the pending child-support petition.

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¶6 	The child-support issue was ultimately resubmitted to
mediation. At mediation, the parties came to an agreement
regarding child 	support and filed 	a 	signed stipulation (the
Stipulation). 	While 	the 	Stipulation 	purported 	to 	“resolve
all matters between the parties that are currently before the
Court,” 	the 	Stipulation 	only 	addressed 	the 	issue 	of 	child
support. On August 13, 2013, the district court entered an order
increasing Father’s monthly child-support payments based on
the Stipulation.
¶7 	On October 10, 2013, Father filed an amended petition to
modify the divorce decree, alleging “substantial 	changes in
circumstances 	since 	2010 	in 	parenting 	that 	affect 	the 	best
interests of the Children.” Father’s amended petition raised
claims of “physical abuse, emotional maltreatment, parent-time
discord, and deliberate interference with [Father’s] relationship
with the Children.” Based on these allegations and his claim of
substantial changes in circumstances since entry of the original
divorce decree, Father requested a custody evaluation and that
he be awarded joint physical custody of the children. Father also
moved for additional orders, including the appointment of a
custody evaluator, mutual restraining orders, and the adoption
of a parenting plan. Mother opposed Father’s petition to modify,
claiming that Father had failed to state a claim for which relief
could be granted because “the Stipulation . . . resolved all issues
between the parties.”
¶8 	At a hearing on Father’s amended petition to modify, the
district court denied Father’s petition to modify due to the
Stipulation and the court’s order modifying the decree that had
been 	entered 	two 	months 	earlier. 	The 	district 	court 	asked
Father’s 	counsel, 	“[I]s 	it 	your 	position 	that 	the 	conditions
changed substantially in the matter of less than two months?”
Father’s counsel stated that the court had directed the parties to
file separate petitions to modify if they desired to change the
visitation schedule, and that counsel had informed the court at
the 	pretrial 	hearing 	that 	Father 	intended 	to 	amend 	his

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modification petition to include the issue of custody. The court
responded, “There is an order in place in this matter, [an]
order . . . modifying the decree. It contains the stipulation of the
parties, it’s approved as to form as to yourself, and it really
clearly states, in paragraph seven, the stipulation shall resolve all
matters between the parties that are currently before the Court.
That would be all matters that are currently before the Court.”
The district court then dismissed Father’s petition to modify
“because you can’t come in less than two months later and try to
reopen 	something 	that 	you’ve 	gone 	through 	a 	good 	faith
stipulation in, and the parties have stipulated to.” Several weeks
later, the district court entered its written order dismissing
Father’s amended petition to modify the divorce decree with
prejudice. Father appeals.
¶9 	Father challenges the district court’s denial of his petition
to 	modify 	the 	divorce 	decree. 	We 	“generally 	review[] 	the
determination 	to 	modify 	a 	divorce 	decree 	for 	an 	abuse 	of
discretion.” Sill v. Sill, 2007 UT App 173, ¶ 8, 164 P.3d 415
(citation and internal quotation marks omitted). However, to the
extent “that determination is based on a conclusion of law, we
review it for correctness.” Id. (citation and internal quotation
marks omitted).
¶10 	Utah Code section 30-3-5(3) provides that “[t]he [district]
court has continuing jurisdiction to make subsequent changes or
new orders for the custody of the children and their support.”
Utah 	Code 	Ann. 	§ 	30-3-5(3) 	(LexisNexis 	2007). 	Although
principles of res judicata “generally preclude reconsideration of
issues that have been previously judicially determined,” equity
allows a court “‘to reopen determinations if the moving party
can demonstrate a substantial change in 	circumstances’ not
contemplated by the decree itself.” Kielkowski v. Kielkowski, 2015
UT App 59, ¶ 21, 346 P.3d 690 (quoting Smith v. Smith, 793 P.2d
407, 410 (Utah Ct. App. 1990)). A court may modify an order
establishing custody if “the circumstances of the child or one or
both custodians have materially and substantially changed since

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the entry of the order to be modified[,] and a modification of the
terms and conditions of the order would be an improvement for
and in the best interest[s] of the child.” Utah Code Ann. § 30-3-
10.4(1) (LexisNexis 2007) (emphasis added). When determining
whether there has been a substantial change in circumstances,
the district court will consider the “nature and materiality of any
changes in those circumstances upon which the earlier award of
custody was based.” Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982)
(emphasis added).
¶11 	Here, the original 2008 custody agreement underlying the
parties’ divorce decree provided for joint legal custody with sole
physical custody awarded to Mother. The district court entered
the divorce decree in accordance with the parties’ agreement
without making an independent judicial determination that the
agreed-upon custody arrangement was in 	the best interests
of the children. The issue of custody was raised before the
district court only when Father’s amended petition requested
modification to the divorce decree’s award of physical custody
to Mother. Though the Stipulation in August 2013 purported to
“resolve all matters between the parties that [were] currently
before the Court,” the matter of physical custody was not
addressed 	by 	the 	Stipulation. 	The 	only 	order 	that 	actually
addressed custody, and which order Father sought to modify,
was the original divorce decree entered in October 2008. Because
the Stipulation did not address custody, the district court erred
by dismissing Father’s amended petition and requiring Father to
show that “conditions [had] changed substantially in the matter
of less than two months.” We therefore conclude that the district
court erred by failing to determine whether circumstances had
substantially changed since 2008.1
1. We note that “an unadjudicated custody decree is not based
on an objective, impartial determination of the best interests of
the child” and that “[w]hen a child’s custody is determined
(continued…)

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¶12 	Accordingly, 	we 	vacate 	the 	district 	court’s 	order
dismissing Father’s petition to modify the divorce decree and
remand for further proceedings consistent with this decision.
(…continued)
by stipulation or default, the custody determination may in fact
be at odds with the best interests of the child.” Elmer v. Elmer,
776 	P.2d 	599, 	603 	(Utah 	1989). 	Accordingly, 	“the 	changed-
circumstances rule should not be rigidly applied when custody
was based on an unadjudicated decree.” Id.; see id. at 604–05
(noting that “a number of courts have held that the changed-
circumstances rule does not apply when custody is [originally]
determined by stipulation or default”).