Pingree v. Pingree

2015 UT App 302

THE UTAH COURT OF APPEALS

JAMES C. PINGREE,
Appellee,
v.
RITA F. PINGREE,
Appellant.

Opinion
No. 20150227-CA
Filed December 21, 2015

Third District Court, Salt Lake Department
The Honorable Paul G. Maughan
No. 114905416

Steve S. Christensen, Attorney for Appellant
Thomas J. Burns and Joshua D. Chandler, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
MICHELE M. CHRISTIANSEN concurred. SENIOR JUDGE RUSSELL W.
BENCH concurred in the result. 1

ORME, Judge:

¶1 Rita F. Pingree (Mother) appeals the district court’s order
denying her request to relocate with the parties’ child (Child)
and ordering a conditional transfer of child custody. Because the
district court properly considered Child’s best interests, and
because the parties bargained in the underlying divorce
proceeding for an arrangement in which Mother would remain
in Utah, we affirm.

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
Pingree v. Pingree

BACKGROUND

¶2 Mother and James C. Pingree (Father) were married in
2004, and in 2008, Child was born. Father filed for divorce in
September 2011. In May 2012, while the divorce was still
pending, Mother graduated from medical school at the
University of Utah. Around that time, Mother sought a court
order that would allow her to relocate with Child to North
Carolina, where Mother hoped to begin a medical residency. A
court-appointed custody evaluator was still in the process of
completing her evaluation, so the evaluator submitted a letter to
the district court opposing Mother’s request to relocate. The
district court ultimately denied the request.

¶3 The custody evaluator eventually finished her report, in
which she recommended that the parties be awarded joint
legal and physical custody. After negotiations, Father and
Mother reached a settlement agreement incorporating this
recommendation, which the district court approved. The
settlement agreement also provided that Father would pay
Mother monthly alimony for five and a half years, which was
non-modifiable, “because [Mother] will [forgo] a residency in
radiology.” These provisions were all outlined in a divorce
decree entered on June 19, 2014.

¶4 The following month, Mother again requested that she be
allowed to relocate with Child, this time to Connecticut, for the
purpose of beginning a medical residency. She did so by filing a
petition to modify the parties’ divorce decree. This petition was
treated below as a motion to relocate and is the subject of the
instant appeal. Father opposed the motion, and the matter was
heard by a district court commissioner. The commissioner
recommended that Mother’s motion be denied because
relocation was not in Child’s best interest. Mother objected to the
commissioner’s recommendation, and the issue went before the
assigned district court judge.

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¶5 At a hearing on January 5, 2015, the district court heard
testimony from Mother, offered in support of the motion, and
received testimony and an updated custody evaluation report
from the custody evaluator, offered by Father. The district court
overruled Mother’s objection and adopted the commissioner’s
recommendation, denying the motion to relocate and instead
entering an order for a conditional change of custody. The order
stated that Mother was free to move out of state, but that if she
did, primary custody would shift to Father. Mother appeals,
arguing that the district court erred in its analysis of Child’s best
interests, by not allowing a full evidentiary hearing, by deferring
to the commissioner’s recommendation, by failing to make
findings of fact and conclusions of law, and by denying Mother
and Child their due process rights.

ISSUE AND STANDARDS OF REVIEW

¶6 Despite Mother’s focus on several alleged errors, we need
only decide whether the district court erred in determining that
relocation was not in Child’s best interest and by ordering a
conditional change in custody. We review the district court’s
interpretation of relevant statutes for correctness and its custody
determinations for an abuse of discretion. See Donnelly v.
Donnelly, 2013 UT App 84, ¶ 11, 301 P.3d 6; Grindstaff v.
Grindstaff, 2010 UT App 261, ¶ 3, 241 P.3d 365.

ANALYSIS

I. Child’s Best Interests

¶7 In all custody determinations, the district court’s
“primary focus must be on the best interests of the child.”
Schindler v. Schindler, 776 P.2d 84, 87 (Utah Ct. App. 1989). In this
case, the district court’s order could have been somewhat more
explicit and detailed in its evaluation of Child’s best interests.

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We conclude, however, that the district court fulfilled its
minimum obligations in determining the best interests of Child
and thus did not abuse its discretion in concluding that if Mother
insisted on relocating, a change in custody would be warranted.

A. Requirements of Section 30-3-37

¶8 We begin by considering the requirements of the
relocation statute. See Utah Code Ann. § 30-3-37 (LexisNexis
Supp. 2015).

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. § 30-3-37(4). Thus, the district court was required to first
determine whether relocating was in Child’s best interest. Then,
if the court determined that it was not, the court was permitted
to order a change of custody if Mother relocated. See id.

B. The District Court’s Best-Interest Analysis

¶9 The district court expressly found “that it is not in
[Child’s] best interest to relocate away from her father.” This
finding was supported, in part, with the following analysis:

I’m not going to disturb custody, a joint custody, a
joint physical [custody] because one parent wants
to leave and disrupt that, where the child has lived
in Salt Lake her whole life. She has family. She has
school. She has social contacts. She has continuity
here and I’m not going to do it for four years and

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then bring her back for four years, I’m not going to
do it under [section] 30-3-37.

¶10 Mother argues that this constitutes “inadequate analysis”
because “[t]he trial court focused on factors in [section] 30-3-
37(5), which relate to the parents and not the child, in making its
best interest determination.” We disagree with Mother’s
criticism of the court’s analysis, 2 and we note that these findings
were further supported by the commissioner’s analysis, given
that the district court expressly “f[ound] no error on the part of
the Commissioner and . . . adopt[ed] the reasoning set forth in
the Commissioner’s order.” As this court has previously
explained,

it is not erroneous for a district court to adopt a
commissioner’s findings rather than making its
own separate findings where its decision and
reasoning do not differ from that of the

2. Mother spends a substantial portion of her brief arguing that it
was error for the district court to consider the factors outlined in
section 30-3-37(5) in its determination of whether relocation was
in Child’s best interest. See Utah Code Ann. § 30-3-37(5)
(LexisNexis Supp. 2015). We agree that such a focus would have
been erroneous, because that subsection specifically drives a
court’s consideration of parent-time and transportation costs
“[i]f the court finds that the relocation is in the best interest of
the child.” See id. Here, however, the district court found that
relocation was not in Child’s best interest, so subsection (5) is
irrelevant. Mother’s argument on this point is unpersuasive in
any event, because our review of the record makes it abundantly
clear that the district court’s best-interest analysis was not
focused on subsection (5) factors and was, instead, properly
focused on factors relevant to Child’s current situation and the
impact that relocation would have on Child.

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commissioner. Where the district court does so, we
will simply evaluate the commissioner’s findings
as though they were made by the district court.

Veysey v. Veysey, 2014 UT App 264, ¶ 17 n.5, 339 P.3d 131.

¶11 The commissioner made her recommendation with
reference to rule “4-903 of the Utah Rules of Judicial
Administration,” which “outlines the provisions that custody
evaluators should use in determining what is appropriate or [in
the] best interest of a child.” The commissioner determined that

those provisions that are relevant here would be
the issue of the relative strength of the child’s bond
with one or both of the prospective custodians, the
general interest in continuing [a] previously
determined custody arrangement where the child
is happy and well-adjusted, the ability to provide
personal rather than surrogate care and any other
factors deemed important by the evaluator.

See Utah Code Jud. Admin. R. 4-903(5). One such “other factor”
deemed important by the evaluator was “[Mother]’s ability and
her willingness to co-parent with [Father].” As the evaluator
explained, Mother’s

behavior demonstrated that she did not fully
understand or accept the importance of that
relationship as evidenced by her insistence in
trying to limit [Father]’s parent time to the
minimum statutory schedule, by her refusal to give
[Father] the opportunity to care for [Child] when
[Mother] was not available including while she
was travelling out of town and by her ongoing
insistence on her right to physically separate
[Child] from [Father] for multiple years.

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The district court’s best-interest analysis focused on factors such
as the importance of continuity in Child’s family, school, and
social relationships; the relative strength of Child’s bond with
each parent; the interest in continuing the present custody
arrangement; and the ability of each parent to provide personal
rather than surrogate care. The court, through its adoption of the
commissioner’s analysis, also found persuasive Mother’s
inability to understand or accept the importance of Child’s
relationship with Father. Then, after considering all of these
factors, the district court determined that it was not in Child’s
best interest to relocate. We cannot see how this decision was in
error, given the court’s compliance with statutory requirements
and Mother’s failure to directly challenge any factual finding
made by the district court, including those findings made by the
commissioner and adopted by the court.

C. The Conditional Change of Custody

¶12 We next consider Mother’s argument that there was no
“compelling reason to change custody.” 3 Under section 30-3-
37(4), 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. See Utah Code Ann. § 30-3-
37(4) (LexisNexis Supp. 2015). Notably, the statute does not
require a separate analysis of whether such a change in custody
would be in the child’s best interest. Instead, such a conclusion is
implicit in the initial best-interests analysis: if it is not in Child’s

3. On its face, this argument is problematic. Mother’s relocation
to Connecticut, taking Child with her, would necessarily work a
change in the joint physical custody arrangement agreed to by
the parties and incorporated in the divorce decree. So the
question is not whether to change the existing shared custody
arrangement if Mother moves across the country but how to
change custody in that event.

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best interest to relocate, it is in her best interest to remain where
she currently lives. And if Mother opts to relocate, the only way
for Child to remain in Utah is with a change in custody.

¶13 After the district court concluded that relocating to
Connecticut was not in Child’s best interest, it went on to find
that if Mother elected to relocate, “a change in custody would be
required, with [Father] being awarded primary physical
custody.” Mother argues that the district court “made no finding
that there were compelling circumstances justifying the change
of custody.” She cites Hudema v. Carpenter, 1999 UT App 290,
¶ 26, 989 P.2d 491, for the proposition that a court must find
compelling circumstances before ordering a change in custody
when the child thrives under the current arrangement. But what
Mother fails to mention is that Hudema was a case in which the
mother had sole physical custody, the mother had already
moved out of state, and the court was considering a petition to
modify custody. Id. ¶¶ 3–4. A modification is premised on a
finding of changed circumstances. See id. ¶ 22; Utah Code Ann.
§ 30-3-10.4(a) (LexisNexis 2013). If a court determines that
circumstances have changed in a manner that justifies a
modification of custody, the court then conducts a best-interests
analysis. See Hudema, 1999 UT App 290, ¶ 22. This is markedly
different from the process of evaluating relocation, where
courts must begin with an inquiry into the child’s best interests.
Compare id., with Utah Code Ann. § 30-3-37(4). This difference
is logical, because a conditional change of custody ordered
under section 30-3-37(4) is triggered only if a significant change
necessarily occurs, namely, if a custodial parent elects to relocate
despite a court’s finding that relocation would not be in the
child’s best interest. And thus, findings regarding changed
circumstances are unnecessary in such a case.

¶14 Mother has failed to carry her burden of persuasion on
appeal because she challenges the conditional change of custody
without primary focus on the applicable law. Because the district

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court correctly applied section 30-3-37 by ordering a conditional
change of custody only after it determined that relocation was
not in Child’s best interest, there was no error.

II. The Parties’ Settlement Agreement

¶15 There is a separate and nearly independent ground on
which we affirm the district court’s order. We have already
explained that the district court fulfilled its obligations in
evaluating Child’s best interest. After doing so, the district court
simply gave Mother a choice: if she relocates, custody will
change; if she remains in Utah, it will not. And Mother fails to
acknowledge that she bargained for this result. She agreed not to
pursue an out-of-state residency in exchange for more than five
years of non-modifiable alimony payments. Then, a month after
reaching that agreement, she sought to move with Child so she
could accept such a residency. Thus, the district court’s order is
entirely consistent with—indeed, it serves to enforce—a
negotiated provision of the settlement agreement and divorce
decree. 4

4. We acknowledge that the parties do not include any
significant analysis addressing this issue in their briefs on
appeal. But Father, in his opposition below to Mother’s request
to relocate, made the argument that the motion should be denied
because it was contrary to the terms agreed upon by the parties
in the settlement agreement. We are entitled to affirm on any
legitimate ground suggested in the record before us. See, e.g.,
Pentalon Constr., Inc. v. Rymark Props., LLC, 2015 UT App 29, ¶ 25,
344 P.3d 180 (explaining that appellate courts “may choose to
affirm the judgment of the district court on any legal ground or
theory apparent on the record,” even when the ground or theory
used is different from the ones relied on by the trial court or
argued on appeal).

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III. Mother’s Due Process Challenge

¶16 Mother argues that the district court denied her due
process by not allowing certain evidence at the hearing. 5 It is
true that after objecting to a commissioner’s recommendation,
“any party has the right . . . to present testimony and other
evidence on genuine issues of material fact relevant to custody.”
See Utah R. Civ. P. 108(d)(3)(A). But Mother fails to identify any
such issue before the court on which she had not been heard,
and so she has not shown that the district court was under an
obligation to receive additional evidence she proffered.

IV. The Parent-Time Agreement

¶17 Finally, we note that this is the sort of circumstance that
should have been contemplated and comprehensively dealt with
in the parties’ parenting plan—the key to any well-ordered joint
custody arrangement. At the time of divorce, Mother had
recently completed medical school, a fact of which both parties
were well aware, and both parties understood that for Mother to
become a practicing physician, she would need to complete a
medical residency, just as Father had done as part of his own

5. The district court began the hearing by accepting evidence as
if it were deciding a petition to modify. When it was pointed out
that the hearing was actually intended to address a motion to
relocate, the court concluded that it already had enough
information to make a determination under section 30-3-37. To
remedy its partial acceptance of evidence, it acknowledged that
it should not have received the testimony of the evaluator and
indicated that it instead would review the evaluator’s testimony
“only insofar as it’s consistent with the Commissioner’s order.”
The court also accepted Mother’s proffer that she and her expert
would have presented testimony indicating that it would be in
Child’s best interest to relocate with Mother.

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training to become a practicing physician. At the time of the
divorce, Mother had not succeeded in securing a residency in
Utah, 6 and this issue was a point of negotiation for the parties. A
well-drafted parenting plan should have anticipated these exact
circumstances and provided for them. Cf. Utah Code Ann. § 30-
3-10.9(1)(c), (2) (LexisNexis 2013) (explaining that one objective
of a parenting plan is to “provide for the child’s changing needs
as the child grows and matures in a way that minimizes the need
for future modifications to the parenting plan” and that a
“parenting plan shall contain provisions for resolution of future
disputes between the parents”). While the failure to address this
situation in the parties’ parenting plan does not affect the appeal
in this case, we highlight this issue for the benefit of family-law
practitioners, and hopefully to help avoid similar disputes in the
future.

CONCLUSION

¶18 The relevant statute requires district courts to determine
whether relocation is in a child’s best interest. The district court
did so here, considering a wide range of factors that were
pertinent to the parties involved. It ultimately concluded that
Child should not relocate to Connecticut, even if Mother chose to
do so, and we see no error in that conclusion. Furthermore, the
district court acted within its discretion in ordering a conditional
change of custody after it determined that Child would be best
served by remaining in Utah. This outcome is further supported
by the parties’ agreement, at the time of divorce, that Mother

6. This statement should not be taken as a negative reflection on
Mother’s credentials. Fine though Utah’s hospitals with
radiology residency programs undoubtedly are, the two
residencies Mother was offered were at Duke University in
North Carolina and Yale University in Connecticut.

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would not pursue a medical residency out of state, in exchange
for which she would receive substantial, non-modifiable
alimony. Thus, Mother is left with a choice: She can leave
circumstances as they were agreed upon at the time of divorce,
staying in Utah and forgoing a residency if she cannot find one
here, or she can elect to relocate, at which point the custody
arrangement will change so that Child can remain in Utah. There
was no error in the district court giving Mother this choice,
difficult though it no doubt is for a parent who wants both to
maximize her time with her child and to advance professionally.

¶19 Affirmed.

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