*1 conclusions, the follow- ing findings ‘Assuming but used:
ing language should be deciding applicant had an accident finds, thus It etc.’ alleged the Panel Commission, adopting
obvious that adopt any conclusions report, did not any, but the Panel if there were
law of drawn.”
the medical facts and conclusions EL-
CALLISTER, TUCKETT
LETT, JJ., concur.
CROCKETT, except IJ., concur I re- C. Purity comment on the Biscuit case.
serve
Carol Respondent, STONE, Defendant
Val Franklin Appellant.
No. 10698.
Supreme Utah. Court of
Sept. 11, 1967.
3,79 McIntosh, City, Lake A. Salt James appellant.
Thomas, Armstrong, Rawlings, West & Schaerrer, Schaerrer, Lake Neil D. Salt *2 City, respondent.
CROCKETT, Chief Justice. Defendant, Stone, appeals Val Franklin petition pro- denying his from an de- supplemental to a divorce to ceedings prive custody their children plaintiff of him. award them to and in 1952. In married were years 1964, marriage 12 after 11, children, 8, ages and birth then of four 5, a decree was awarded twins divorce, custody children and $50 years support. later in each for their Two proceed- 1966, the defendant initiated plain- requesting to hold ing (1) the court contempt honor tiff in for failure to his privileges, (2) deprive visitation her of him, custody the children and and award men- (3) to to have a tal examination. pretrial framed
After a conference had issues, plenary trial was had on those 1966, 15, 14 a result of which .June the court found in favor of issue, i.e., (1) each that she was not contempt visit- for refusal of defendant’s ing rights; (2) she was neither men- tally incompetent unfit nor otherwise (3) children; (cid:127)have 380 matters; showing be not a sufficient should made in such there was we-
justify ordering
upset
judgment
mental
her to submit to a
will not
his
and substitute-
clearly appears
the latter
issue he
our
As to
own unless it
that the-
examination.
this, “However,
discretion,
misap-
added
should
trial court abused its
plied
closely observed,
appears
following
and if it
at
law. The
are a few
examples
supporting-
some
time that
of innumerable cases
future
principles
physical
necessary,
just
applica-
Slaughter
examination is
stated:
v.
274,
503;
Slaughter, 18
Utah 2d
421
tion to
be made immediate-
P.2d
shall
Dahlberg
157,
ly.”
Dahlberg,
v.
77 Utah
292
214;
P.2d
Hendricks,
Hendricks v.
reviewing
the trial court’s or
553,
277;
Utah
63 P.2d
An
Anderson v.
proceedings
der in divorce
there are cer
derson,
104,
252;
104 Utah
138 P.2d
Allen
principles
tain well established
borne
Allen,
99,
872;
v.
109 Utah
165 P.2d
findings
mind. The
and order are en Alldredge
Alldredge,
v.
119 Utah
presumption
dowed
validity,
with a
;
P.2d
(1951)
A.L.R.2d 305
Pinion
appellant
the burden is
to show
Pinion,
92 Utah
While is some evidence disagreement I am not in holding vailing opinion that the times some regarding at *4 behavior, position what erratic in her is trial to de- there coun in a better is tervailing that credibility evidence the mental termine of than we witnesses and/or However, agree she from cannot nervous difficulties suffered are. I with part temporary, been a which holds that the and that she was decision capstone mother abuse his in to her children. The trial court did not discretion receiving psychiatric been consultations failing plaintiff submit to a to order the defendant herein By refusing and treatment and examination. the or- mental alleges whom the court de- der for such an plaintiff seeing testify will right informed has nied to himself the to he incompetent should expert plaintiff she is and that she as to whether hospital committed to capable caring her children. a for further in fact of regard. treatment in put I cannot believe that we should stamp approval upon rulings of a motion, Pursuant to the court issued suppress which in effect all evidence cause, made an order to show which was regarding a matter ex- about April returnable 1966. It included the any perts give testimony. can worthwhile following: I, therefore, dissent and would like to set further to show ordered my forth in full. reasons why a she should not submit to Plaintiff was awarded decree di- a mental and examination a vorce from the defendant in and de- impartial physician disinterested and spite the fact that she had suffered ner- psychiatrist pursuant prayer 1958, 1959, vous breakdown in upon grounds fully motion and more she awarded the custody four described herein. 31, 1966, minor children. On March interesting It is to note that instead of through defendant counsel moved the court noticing the motion for the examination (a) to issue an order to show cause as to separately, counsel for defendant chose why the divorce decree should part to include it as order to show grant custody modified to and control of cause. defendant, minor children to (b) to hold the contempt of court for order, according This to the sheriff’s re refusal to allow him periods reasonable turn, upon was served the defendant him children, visitation (c) for an plaintiff. and not self pursuant 35(a), to Rule P., U. R. C. April 6, 1966, answered require plaintiff to submit to a mental the defendant’s motion for an order examination. filed, the motion counsel paragraph show cause stated alleged: following: paragraph thereof the “Denies plaintiff mentally incompetent admitting only 3 A has re perform psychiatric consultations, the duties of mother to these ceived three children plaintiff has, feet, paragraph all the rest denies 3A.”
383 are hearing lems of said and these issues affirmatively alleged that further She as follows: pay for funds to sufficient she without was psychiatric examination requested by :Jc [*] % [*] [*] [*]
the defendant.
pursuant
34
Rule
3. Whether
should
rule
have
35]
[sic.] [the
1966,
appeared
8,
April
On
of Civil Procedure
of the Utah Rules
Division of the
and Motion
Law
before the
plain-
cause for the
there is sufficient
Court,
plaintiff’s
counsel
District
psychiatric, physical
tiff to submit to a
examination be
the motion for
moved
examination.
it would
grounds
on
dismissed
plain-
4. Should the Court decide the
before the
time than allowed
more
take
disinter-
tiff should be examined
hear. There
Motion
Law and
physician,
impartial
examin-
ested
about
argument
considerable
physician
ing
to all
shall be entitled
time that the
would re-
amount of
per-
pertaining
medical
records
why the
quire
discovery
de-
make
being
son
examined.
to examine
under
fendant wanted
plaintiff objects to
Counsel for the
finally
court
indicated that
35. The
Rule
records,
furnishing
of all medical
days
The defend-
should be sufficient.
objection
is overruled.
pay
agreed to
for the
ant
^
^
^
^
pretrial
and the matter was referred to
1966,
On
order to
14 and
setting. Twenty interrogato-
judge for a
June
before the
show
was tried
court.
April
ries
served
the defendant on
were
regarding
Seven
examined
witnesses were
18, 1966,
seven pages
of answers were
case,
the merits of the
and in addition
3,May
pretrial
The
returned
1966.
thereto the
interviewed the
mi-
four
days later.
held two
nor children.
older
boys, ages
The two
parts
following
pertinent
expressed
The
desire to
live with
signed
judge:
pretrial
father,
seven-year-old
their
while
twins
chose to remain
their
mother.
hearing
THE
is based
COURT: The
upon the
motion of the defendant modi-
found
the mother was not
fy
mentally
entered
incompetent
the Decree heretofor
in-
nor
incom-
otherwise
[sic.]
opinion
petent
to.
It
the Court' at
Pre-
or unfit to care for the
children
purpose
original
trial that Pretrial
little
serves
refused to modify the
decree of
these matters.
both
in regard
counsel
divorce
prob-
desire
forth
to set
the issues and
children.
It
further found
judgment for
court in an
contempt regarding
claim
trial
to be in
equity
any
rights
case
more than it has in a law
visiting
refusal of reasonable
Utah,
case.
Constitution of
Article
not sufficient
there was
further found that
“ * * *
9, provides:
equity
court to order
Section
this time” for the
cause “at
appeal may
questions
cases the
be on
phys-
submit to a
fact;
ap
both
law and
cases at law the
ical examination.
*6
peal
questions
shall be on
of law alone.
filed
a
decision
In
memorandum
”
* *
*
provision
constitutional
This
hearing
day
stated:
after
empowers
Supreme
Court to examine
mentally in-
plaintiff is not
1. That the
the evidence and determine whether it is
competent
the four minor
to take care of
sufficient
findings.
to sustain the
See
children,
otherwise
nor is the
McKay
al.,
261,
v. Farr et
15 Utah
unfit to take
of them.
care
particularly page 264,
650,
page
during these times not tálk to the chil- will power prevent his the defendant from pay any dren or attention to them at all. having independent psychiatric evalua- Therefore, May seem that as of tion. This should have been evidence to 3, 1966, the defendant shown needed, the court that one was and there cause so as to an examination of was no reason to set over case plaintiff. days opportunity afford defendant an Rules of Civil Procedure were for- discovery Our make whether purpose granting mulated for the needed the examination. It was for the possible latitude for the ascertain- widest court to determine from the evidence be- underlying ment before trial the facts way pleadings fore it and affidavits dispute. presented grant issues in There is no whether to the motion for of the 'the examination. The court here but the mental condition what decide issue; fact, underlying if defendant is psy- was an entitled have a *9 388 the first plaintiff, had not shown when matter made the examination of
chiatric
the Law
Motion
came before
and
Division
When the
is insane.
not if the
However,
May
April
on
1966.
the
treated
psychiatrist
who
1966, ample
cause had been established
stand and was asked
on the witness
ordering
the
opinion
the
his
of whether
instead of
court should have so ordered
insane,
plaintiff was
counsel for
up
setting
as to whether or not
an issue
privi-
objected
ground that it ivas a
on the
examination should be made.
able
matter,
leged
and thus
any
prevent
hearing
court
from
to
defendant further contends that the
sanity.
expert
her
from an
as to
evidence
awarding
court
in not
below erred
the cus
tody of the two older children to their fa
sane,
plaintiff thought
Piad
she was
they
go
him,
ther
elected
because
with
by having her
she would
benefitted
have
they
years
than
and since
were more
of
10
by
tell the court so.
age,
says
he
obligated
court was
knowing
psychia-
her
advance what
own
by
30-3-5,
their
honor
election
Section
U.
lips
say,
trist would
she
his
sealed
C.A.1953. This section reads as follows:
privilege
rely
claim of
and elected
a
sanity.
When
decree of divorce is made
lay neighbors
her
establish her
may
make such orders in relation
By
opposition
request
her
for an
children, property
parties,
and
independent psychiatric
examination
the maintenance of
chil-
by her
privilege,
claim of
she
was able
may
equitable; provided,
dren as
deny to the trial court all of the evidence
any
if
of the children have attained the
which a
would
to make mind,
years
age of
ten
sound
proper
decision
case.
privilege
such children shall have the
If there
nothing
had been
else to alert
they
selecting
parent
independent
need for an
subsequent
will attach themselves. Such
qualified psy-
examination
may
changes
be made
or new orders
chiatrist,
privilege
this claim of
should
disposal
respect to
the court with
have been sufficient.
prop-
or the distribution
the children
proper.
erty
reasonable
shall
partly
While the defendant’s counsel was
calling
up
at
reading
blame
not
motion
oth-
A
section shows
his
casual
of this
er
di
than
connection with his order to
at
applies
that it
the time
Anderson,
cause,
appears
show
it
vorce.
court had
See Anderson v.
permit
To
opportunity
one clear
and this the court will not do.
I think the court abused its discretion in ordering psychiatric examination, but court,
since matter was tried to *10 necessary retry
should not be the entire
matter. The order of the court should be
set aside with grant directions to the mo- independent
tion psychiatric exami-
nation and to continue the matter fur-
ther hearing independent until the psychia- give testimony
trist can court, after
which the court should make new findings
and such an order isas warranted all
'the presented evidence to him. Each
should bear its own costs appeal. on this
G. Plaintiff and Appellant, HOOPER,
Richard T. Defendant Respondent.
No. 10700.
Supreme Court of Utah.
Sept. 21, 1967.