*1 H7 building opened). is so But defendant did testify,
not and there was no evidence that entry presence
his or was with intent Bales,
other than to commit theft. State v.
The mere unlawful into premises may support
vate not alone
finding of intent. But defendant’s unex
plained possession property, of another’s conduct, subsequent
his statements and
and other evidence of the sur unrebutted
rounding support circumstances also inference that en
reasonable defendant
tered or remained in the office with the
specific intent to commit theft. Sims v.
State, (1981); 272 Ark. S.W.2d Harper,
State v. 235 Kan. (1984); Sisneros, Utah, see State (1981); Utah, Brooks,
P.2d State v. (1981); Wharton’s Criminal
Law, 338-40, supra at 217-22. To §§ intent,
prove required the State is not
show circumstances that are identical to in the circumstances cases cited above.
The circumstances evidenced in this case justify finding more than sufficient to finding
of intent to commit theft. That
supported by substantial evidence.
We affirm the conviction.
Stewart, J., concurs the result. PUSEY, Plaintiff,
Kathleen S.
Respondent,
Cross-Appellant, PUSEY, Defendant, Appellant,
Robert O. Cross-Respondent.
No. 20365.
Supreme Court Utah.
Aug.
Rehearing Denied Dec.
The court found trial that had defendant carry proving failed to his burden of that $69,000 purported the loan of Load Alert did in fact exist. It established the net $123,587, worth Load Alert at of after de- $4,000, ducting debts of equity and the $43,000. the home as Bountiful total Of a $166,587, estate plaintiff marital of was $83,293.50, $43,000 awarded to awarded $40,- the equity her as the home and as money judgment 293.50 assessed a against against defendant and liened the Fair, Inc., dairy. Fun was to awarded de- fendant. par-
The trial court conversed with the ties’ two minor children in chambers and boy learned that older expressed the a living marked for with his fa- ther, younger boy whereas the indicated equal parents. spite attachment to both In of recommendations a social worker parties joint custody the be awarded Pusey, pro O. Robert se. plaintiff’s brother, given and who had Livingston, City, Valden Salt Lake family professional counseling, plaintiff, respondent, cross-appellant. plaintiff parent would be better to have children, of custody both the trial court DURHAM, Justice: of custody boy awarded the older to de- appeals younger Defendant fendant to portion from of a plaintiff, rights with awarding plaintiff decree of reasonable divorce one- visitation parties. half of the both corporation value assets during formed their and award- $3,000
ing plaintiff
attorney
toward her
I.
Plaintiff cross-appeals, challenging
fees.
Defendant assails the trial court’s
par-
to defendant of the
proper
award of one-half
the Load Alert
ties’ older
We affirm.
son.
ty
inherently
plaintiff
to
as
inconsistent
parties
were
finding
married twelve
with
court's
that the assets of
sons,
Fair, Inc.,
aged
and had two
twelve
premarital
and nine at Fun
were defendant’s
the time of trial in
subject
1984. Defendant and
assets not
plaintiff.
division with
Fair,
corporation,
his mother owned a
Fun
He
contends that
award is inconsistent
Inc.,
plain-
at
time defendant married
with decisions from this
which have
Court
parties purchased
uniformly
tiff.
In
premarital
home
returned
assets to the
joint
spouse and, also,
in Bountiful with
funds.
In
owner
the court
Alert, Inc.,
parties
pur-
$69,000
formed Load
which
should have
him
returned to
property
chased real
as the Western
loan
known
obtained from Fun
divid
Fair before
Dairy facility.
ing
support,
General
Both
were
the marital
In
estate.
he cites
corporation.
trial,
Preston,
(Utah
officers of the
At
de- Preston v.
H9
(Utah 1980)).
property
P.2d 1380
prevailing spouse
that real
Plaintiff’s counsel
assets,
presented,
purchased
premarital
totalling $9,700
an itemized bill
had been
with
attorney
and those assets
awarded to
own-
fees which defendant’s
were
counsel ac-
dividing
cepted
marital es-
spouse
er
before
reasonable. Plaintiff testified
monthly
her
pay
tate.
take-home
was about
*3
monthly
less than her
expenses.
$500
utterly
prove
Defendant
failed to
here
$3,000
trial court
required
awarded her
prof-
loan did
exist. He
that
indeed
$6,000
her to
attorney
assume more than
in
nothing
obligation
fered
to substantiate
In light
fees.
of her testimony that her
Fair, Inc. He
from Load Alert to Fun
monthly expenses
great-
were considerably
produce
papers
testified that he could
no
income,
er than her
that award was well
documenting the loan and could not estab-
within the discretion of the trial
An
court.
repayment
of
any
lish
terms and conditions
attorney
award of
fees should not be over-
charged. The trial
or rates of interest
showing
turned absent a clear
that the trial
expressly
throughout
court
found
Walther,
court abused its discretion.
709
marriage
commingled corpo-
defendant had
P.2d at
No
such abuse existed here.
personal
rate and
funds so that it could not
any
any
trace
assets to
source and found
III.
there was no
that Load Alert
debt
cross-appeals
Plaintiff
from that
anybody
to
and that defendant had
owed
portion
awarding
of the divorce decree
cus
proof.
carry
failed to
his burden of
tody
of the older son of the
to
adjustment
endows the trial court’s
Court
requests
defendant and
that both children
of financial interests of the
with a
judicial
to her. This
be awarded
Court’s
validity
not
presumption of
and does
re-
mother,
preference for the
reaffirmed in
of
view their values absent a clear abuse
Nilson,
v.
ties of rule preference, the maternal Although the trial court in case this validity is unnecessary lacks because it and parties par- found both to be fit custodial perpetuates stereotypes. The de- outdated ents, judgement custody its ultimate on velopment years of the tender doctrine was required an complex assessment sit- society perhaps useful in a in which fathers uation before it. The court did not follow traditionally and worked outside home the recommendations made the social not; however, pat- did mothers since that plaintiff’s or the worker brother. As child longer prevalent, particularly tern is no custody turns determination on numerous households, post-separation single-parent factors, however, that choice was its within equally the tender doctrine is ana- Fletcher, discretion. See Fletcher Hyde, supra, Fur- chronistic. See at 6. The evidence ther, “[b]y arbitrarily applying presump- twelve-year-old indicated that the mani- son awarding tion in favor the mother and preference father, a strong fested for his basis, custody her on a court is not feelings had friction which caused and ill evaluating truly is best what child’s him between and his mother. The father Id. at interests.” preference appeared also to show a for the son, supports believe the choice in com older which
We fact the trial peting custody split claims should instead decision to custody court’s parents. on Certainly be based function-related factors. children between the these, among though dictating Prominent were not exclu- these factors the course of Concerning assumption, the trial court. We find no the first can action taken we judicial today discretion in the award. take notice that abuse of more women than ever have before entered the work affirmed, judgment Accordingly, likely force. it is much more respective incurred in their the costs bear today than when first appeals. arose that the mother will not have been primary caregiver. As for the second HALL, C.J., STEWART, Gordon R. assumption, may represent it the consensus J., concur. America, today may of Victorian it abe HOWE, J., concurs in the result. opinion, matter of I individual but am ZIMMERMAN, (concurring in the Justice empirical sup- aware of no evidence that result): ports superior the notion that females are caregivers, things being equal. all other opinion,
I Durham’s concur with Justice I also it is time to discontinue believe I perpetuate judicial see no need to gen- support for the notion of any hint of policy preference firm lacks preferences in child der-based today’s foundation in world. This Court However, I that such a re- cases. believe has maintained the in dicta de- to con- can be achieved without resort sult spite legislative contrary, intent to the analysis. stitutional it can and should abandon it without resort analysis. Any legitimate to constitutional The maternal existed one *5 preference interests served legislative matter of form or another as a gender-neutral equally well viewed 1977, 1903 to policy in Utah from when caregiver preference. primary repealed section 30-3-10 of the Code was legislature.1 Jorgensen v. Jor 510, 511 De gensen, 599 P.2d statute, repeal this Court
spite the of this that as a matter of
has stated dicta recognize
judicial policy continue to we will all other
a maternal when Id.; equal.
factors are Henderson v. 1289, (Utah Henderson, 576 P.2d CHAPMAN, Joseph Myrna Chapman, 307, 1978); Smith, 564 P.2d Smith v. Respondent, 1977). date, Plaintiffs and To we have not been other presented with a case where all equal. factors have been Nancy B. S. Dennis CHAPMAN original justification for the use Chapman, Defendants and that it would be maternal was Appellants. in the best interest of the child to be with No. 21000. 2d Steiger Steiger, the mother. Utah 273, 276, 418, (1956). Supreme Court of Utah. assumptions probably on two was based Sept. 1986. pre- current in 1903 when the which were first, sumption enacted: that the moth- was Rehearing Denied Nov. 1986. invariably as a child’s er almost served divorce; caregiver prior to primary
second, simply biologically was
better off with a mother. cognizance language original passed specifically of the statute still took
1. The statute is best that the mother children. “the natural awarded the mother of minor Laws, young children." Utah suited to care for Utah ch. In this § Laws, outright changed, § but the ch. award of was