In Re Cooper
410 P.2d 475
Utah
1966
Check Treatment

In re Cindy COOPER and Tracy Caine, Marvin Lentini and Judith D. Lentini, Petitioners and Appellants

No. 10352

Supreme Court of Utah

Jan. 24, 1966

410 P.2d 475

for a new trial). Affirmed with costs to respondent.

This appeal is abortive, being from the denial of a motion for a new trial.1

Nonetheless, parenthetically and dictumwise, we are at a loss to know why, after the full hearings, testimony, findings, conclusions and judgment in which Mrs. Habbeshaw appeared to have exhausted her complaints, financial and physical, she should ask for a new trial under Rule 59(a) (4), Utah Rules of Civil Procedure. There appears to be no evidence that could not have been discovered with reasonable diligence. The court gave her $2500 for her attorney. He withdrew before appeal. She got other counsel and we think that there was nothing after the judgment that occurred warranting its vacation.

McDONOUGH, WADE and CALLISTER, JJ., concur.

CROCKETT, Justice (concurring):

I concur and desire to add this comment: The parties have been married for 28 years; have reared four children, all now adults, three of whom are married. They have acquired numerous and substantial properties having a net value of around $175,000 of which the trial court awarded approximately one-half to each. Defendant was also awarded $550 per month as alimony, a Cadillac automobile, the protection of $150,000 in insurance and $2500 attorneys fees, and plaintiff was ordered to assume all debts. Defendant‘s contention is that the property settlement was inequitable. It impresses me as well within the discretion of the trial court and should be sustained under the principles set forth in , and .

Christenson, Paulson & Taylor, Cullen Y. Christenson, Provo, for appellants.

Phil L. Hansen, Atty. Gen., State of Utah, Ronald N. Boyce, Asst. Atty. Gen., State of Utah, for the State of Utah in the interest of the children.

CROCKETT, Justice.

Marvin Lentini and his wife, Judith D. Lentini, filed a petition with the Juvenile Court of Utah County to obtain custody of two children, Cindy Cooper, then age 6, and Tracy Caine, then age 4, for the stated purpose of ultimate adoption. After a hearing the court denied their petition and they appeal.

Pursuant to prior proceedings before that court in the interest of those children, they had been permanently taken from the custody of their natural parents and placed with the Utah County Department of Public Welfare, with the view to eventual placement and adoption.1

Mrs. Lentini is a sister of the mother of these children. When the Juvenile Court deprived the mother of their custody, the Lentinis filed this petition, together with an affidavit of the mother indicating her preference that petitioners be awarded the children. It is their contention that this, combined with the fact of their relationship to the children, supported by the evidence of their fitness as parents and the suitability of their home compel a finding in their favor.

In fairness to the Lentinis it should be stated that the concern they have shown for the welfare of these children is entirely commendable. Furthermore, the evidence shows them to be fine people, with children of their own, who have a good home and an income adequate to support the children. We also observe that we have no disagreement with the basic principles which they advocate in behalf of their contention: that in custody matters, all things else being equal, near relatives should generally be given preference over nonrelatives; and that considerable weight should be given to the preference of the natural parents.2 Nevertheless, while these principles should be given due consideration in resolving such problems, they cannot be made absolutely controlling over the practical realities of life which the court must weigh in serving the paramount objective which must override all others: the welfare of the children.3 In order to carry out its responsibility of safeguarding the interest of children, and incidentally of society, where the home has failed to do so, the Juvenile Court is of necessity endowed with broad discretion as to what will best accomplish that purpose.4

The evidence concerning the heretofore erratic lives of these children, and particularly the testimony of the social workers who know about them, justifies apprehensions as to the advisability of placing them with the Lentinis. It is indicated that due to the trauma of vagarious and unsettled lives they have undergone serious emotional disturbances; and have manifest an unnatural jealousy and antagonism toward each other. But now in separate foster home care they are showing marked improvement in their emotional stability and adjustment. If the children were with the Lentinis the mother would always know where they were. Although she now indicates a willingness to give the children to her sister, the erratic history indicates a strong likelihood that before long she would be attempting to interfere, as she has done in the past.

From our review of this case, giving proper deference to the prerogatives of the Juvenile Court, we are not persuaded that it abused its discretion in refusing to grant the petition under the conditions which were shown to exist at the time. We think it is appropriate to observe that proceedings in regard to the custody of children are equitable,5 and that they are ambulatory in that conditions may change from time to time. Accordingly, these children and the question as to their custody are subject to such further proceedings and orders as the Juvenile Court may think is in their interest and welfare.

Affirmed. No costs awarded.

McDONOUGH, WADE, and CALLISTER, JJ., concur.

HENRIOD, Chief Justice: (concurring in the result).

I concur in the result, but add that I think the Lentinis had no standing in court procedurally, jurisdictionally or statutorily.

Notes

1
See Rule 72(a), Utah Rules of Civil Procedure, Vol. 9, pp. 776 et seq. and annotations thereto. For a review of the statutory grant of power and the scope of authority of the Juvenile Court in such matters, see ; .
2
Sec. 55-10-30(4) U.C.A.1953 states: “That the child be placed under such guardianship or custody as may be warranted by the evidence and for the best interest of the child; provided, however, that in the selection of a guardian the court shall give due consideration to the preference of parents.”
4
For a statement in regard to the interest of society in the care, nurture, education and welfare of children see footnote 1 above.
5
See , footnote 3, supra.