172 P. 722 | Utah | 1918
The plaintiff commenced this action in the district court of Weber County to obtain a divorce from the defendant upon the ground of extreme cruelty. The acts of cruelty are set forth at great length in the complaint, and are largely based on defendant’s conduct with other men, and especially with one Robert H. Gray, in going to dances and other places of amusement with him against the wish and without the consent of the plaintiff. The complaint was filed on the 10th day of February, 1917, and on the 19th, within nine days after the same was filed, plaintiff and defendant entered into a stipulation, signed by them personally and by counsel, whereby it was agreed that, in case the court should grant plaintiff a divorce, the defendant shall receive certain household furniture and that she waived all other claims for alimony. It was further stipulated that the defendant should have the care, custody, and control of the minor child, a little |irl eleven years of age, the fruit of the marriage between plaintiff and defendant, and that the plaintiff shall pay to the defendant “the sum of fifteen dollars per month for the support, care, maintenance, and education” of said minor child. It seems the child elected to live with her mother, a right she had under our statute. It was therefore stipulated that the plaintiff should have the right to visit said child, and she should have the right to visit him “at all reasonable times.” The plaintiff also agreed to pay the defendant twenty-five dollars as attorney’s fees.
Upon the foregoing stipulation being filed, the defendant did not answer the complaint and did not further appear in the action. In due time the plaintiff presented his evidence
We can readily understand why, after the stipulation was entered into between plaintiff and defendant, she paid no further attention to the action. As is usual in ex parte hearings, one gets merely the views of the complaining party. It is also true, as all lawyers and judges well know, that in a family quarrel the conduct and acts of the spouse that is deemed in fault are unduly, and sometimes without adequate foundation, magnified and distorted. This case is perhaps no exception to that rule. If in this case there had been a vigorous cross-examination of the plaintiff and his witnesses, and if they would have been required to give a strict account of what they knew, and to give the source of their statements, and if such cross-examination had been supplemented by defendant’s version of the acts of which she is accused and of her conduct, the conclusions that could legitimately be deduced from the whole evidence might be quite different. That such is the case, we think, is reflected from plaintiff’s own conduct. Witnesses were called who testified that he was a man of exemplary moral character, and the court so found. If, therefore, he had believed that the defendant was an immoral woman he would not have stipulated that his only child should remain in her care, custody, and control. The plaintiff evidently believed her to be a fit person to have the care and custody of his only child. Notwithstanding the stipulation, however, and that the evidence respecting the defendant’s moral fitness to rear her own child is, to say the least, merely conjectural, and not satisfactory, the court not only refused to follow the stipulation, |>ut made a finding “that said defendant is an immoral and otherwise incompetent and improper person to have the care, custody, and control of said * * * minor child.”
After the stipulation was entered into and filed, and while the action was pending, the defendant left Ogden, and she
While our statute (Comp. Laws 1907, section 1212, as amended by chapter 109, Laws Utah 1909, p. 231) provides that in ease the court grants a divorce, and any child, the fruit of the marriage, has attained the age of ten
While, as before stated, we are of the opinion that the best interests of the child should be the guiding and controlling factor in determining its custody, yet the mere fact