from the District Court of Sweetwater County The Honorable
Richard L. Lavery, Judge.
Representing Appellant: Farrah L. Spencer and Monica J.
Vozakis of Long Reimer Winegar Beppler LLP, Evanston,
Representing Appellee: Berkeley C. Booth, pro se.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
Berkeley Booth (Father) and Melissa Booth (Mother) agreed
when they were divorced that Mother would keep their former
marital residence in Oakley, Utah, just east of Salt Lake
City, while Father moved to Rock Springs, Wyoming. They also
agreed, and the district court ordered, that Father would
exercise his visitation with their two children at the former
marital residence in Oakley. Two years later, the parties
asked the district court to modify the visitation schedule so
that Father was no longer required to exercise his visitation
at the Oakley home. The court granted the request, but also
changed Father's visitation schedule to provide that the
children would spend extended periods of time with him in
Rock Springs. Because neither the district court's order
nor the record provide support for a finding that the
modification to Father's visitation schedule was in the
children's best interests, we reverse that aspect of the
1. Did the district court violate Mother's due process
rights when it modified the visitation schedule?
there a material change in circumstances that justified
modifying the visitation schedule in addition to the
the district court abuse its discretion when it modified
Father's visitation without considering the
children's best interests?
Father and Mother were married in 1996, and had two children:
BJB, born in 2000, and PAB, born in 2003. On November 6,
2015, the parties divorced. The parties filed a Stipulation
and Agreement for Divorce, in which they agreed to joint
legal custody of the children, with Mother to have primary
physical custody. The agreement also provided that Mother
would have possession of the marital home in Oakley until
June 30, 2021, when it would be listed for sale and the
proceeds split. The district court incorporated this
agreement into the divorce decree.
Father lives in Sweetwater County, Wyoming, while Mother
lives in Oakley, Utah. They agreed that it was in the
children's best interests for Father to exercise his
visitation at the parties' former marital home in Oakley.
Father had alternating weekend visitation from Friday at 6:00
p.m. to Sunday at 7:00 p.m., and every Tuesday from 5:30 p.m.
to 8:30 p.m. He also had visitation during spring break in
odd numbered years and had four consecutive weeks during the
summer, while Mother had two uninterrupted weeks in the
summer. Father was responsible for his transportation costs
from his home in Sweetwater County to the Oakley home.
The agreement led to a rancorous situation that might have
been predicted. In December 2016, Mother filed a motion for
order to show cause that accused Father of failing to adhere
to the agreement's provision that he would treat Mother
with respect while he exercised his visitation at the Oakley
home. After a hearing, the district court found Father in
contempt "for failing to vacate the Oakley home at the
conclusion of his visitation, and for having guests visit the
Oakley home without [Mother's] permission." The
court ordered Father to adhere to the parties' agreement
and the court's divorce decree.
On July 5, 2017, Father filed his Petition to Modify Decree
of Divorce, in which he asserted that a "substantial
change in circumstances has occurred" that warranted a
modification. Father alleged that the travel distance between
Sweetwater County and the Oakley home made it "nearly
impossible . . . to utilize [his] mid-week visits,"
Mother "arranged for . . . [B]B] to work during
Father's scheduled visits," and Mother was
interfering with his parenting time while at the Oakley home.
Father asked the district court to modify the decree to allow
him to exercise his visitation "at a location of his
choosing," to require Mother to split the transportation
costs, or to allow Father to stay overnight at the Oakley
home during his Tuesday visits. He also requested that the
court require Mother to give him the "First Right of
Refusal" to watch the children when she could not. In
her response and counter-petition, Mother generally agreed
that visitation at the Oakley home was no longer feasible
because they could not get along and that a "substantial
change in circumstance" existed. She asked the court to
modify the order to no longer allow Father to exercise his
visitation at the Oakley home, but to still require him to
exercise his visitation somewhere else in Summit County,
Utah, near the Oakley home. In addition, she alleged that
Father was interfering with her two consecutive weeks of
summer break with the children. Father filed a response to
Mother's counter-petition and agreed that continuing his
visitation in Summit County was in the children's best
At the hearing on the cross-petitions, Father testified that
he and Mother initially agreed to have Father exercise his
visitation at the Oakley home so that the children would
remain in a familiar environment and because "it would
be difficult, if not impossible, for us to split the kids
like traditional families and drive halfway and drop kids
off." He testified that when he was at the Oakley home
for visitation, Mother was also there and their animosity
towards each other impeded his ability to have his scheduled
visitation with the children and has "been very
detrimental to the kids."
Father testified that, because the divorce decree requires
him to pay $1, 500 towards the mortgage on the Oakley home,
he is unable to buy or rent a home near Oakley where he could
exercise his visitation. Thus, Father proposed having Mother
sell or refinance the Oakley home in her name so he could
obtain a loan to get a place nearby. Father also testified
that he has generally been unable to exercise Tuesday evening
visitation because of the distance between his home in Rock
Springs and Oakley. At the conclusion of Father's
testimony, the district court made the following suggestion:
I'm kind of in a position where my choices are to say
tough it out and continue with the same visitation schedule
that you have, that's all that there is.
The other alternatives are to . . . do a more normalized
visitation. We'll split the cost of transportation, you
get every other weekend wherever you want to go, except at
the [Oakley] house.
Do it somewhere else, you get half the summer ...