Smith v. Smith, 564 P.2d 307

Smith v. Smith

564 P.2d 307

Utah

1977

Check Treatment

*1 appar- The court mother in awarding custody at best. foolhardy child only be present- evidence years, tender .. And this to believe view ently chose is Family Division of purpose of the based the oft-stated agents of custody provide award Services. welfarе, child’s best interests and shows that both the evidence While [Citing authorities.] and reestablished remarried have opinion this is the my In sound view on the living styles, we do not modest similarly represents problem a correct statement as such entitled to mother feel that the of law. оf preference. statutory presumption formerly held2 that presump this We have does apply 30-3-103 not in

tion Section

divorce cases. recognize special prefer- that no

We also case to the in this available

ence is comparatively are not factors all

because Family to the Division of according equal4 Randy SMITH, Appellant, Plaintiff and and other evidence be- evaluation Services’ v. Court. fore this SMITH, Linda K. Jaсobson Defendant standard rules favor- basis Respondent. findings and determination of ing the matters, in such the decree trial court No. 14695. affirmed. court is Costs are the district Court of Supreme Utah. respondent. awarded to 6,May 1977. MAUGHAN, J., in concurs main concurring opinion in of CROCK- and also

ETT, J. HALL, JJ., in re- concur

WILKINS

sult.

CROCKETT, (concurring, Justice: comment).

added court has out pointed

It true that U.C.A.1953, ex- relates

that Sec. however, separation;1 to cases

pressly Steiger Steiger2 out in v.

clearly pointed McDonough apply-

through Justice Chief powers equitable granted

ing general 30-3-5, U.C.A.1953:

Sec. has stated a divorced

This court custo- no absolute to the

mother has . but

dy of minor give decisions has of our been

policy things being that all the view

weight given

equal, should preference v, Arends, Arends, opin See Arends 1. footnote 2 main Note 2. Arends ion, including Sampsell cited and cases ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍therein Holt, 550, exposition U.C.A.1953, 115 Utah Replacement Vol. 3. Wolfe. thereon Smith, Utah, (1977). 564 P.2d 307 4. Smith Utah 293 P.2d 418. 2. 4 *2 CROCKETT, Justice: Plaintiff, Randy Smith, appeals from an proceedings order in supplemental to a di- in which vorce trial custody court took couple’s children, of the two aged now 3, him from and custody and awarded to his wife, Linda former K. (now Jacobson Smith Moore). (1) contends

Plaintiff that there was not a sufficient of circum- decree; warrant modifying stances to (2) that defendant has no absolute custody of minor years children under ten of age. and plaintiff defendant were married Lake,

in North 23, Salt Utah on March filed 1968. Plaintiff this divorce action on August 1975. On day, that same de- a waiver signed fendant consenting to the entry default and of her that custody of the awarded children be plaintiff; ex-parte hearing, an Judge Ronald 0. Hyde the Second ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍District Court granted divorce, made plaintiff a a division of the parties’ property awarded custody him of the children. A two motion the de- to set fendant Linda judgment, aside the seeking modification of the decree as to property, asking for children, was denied. 10, 1975, plaintiff

On October remarried to Vickie Smith. November defendant remarried to Randy Moore. On 10, 1975, November peti- defendant filed a modify tion to the decree. The matter came before Calvin Gould of the and he same court ordered investigation an The report of both homes. gave them both evaluation a favorable as to custody of the children; showed plaintiff’s home combined monthly have a income of $1,296 $1,380 defendant’s Both on the parties rely report as supporting their to custody claims children.

Upon appraisal situation, his the total concluded Gould that would be in the best interest children to inbe Vlahos, Knowlton, & Pete N. Vlahos mother, Linda, their defendant Ogden, plaintiff for and appellant. rights with liberal visitation to their City, Hadley, father, J. for plaintiff Randy, Russell Salt Lake which includes as respondent. one 24-hour period minimums: each week- week, evening period each end, 2-hour trial court one seems to have exer ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍recess, summer school during the cised considerable care to month make what in his holidays. was the equal judgment possible division best arrange children, ment of these (1) above, agree that even we As awareness of the disaрpointing full and dis divorce, matters, the court has where heartening may effects it have upon some *3 subsequent to make continuing jurisdiction involved, parties the greater of but with to the children with orders consideration welfare of the chil equitable and rights as proрerty regard, it is In that appropri dren. further adjudication has been an when there just,1 to in mind that an ate have award of custo facts, that should be res set of upon dy of children in a divorce proceeding is not thereon; and there should be no adjudicata If рermanent. change circumstances so adjudication of such unless modification welfare and best that their interests would is some that there substantial shown it is the thereby, served court has continuing in circumstances that would war change authority to jurisdiction apprоpri make doing so.2 rant changes.4 ate to act judge appears trial have The We way knowing have no of whether the conformity in awareness of and in full the distinction between “statutory pre- changes of this rule. The circum the sumption” and natural presumptiоn, or the defendant Linda by claimed stances law, explained policy of the above would the court based the trial difference to any make the determination whereas are: that the decree in arrangement which appears to have upset she at the time consent sick and was carefully by been considered and arrived at health; divorce, good is now in the she ed to However, plaintiff the trial court. the has her to a who loves and the man is married correctly out that pointed the trial court well; them that and who will treat children stating in error in that was there is a “stat- home and sufficient have suitable in utory presumption” favor of defend- provide for them. to income children; in to regard custody ant of these is entitled to and that he adjudica- have an (2) therе is As to above: no doubt without thereon applying any tion such plaintiff’s the correctness of the con about statutory presumption. This controversy in judge was error in that trial tention tried fully been and considered has “statutory of referring presumption and it Judge Calvin Gould sеems inadvisa- custody of of mother” to a natural put courts be that the ble no that she has absolute years; and tender necessity plenary re-trial. This However, custody. appropri to their is Judge case therefore remanded to Gould problem on this is to be considered ate giving purpose any further con- for statute, that, irrespective of fact this matter he deems advisa- sideration stated in our de invariably policy declared ble, not inconsistent with the ex- views things being equal, else is that “all cisions herein. pressed in given should be mother preference costs No awarded. Remanded. awarding of children of tender is . this true even years [and J., granted ELLETT, MAUGHAN, J., is divorce C. con- when] cur. the father.”3 30-3-5, therein, 1953. Sec. U.C.A. authorities cited and see also McBroom, 14 McBroom Utah 2d 384 Anderson, 13 Utah 368

2. Andеrson 2d P.2d 961. Perkins, 264; 522 Perkins v. 708 P.2d P.2d (Utah). above, footnote 4.See and see Sec. Cox, (Utah). also Cox v. through for court Justice Ellett So stated this Hyde, Hyde 454 P.2d 884 22 Utah HALL, (dissenting): Child custody proceedings are equitable highest degree, in the and this court has only dissent. One need respectfully I consistently that held the best interests decision of to the memorandum turn and welfare of minor child is the change of custo- to ascertain that the Gould controlling factor every case. previously on a con- made basis dy was court and found to be want- this sidered case Johnson v. Johnson3 sup- order provisions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Gould’s ing.1 portive of the same proposition and Justice pertinent here read as follows: that Crockett, court, speaking for the stated it a fact that the defendant I find as as follows: sign Stipulation under did not likewise exemplifies the coercion, signature that her or but duress prior wisdom the adjudications of this act; voluntary a free and thereon was that questions court are al- order of child ways equitable and that the controlling *4 materially changed circumstanc- on based consideration is the welfare of the chil- Decree, to wit: since the es dren involved. . Parental love defendant; remarriage of the 1. The expression, must find to some extent at acquisition by the new home The of least, in sacrifice for the happiness and husband; the аnd and de- defendant children, welfare of the rather than in upon what the court con- cision is based merely insisting upon privileges par- of the best interest of the chil- siders to be [Emphasis enthood. added.] finding parties the on a that on dren Moving now to the real issue of whether footing equal being to an or not a substantial change of circumstanc- children, for the care the able es was shown as warrant a change of being statutory pre- accorded the the custody, opinion main aptly observes a sumption [Emphа- of natural mother. that when there has adjudication been an sis added.] upon set of facts that should be res 1, Arends, supra Ellett, note Justice In judicata and there should be no modifica- court, a speaking for unanimous determined it tion unless is shown there are some sub- stаtutory provision the 30- that Section changes stantial that would warrant doing 1953, 3-10, upon by U.C.A. relied the trial so. cases are replete regard to what court, application to has no divorce cases a constitutes of substantial change applicаble that the section circumstances, say but none the acquisi- 1953, which reads: U.C.A. marriage tion of a new partner and a house made, are adequate.4 When a decree of divorce is the may make such orders in relation to court The main recites that at the time children, parties, and property and agreed consented and plain- that maintenance tiff should have she was “sick and equitable, as upset.” is contrary Such specific Gould, The court further stated that in divorce finding Also, supra. it is to the welfare of the cases minor children of that be noted defendant moved to vacate importance determining cus- paramount and set aside the initial decree on such Sampsell tody, citing others, v. Holt2 wherein grounds, but was denied such said: was Hyde, relief prompted Arеnds, 328, (1962); Johnson, 30 263, 1. Arends v. Utah 2d 517 P.2d 264 Johnson v. 7 Utah 2d (1974). 1019 (1958); Robinson, 323 P.2d 16 v. 15 Robinson 293, (1964); P.2d 434 Perkins Utah 2d 391 v. 73, (1949). 202 2. 115 Utah P.2d 550 Utah, Perkins, 708; Rogich Rogich, 522 P.2d v. 1956); (Idaho 299 91 P.2d Warnecke v. War 263, (1958). Utah 2d 323 16 3. 7 P.2d 259, necke, 699; 28 Wash.2d 182 P.2d Henrick Henrickson, (Or. 1960). son 358 v. P.2d 507 456, Cody Cody, (1916); Utah P. 952 Anderson, 36, Utah Anderson v.

3H modify the decree. proceeding children is one of the present primary concerns of therefrom. was taken appeal Steiger No the courts. Steiger, 4 Utah 2d 273, 293 P.2d regard 418. In that impor- Prick, supra note Cody, In tant considerations are the facts that at court, treated issue speaking divorce they the time were award- follows: where to thе father they have since with the party is dissatisfied Where resided; they have known no other prop- allowance or distribution of original Where the home. has been de- children, he disposal erty, or appear and the children termined to be appeаl to review timely prosecute must adjusted well comparatively happy, that re- orders or decrees ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in court’s compelled not be should review must in such cases the gard, and appears unless there their home some upon the evidence adduсed be had doing reason for substantial so. Other hearing. original being equal, require- circumstances- referred to in Anderson supra, was Cody, ment would not be satisfied the mere Anderson, note and Justice that economic may fact circumstances McDonough statеd: spouse. [Emphasis with the other better 30-3-5, U.C.A.1953, Title added.] opportunity for divorced contemplates case, Oregon into court for modifica- Henrickson v. Henrick litigants to come son, decree on original supra every based note holds that tion of child сonditions, dissatis- *5 changed judicata order is res and in such decree is a matter of with the moving faction party later modification must appeal, it is not sub- Absent appeal. that it the burden would bear except where ject to modification welfare of thе child. The enhance the Ida are demonstrated. changed conditions case, Rogich Rogich, and the Wash ho [Emphasis case, Warnecke, added.] ington Warnecke v. adopt criteria, i.e., note also same main is that if upshot of the of the child is the sole matter with welfare recognize the fitness of the does a court is concerned not with parent, and consents as a custodial father parents. the whims thereon, thereto, court relies and the alter if she later thereafter must looking judge’s back to the trial Now the claimed “natural to exercise decides deleting statutory therefrom the order fitness, and as to her better presumption” indulged in that is applica- not presumption obligated court is that same ble, though lip was made of materi- service not the law and change of heart. Such is changed circumstances, ally actually there hold. not now so court should only marriage none since new ability of not is to be said for Much Otherwise, new house remain. each rely upon custo- litigants to be able only equal footing is on parent and the order able to orders, also for children be dy changing custody should be reversed. them so that will not on place reliance who parent at the whim of one uprooted WILKINS, J., in result of concurs doing well only presently HALL’S dissent. Robinson, su- marriage. Robinson v. new point. specifically is a case

pra note petition trial court denied

There minor to have wife

divorced her former husband. from taken sustained the order this court appeal, following language:

adopting

Notwithstanding desires con- the welfare parties,

tentions