Ross v. Ross

2019 UT App 104
THE UTAH COURT OF APPEALS
JESSECA R AE R OSS,
Appellee,
v.
TIMOTHY R ONALD R OSS ,
Appellant.
Opinion
No. 20170916-CA
Filed June 13, 2019
Third District Court, Salt Lake Department
The Honorable Su Chon
No. 154901171
Bastiaan K. Coebergh, Attorney for Appellant
Kyle Adams, Attorney for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and DIANA H AGEN concurred.
HARRIS, Judge:
¶1 	When 	they 	divorced, 	Jesseca 	Rae 	Ross 	(Mother) 	and
Timothy Ronald Ross (Father) agreed to an arrangement under
which they equally shared physical custody of their two minor
children (the Children). After a time, Mother expressed a desire
to relocate from Salt Lake County to Uintah County, and she
wanted to take the Children with her. To effectuate this change,
she filed a notice of relocation with the district court pursuant to
Utah Code section 30-3-37, but did not file a separate petition to
modify the joint custody provisions of the divorce decree. Father
protested 	that 	no 	change 	in 	custody 	could 	be 	ordered 	in
Mother’s favor in the absence of a petition to modify, but the
district 	court 	disagreed. 	After 	holding 	a 	hearing, 	the 	court
allowed Mother to relocate with the Children, and changed
custody to make Mother the primary physical custodian. Father

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now appeals from that decision, asserting that the district court
improperly 	ordered 	a 	change 	in 	custody 	without 	requiring
Mother to file a petition to modify. We agree with Father’s
argument, and therefore reverse the court’s order and remand
the case for further proceedings consistent with this opinion.
BACKGROUND
¶2 	After 	seven 	years 	of 	marriage, 	Mother 	and 	Father
divorced, and stipulated to a decree that provided for joint legal
custody and equally-shared physical custody of the Children.
Less than a year after the decree was entered, Mother filed a
notice 	of 	relocation, 	setting 	forth 	her 	intent, 	“due 	to 	her
impending marriage,” to relocate to Lapoint, a small farming
community in Uintah County, Utah. The notice also stated
Mother’s intent to take the Children with her, and her belief that
such a move was in the best interest of the Children, since she
“provided the majority [of] care” for them. Mother did not
separately file a petition to modify asking the court to change the
custody provisions of the decree.
¶3 	Father objected to Mother’s notice to relocate, arguing
that the relocation would require the Children to leave their
current school district, where they were “well adjusted and
happy,” that he and Mother had equal custody of the Children
according to the stipulated decree, and that the move would
interfere with his access to, and parent-time with, the Children.
¶4 	A 	hearing 	was 	held 	before 	a 	domestic 	relations
commissioner, 	who 	heard 	argument 	from 	both 	sides 	and
apparently considered the matter a close call. He lamented the
fact that no petition to modify had been filed, stating that
although he did not want to “put the parties through a . . . more
expensive elaborate process than necessary,” he viewed this case
as one “that just begs for having someone file a petition to
modify to address this relocation,” and stated that he was not
“comfortable that [he knew] the right answer” in the absence of

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the more formal process a petition to modify would provide. He
also noted that the filing of a petition might have caused the
parties and the court to “consider whether some kind of custody
evaluation or mediation-based custody evaluation . . . might be
useful 	in 	. 	. 	. 	coming 	up 	with 	the 	best 	solution.” 	At 	the
conclusion of the hearing, and in the absence of a petition to
modify 	or 	a 	custody 	evaluation, 	the 	commissioner
recommended that Mother not be permitted to relocate the
Children out of Salt Lake County on a permanent basis, but that
the Children could go to Lapoint with Mother for the summer,
during 	which 	time 	Father 	would 	have 	parent-time 	for 	one
weekend each month.
¶5 	Mother objected to the commissioner’s recommendation,
and asked the district court to issue an order allowing the
Children to relocate with her permanently. Father opposed that
request, and the court held a two-day evidentiary hearing on the
matter. At the close of Mother’s evidence, Father moved for a
directed verdict, specifically raising the issue flagged by the
commissioner, namely, that Mother had not filed a petition to
modify and therefore was not entitled to a change in custody.
The court denied the motion for a directed verdict, and at the
conclusion of the hearing took the matter under advisement.
¶6 	A few weeks later, the district court issued a written
decision on Mother’s objection. Therein, the court noted that,
“[o]rdinarily, a petition to modify is required to change the
custody 	arrangements” 	at 	issue, 	and 	acknowledged 	that
granting Mother’s relocation would alter the current physical
custody arrangement. However, the court explained that the
arrangement 	would 	change 	“regardless” 	because 	the
commissioner’s recommendation effectively awarded custody to
Father, and determined “that no petition to modify is required
with a notice of relocation.” The court then proceeded to apply a
“best 	interest” 	analysis 	with 	regard 	to 	the 	relocation, 	and
concluded that relocation would be in the best interest of the
Children. Accordingly, the court overruled the commissioner’s
recommendation, allowed Mother to relocate to Lapoint with the

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Children, and ordered a change of custody making Mother the
primary physical custodian and awarded Father parent-time
pursuant to the relocation statute.
¶7 	Thereafter, Father filed a motion for a new trial and a
motion to amend findings based on allegedly newly discovered
evidence, insufficiency of the evidence, and the verdict being
contrary to law. The court denied Father’s motions, finding that
the allegedly new evidence was available before the evidentiary
hearing, that the evidence presented at trial had been sufficient,
and 	that 	its 	ruling 	complied 	with 	the 	requirements 	of 	the
relevant statutes.
ISSUE AND STANDARD OF REVIEW
¶8 	Father now appeals both the district court’s original order
allowing the relocation and changing custody, as well as the
court’s subsequent order denying his motions for a new trial and
to amend findings. Father asks us to consider three issues, but
because of our resolution of the first, we need not consider the
other 	two.1 Father’s 	first 	argument 	raises 	the 	issue 	of 	the
propriety of ordering a change in custody in favor of a relocating
parent in the absence of a petition to modify. That question
involves 	the 	interpretation 	of 	various 	statutes 	and 	one
procedural rule. “The applicability of a particular rule or statute
1. Father’s other two arguments are: (1) that the district court’s
relocation decision, on its merits, was against the clear weight of
the 	evidence 	presented 	and/or 	supported 	by 	insufficient
evidence; 	and 	(2) 	that 	the 	court 	ignored 	newly 	discovered
relevant evidence when it denied his motion for a new trial. In
light of our determination that a change in custody in Mother’s
favor was not permitted in the absence of a petition to modify,
and our resolution vacating the district court’s custody order
and remanding for further proceedings, we need not reach the
merits of Father’s additional arguments.

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is a question of law reviewed for correctness.” Gullickson v.
Gullickson, 2013 UT App 83, ¶ 16, 301 P.3d 1011. “A [district]
court’s interpretation of a statute is a question of law that we
review for correctness.” Donnelly v. Donnelly, 2013 UT App 84,
¶ 11, 301 P.3d 6 (quotation simplified). And a “district court’s
interpretations 	of 	rules 	of 	procedure 	are 	questions 	of 	law
reviewed for correctness.” Simler v. Chilel, 2016 UT 23, ¶ 9, 379
P.3d 1195 (quotation simplified).
ANALYSIS
¶9 	In this case, we must consider whether, under applicable
statutes and rules, a district court may order a change in custody
in favor of a relocating parent in the absence of a petition to
modify. Father asserts that a district court is not authorized to
take 	such 	action 	and, 	after 	examination 	of 	the 	relevant
provisions, we agree.
¶10 	Our procedures for interpreting statutes and rules are the
same: “[W]e do so according to our general rules of statutory
construction.” Arbogast Family Trust v. River Crossings, LLC, 2010
UT 40, ¶ 18, 238 P.3d 1035. We interpret the relevant provisions
according to their plain language, “seek[ing] to give effect to the
intent of the body” that enacted the statute or promulgated the
rule, Burns v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370, and we read
the language “in light of its linguistic, structural, and statutory
context,” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d
465.
¶11 	Here, we start our analysis with two provisions that
generally 	require 	the 	filing 	of 	a 	petition 	to 	modify 	before
allowing changes to divorce decrees. First, rule 106(a) of the
Utah Rules of Civil Procedure states generally that, “[e]xcept as
provided in Utah Code Section 30-3-37, proceedings to modify a
divorce decree or other final domestic relations order shall be
commenced by filing a petition to modify.” Second, Utah Code
section 30-3-10.4(1) states specifically that, “[o]n the petition of

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one or both of the parents, . . . the court may, after a hearing,
modify or terminate an order that established joint legal or
physical custody” if certain conditions are met. Utah Code Ann.
§ 30-3-10.4(1) (LexisNexis Supp. 2018). Thus, rule 106 establishes
a general rule—subject to an important exception, discussed
below—that any changes to divorce decrees must be brought
about by the filing of a petition to modify, and section 10.4
makes clear that this rule applies specifically in the context of
modifying decrees that provide for joint custody.
¶12 	Mother points out, however, that the exception set forth
in rule 106 expressly references the relocation statute, and allows
a district court to alter custody orders in the relocation context
even in the absence of a petition to modify.2 See Utah R. Civ. P.
106(a) (stating that, “[e]xcept as provided in” the relocation
statute, 	modifications 	require 	a 	petition). 	We 	acknowledge
Mother’s point that rule 106 refers to the relocation statute and
allows exceptions to the petition requirement in relocation cases,
at 	least 	to 	the 	extent 	that 	the 	relocation 	statute 	permits
modification. But we do not read rule 106 as providing a blanket
exception for all modifications that might be sought in the
relocation context.
¶13 	The language “[e]xcept as provided” signals a limited
exception to the petition requirement. See id. To be sure, the
drafters of the rules could have stated that petitions to modify
are required “except in cases in which relocation is sought.”
2. Section 10.4 contains no such exception, and it could be
argued that section 10.4 eclipses rule 106’s relocation exception
in instances where a relocating party seeks to alter a joint
custody 	order. 	We 	do 	not 	address 	this 	argument 	further,
however, 	because 	Father 	does 	not 	expressly 	make 	it, 	and
because—as we explain herein—even if section 10.4 is somehow
construed (like rule 106) to contain such 	exceptions as are
permitted by the relocation statute, those exceptions do not
benefit Mother here.

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Such language would have made clear that, in relocation cases, a
court could modify divorce decrees in any manner, even without
a petition to modify. But the drafters did not use such language;
instead, 	they 	included 	a 	simple 	reference 	to 	the 	relocation
statute, signaling an intent to incorporate into rule 106 whatever
exceptions 	that 	statute 	allows. 	Indeed, 	at 	oral 	argument,
Mother’s counsel acknowledged that, even in the relocation
context, a party seeking to modify alimony or child support
would need to file a petition to modify, since the relocation
statute makes no mention of alimony or child support. Thus, a
court may not simply ignore rule 106’s petition requirement any
time section 30-3-37 is invoked; rather, a court may modify a
decree without a petition only in instances in which section 30-3-
37 allows such modification.
¶14 	And section 30-3-37 contemplates modification of divorce
decrees 	in 	only 	three 	particular 	instances: 	(a) 	it 	allows
modification 	of 	parent-time 	arrangements 	in 	cases 	where 	a
custodial parent is allowed to relocate with a child, see Utah
Code Ann. § 30-3-37(5)–(11) 	(LexisNexis 	Supp. 2018); (b) 	it
allows assessment of transportation costs, see id. § 30-3-37(12);
and (c) it allows modification of custody—but only in favor of
the non-relocating party—in cases in which the court decides not
to allow the children to relocate with the relocating party, see id.
§ 30-3-37(4). Only subsection (4) addresses a change of custody
(as opposed to parent-time),3 providing:
3. Custody and parent-time are conceptually distinct. See Jones v.
Jones, 2016 UT App 94, ¶ 10, 374 P.3d 45 (stating that, “while
altering 	custody 	orders 	generally 	requires 	a 	showing 	of
substantial change in circumstances material to the modification
of custody, a lesser showing may be required when the change
sought is not a change of custody,” and holding that “there was
no error in the district court’s failure to require a substantial or
material change of circumstances” when modifying parent-time
(quotation simplified)); see also Erickson v. Erickson, 2018 UT App
(continued…)

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In a hearing to review the notice of relocation, the
court shall, in determining if the relocation of a
custodial parent is in the best interest of the child,
consider any other factors that the court considers
relevant to the determination. If the court determines
that relocation is not in the best interest of the child, and
the custodial parent relocates, the court may order a
change of custody.
Id. (emphasis added).
¶15 	The relocation statute thus authorizes a change of custody
only if two events occur: (1) the court “determines that relocation
is 	not 	in 	the 	best 	interest 	of 	the 	child,” 	thus denying 	the
relocating parent’s request for the children to relocate; and
(2) the custodial parent decides to relocate—alone—in spite of
the court’s ruling. Id.; see also Pingree v. Pingree, 2015 UT App 302,
¶¶ 12–13, 365 P.3d 713 (noting that, “if a court determines that
relocation is not in a child’s best interest, it then has authority to
order a change in custody if a custodial parent chooses to
relocate,” and that “a conditional change of custody ordered
under section 30-3-37(4) is triggered only if . . . a custodial parent
elects to relocate despite a court’s finding that relocation would
not be in the child’s best interest”). Only then is the court
authorized to order a change of custody under section 30-3-37.
The relocation statute does not contemplate changes in custody
(as opposed to parent-time) outside that context, and therefore if
a change in custody is sought in a different context, rule 106 (as
well as, in some cases, section 30-3-10.4) requires the filing of a
petition to modify.
(…continued)
184, ¶ 16, 437 P.3d 370 (“A material change of circumstances
with respect to parent-time is thus a different inquiry from
whether there was a material change with respect to custody.”
(quotation simplified)).

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¶16 	Thus, we read rule 106 and the relocation statute together
to require that a petition to modify be filed in all cases in which a
grant of the relocation request will necessitate a change in
custody in favor of the relocating party. In a situation in which a
parent enjoys “sole” (as opposed to “joint”) physical custody,
and wishes to relocate with a child, no change in custody will be
required in the event the relocation request is granted. That
parent will have sole physical custody prior to the request, and
(if granted) that parent will have sole physical custody after the
relocation. 	In 	that 	situation, 	the 	court 	need 	only 	consider
appropriate modifications to the parties’ parent-time schedule.4
¶17 	The situation is different, however, where the parent who
seeks to relocate does not already have sole physical custody,
but wishes to attain sole physical custody upon relocation.5
4. Although the relocation statute does not expressly cover a
situation in which a noncustodial parent seeks leave to relocate,
see Utah Code Ann. § 30-3-37(4) (speaking only in terms of
“determining if the relocation of a custodial parent is in the best
interest of the child” (emphasis added)), for obvious reasons no
change in custody would be required if a noncustodial parent
relocates and does not seek a change in custody status associated
with that relocation. Whether a petition to modify would be
required in this context—given that the relocation statute does
not 	specifically 	speak 	to 	this 	situation, 	and 	that 	rule 	106’s
exception 	is limited 	to situations covered by the relocation
statute—to 	address 	requested 	changes 	to 	the 	parent-time
arrangement is a question we leave for another day.
5. According to statutory definition, “joint physical custody”
occurs when a “child stays with each parent overnight for more
than 	30% 	of 	the 	year, 	and 	both 	parents 	contribute 	to 	the
expenses of the child in addition to paying child support.” See
Utah Code Ann. § 30-3-10.1(3)(a). Thus, any parent who enjoys
less than 70% of overnights has something short of sole physical
(continued…)

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Because “relocation” is defined as “moving 150 miles or more
from the residence of the other parent,” see Utah Code Ann. § 30-
3-37(1), joint physical custody is very difficult to practicably
maintain in the wake of one parent’s relocation. These practical
realities mean that a parent who relocates with a child will
usually need to be awarded sole (as opposed to joint) physical
custody. And if that parent does not already enjoy sole physical
custody, that parent will need to seek a modification of the
existing custody arrangement in order to facilitate well-ordered
relocation, because rule 106 requires the filing of a petition for
any modification, and the relocation statute does not provide an
exception in that particular situation.
¶18 	In this case, Mother did not have sole physical custody
prior to seeking relocation. As noted above, the parties shared
physical custody equally. Moreover, Mother did not claim that
her situation presented one of the presumably rare situations in
which a joint custody arrangement could be continued even after
she moved more than 150 miles away from Father; that is, the
success of Mother’s relocation request—at least insofar as she
would be able to take the Children with her—depended upon
Mother being awarded sole physical custody. In this situation,
the relocation statute does not contemplate a change in custody
without a petition to modify, and therefore rule 106’s petition
requirement applies with full force.6
(…continued)
custody, and would almost certainly need to seek a change in the
custody arrangement in order to relocate with a child.
6. By contrast, the relocation statute (and rule 106’s exceptional
reference to it) would have allowed the district court to order a
change of custody in favor of Father, even without a petition to
modify, in the event that it had denied Mother’s relocation
request and Mother had decided to relocate anyway. See Utah
Code Ann. § 30-3-37(4); Utah R. Civ. P. 106(a).

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CONCLUSION
¶19 	Mother needed to file a petition to modify in order to
effectuate the change of custody in her favor that was, as a
practical 	matter, 	essential 	to 	her 	relocation 	request. 	The
relocation 	statute 	does 	not 	contemplate 	such 	a 	change 	of
custody, 	and 	therefore 	the 	exception 	to 	rule 	106’s 	petition
requirement does not cover this situation. Because Mother did
not file a petition to modify, the district court erred in ordering a
change of custody in favor of Mother without one. Accordingly,
we vacate the district court’s custody order and remand this case
for further proceedings consistent with this opinion.
¶20 	On remand, one of the parents (or both) will need to file a
petition to modify to address the custody situation. It will be up
to the district court, on remand, to determine whether the
Children will remain in Lapoint pending adjudication of the
petition(s) to modify. In making that determination, and in
ruling upon the merits of the petition(s) to modify, the court
should consider the present circumstances of the parties and the
Children and not simply re-litigate the issues as they were at the
time of the now-vacated custody order, bearing in mind its
duties to “ensure that a child’s best interests will be met before
transferring custody” and “to provide stability to children by
protecting them from ‘ping-pong’ custody awards.” Chaparro v.
Torero, 2018 UT App 181, ¶¶ 39–40, 436 P.3d 339 (quotation
simplified).