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Ross v. Ross

Court of Appeals of Utah

June 13, 2019

Jesseca Rae Ross, Appellee,
Timothy Ronald Ross, Appellant.

          Third District Court, Salt Lake Department The Honorable Su Chon No. 154901171

          Bastiaan K. Coebergh, Attorney for Appellant

         Kyle Adams, Attorney for Appellee

          Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and Diana Hagen 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 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.


         ¶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 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 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 ...

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