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Lefevre v. Mackelprang

Court of Appeals of Utah

March 28, 2019

Amelia Gayatree LeFevre, Appellee,
Casey Lee Mackelprang, Appellant.

          Sixth District Court, Panguitch Department The Honorable Paul D. Lyman No. 154600028

          Van Mackelprang and Julie J. Nelson, Attorneys for Appellant

          Douglas L. Neeley, Attorney for Appellee

          Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.

          HARRIS, JUDGE:

         ¶1 Casey Lee Mackelprang (Father) asked the trial court to modify the governing divorce decree (the Decree) to install him as the primary custodial parent or, at least, change the parent-time schedule to increase the number of nights his daughter (Child) spent at his house. After a trial, the court denied his request, and in addition ordered him to pay the full cost of a custody evaluation. Father now asks us to review the trial court's conclusions, and we agree with Father that those conclusions were infirm. Accordingly, we vacate the trial court's order and remand the case for further proceedings.


         ¶2 After nearly six years of marriage, Father and Amelia Gayatree LeFevre (Mother) divorced in August 2014. They had one child-Child-together, who was five years old at the time of the parties' divorce.

         ¶3 For the first few years of their marriage, the couple lived in Cedar City, Utah with Child, who had some medical issues and required extra attention. According to Mother, she provided nearly all care for Child during this time period, even though she was taking classes at a university, and even though Father was not employed full-time. She maintained that Father often refused to help with child care, and when she needed someone to care for Child so that she could attend classes, she found it necessary to call upon her sister, her parents, and even a few friends, because Father was unwilling to do so himself. By the time Child was three, Father had never spent a night alone with Child and was not comfortable doing so.

         ¶4 Mother and Father separated in April 2012. At that point, both Mother and Father left Cedar City to live with family: Mother and Child moved to Boulder, Utah, and Father moved to Kanab, Utah. A few months later, however, in the late summer of 2012, Mother returned to Cedar City to begin work on a master's degree. Father also soon returned to Cedar City, but the parties lived in separate residences. At that point, while Mother continued to act as Child's primary caregiver, the parties worked out an informal parent-time arrangement in which Mother would take Child over to see Father on occasion but, because Father was still not entirely comfortable with caring for Child on his own, Mother was often present during these visits. Most of these visits were daytime visits for a few hours, although Father did care for Child overnight on a handful of occasions.

         ¶5 Mother filed for divorce in August 2012 and, in September 2013, the parties entered into a stipulated settlement agreement that designated Mother as Child's primary physical custodian. The agreement ordered parent-time for Father every other weekend and every other Wednesday evening, a schedule that (although it did not mention the statute) was similar to the one set forth in Utah Code section 30-3-35. Nearly a year later, in August 2014, the trial court signed the Decree, incorporating the parties' agreed-upon custody and parent-time arrangement.

         ¶6 During this period, Father and Mother each lived in Cedar City during the week, but on most weekends Mother traveled to Boulder to visit family and to work. Mother always took Child with her to Boulder for the weekends, even on the alternating weekends on which Father would have otherwise been entitled to parent-time, and at the time Father voiced no objection. Father also was not in the habit of exercising the regular mid-week visits to which he was entitled, instead depending on Mother to bring Child over to his house for many short weekday visits as her class schedule allowed. And Father did not exercise his right to a multi-week summertime visit in 2014, even though the stipulation entitled him to do so.

         ¶7 After nearly three years in Cedar City, Mother and Child moved back to Boulder in April 2015, and at this point Father began to regularly exercise the weekend parent-time and the multi-week summertime visits to which the Decree entitled him. Although Father did not exercise his mid-week visits due to the distance between Cedar City and Boulder, he began to make significant efforts to travel to Boulder to participate in important events in Child's life, such as school programs and dance competitions, even when such events did not occur during his weekend. After a while, Father was of the view that things were going so well with his parent-time that he asked Mother if she would agree to increasing the number of overnights he had with Child, but Mother did not agree.

         ¶8 In November 2015, Father filed a petition to modify the Decree, requesting that the court alter the custody arrangement to designate him, rather than Mother, as the primary physical custodian. In the petition, among other things, Father argued that a modification was warranted because Mother's move to Boulder in April 2015 constituted a substantial and material change in circumstances because Father was no longer able to see Child as often as he had when Mother was living in Cedar City. Father also argued that Mother was not spending a substantial amount of her parent-time with Child because she was working two jobs that required her to leave Child in the primary care of Child's maternal grandmother. Mother opposed Father's petition, and eventually filed a counter-petition requesting that the Decree be modified to remove redundant material, clarify issues, and make minor alterations to the parent-time schedule.

         ¶9 In November 2016, while the competing petitions were pending, Mother notified Father that she intended to relocate with Child to Las Vegas, Nevada. Mother proposed that the parties continue to follow the parent-time schedule set forth in the Decree until her move, at which point they should adopt the parent-time schedule found in Utah Code section 30-3-37(6). Father opposed Mother's request, and asked the court to hold a hearing to consider Mother's proposed move. Father also asked the court to appoint a custody evaluator to assess the parties' situation, a request Mother opposed on the ground that no such evaluation was necessary. Mother argued, in the alternative, that if the court did appoint an evaluator, it should order Father to pay all costs associated with the evaluation.

         ¶10 In early February 2017, Mother and Child relocated to Las Vegas. Shortly thereafter, the court appointed a custody evaluator (Evaluator) and ordered Father to front the costs associated with the appointment, but stated that it would make a final allocation of costs at a later date. The court also postponed any hearing on Mother's relocation to Las Vegas until after the completion of the custody evaluation. Around this same time, in early 2017, in addition to regularly exercising his weekend and summertime parent-time-which he had been doing since April 2015-Father began to travel to Las Vegas once a week to exercise regular mid-week parent-time with Child.

         ¶11 Over the next few months, Evaluator conducted a number of interviews with Father, Mother, and Child, as well as home studies during which she observed Child. On November 1, 2017, Evaluator issued her report, in which she recommended-with one important qualification-that the status quo should continue, with Mother acting as the primary residential parent and with Father exercising parent-time on alternating weekends and Wednesdays during the school year. The important qualification was that, if Father were to move to Las Vegas so as to be geographically closer to Mother and Child, she would alter her recommendation and urge the court to adopt the alternative parent-time schedule specified in Utah Code section 30-3-35.1 (section 35.1), which would result in Father having the right to five overnights (instead of two) in every two-week period.

         ¶12 After learning of Evaluator's recommendations, Father almost immediately moved to Las Vegas.[1] Just a few weeks later, in mid-November 2017, the court held a trial on the competing petitions to modify. Evaluator testified about her report and evaluation, and recommended that, because Father had relocated to Las Vegas, the court should implement a custody and parent-time arrangement based on section 35.1. She opined that adopting section 35.1 would have a positive impact on Child and the proposed schedule would not hurt the bond Child has with Mother, but would strengthen the bond Child has with Father by providing Child an opportunity to develop a structure and routine with him during the additional mid-week and weekend overnights. Evaluator further opined that the proposed schedule would help reduce communication problems the parties had been experiencing under the current schedule because drop-offs during the school year would occur at school. She also offered her observation that Father was a good parent who since April 2015 had made significant efforts to spend quality time with Child, and opined that Father's parenting actions over the past two-and-a-half years were more relevant than his actions during the first six years of Child's life.

         ¶13 Evaluator also recommended that Father's summertime parent-time should occur in one large block to reduce both the number of transitions between the parents as well as the amount of time Child spends in the car traveling back and forth from Las Vegas to Utah. Finally, in an effort to reduce the frequency of Father's requests for virtual parent-time, Evaluator recommended that Father's video or phone chats with Child should be held at scheduled times three days per week, and that the parties' ...

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