Anderson v. Anderson

• Decision Date: 29 August 1946
• Docket Number: 6893
• Citation: 172 P.2d 132,110 Utah 300
• Court: Utah Supreme Court
• Parties: ANDERSON v. ANDERSON

172 P.2d 132

110 Utah 300

ANDERSON v. ANDERSON

No. 6893

Supreme Court of Utah

August 29, 1946

Appeal from District Court, Third District, Salt Lake County Clarence E. Baker, Judge.

Action by Marie M. Anderson against Don Anderson for divorce wherein there was a judgment for plaintiff. From a further judgment denying the defendant's application for modification of divorce judgment relating to custody of minor children and to alimony and support money, the defendant appeals.

Judgment affirmed in part and reversed in part, and cause remanded with directions.

Richard L. Bird and Lynn S. Richards, both of Salt Lake City, for appellant.

Brigham Clegg and James M. Carlson, both of Salt Lake City, for respondent.

McDonough Justice. Larson, C. J., and Wade and Wolfe, JJ., concur. Pratt, J., not participating.

OPINION

McDonough, Justice.

Appellant attacks the judgment denying his application for modification of provisions in the decree of divorce relating to custody of minor children, and also as to alimony and support money. He contends on this appeal that he is entitled to the following relief: (1) Custody of all of the minor children, and if not all of them, then at least custody of Gary who had reached 10 years of age, and who desires to live with appellant. (2) Discontinuance of alimony for plaintiff by reason of her remarriage. (3) Elimination of support money for any children not living with plaintiff who are otherwise supported by the defendant. (4) Reversal of judgment for $ 225 for alleged arrearages. (5) Reversal of judgment for counsel fees in this proceeding.

Plaintiff obtained a divorce on the grounds of nonsupport. At the time, all of the children were under 10 years of age. In her complaint she prayed for $ 75 per month "alimony and support money" for herself and minor children. The findings recite that

"it will be necessary for plaintiff to have permanent alimony in the sum of $ 75.00 per month for the maintenance of herself and their minor children."

The decree, however, requires defendant to pay such sum as

"permanent alimony for the support of said minor children during their minority."

Defendant filed no answer, but signed a waiver of time to plead in connection with a stipulation. However, neither plaintiff nor her attorney ever filed such stipulation, and at the hearing on petition for modification of the decree the defendant claimed that the stipulation was one of the conditions for his execution of the waiver.

The stipulation related to the training of the children. Thereby, plaintiff agreed that the children would not be taken to any Sunday school where principles not accepted nor approved by defendant's church were taught. While defendant did not plead violation of such stipulation, there was evidence introduced to the effect that it had been secretly violated, and that the children had been subjected to the influence of plaintiff's second husband, who allegedly advocated unlawful conduct. The stipulation was admitted in evidence.

In refusing to change the custody of the children, the trial court made a finding to the effect that their mother, the respondent, is a fit and proper person to retain such custody. The record is such as to support such finding. There was no finding made to the effect that appellant is not a fit and proper person to be awarded their custody, though the findings recite that prior to the filing of the petition for modification he had not shown a great deal of interest in his children and such findings recite generally in the words of the answer of respondent that he is of an unstable and unpredictable nature. A reading of the record convinces us that a finding of unfitness on his part would not be supported by the evidence.

As to the two younger children one three-and-one-half years and the other five years old, the trial court did not err in leaving them in the custody of their mother. The remaining question relative to custody of the children is: Was the trial court warranted in overruling the request of Gary that he be permitted to reside with his father?

We find no merit in the contention that by failing to plead that Gary wanted to reside with appellant, that there could be no change in custody. It would be better practice to have such fact pleaded, where it is relied on as a basis for a change of custody, but where the welfare of a child is involved, the failure of either litigant in a divorce proceeding to specifically allege what is for the best interests of the child or what is sought by a child, should not operate to prejudice the rights of such child.

It is appellant's position that under our statutes when a child reaches 10 years of age, he has an absolute right to have his custody status changed unless the parent to whom he wishes to become attached is not a fit and proper person to have his custody. Sec. 40-3-5, U. C. A. 1943, reads as follows:

"When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children, as may be equitable; provided, that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves. Such subsequent changes or new orders may be made by the court with respect to the disposal of the children or the distribution of property as shall be reasonable and proper." (Italics added.)

Sec. 40-3-10 relates to separation cases and contains the identical language hereinabove emphasized. Appellant cites Schwalenberg v. Schwalenberg, 65 Ohio App. 217, 29 N.E.2d 617, in support of the proposition that upon reaching the age of 10 years the child has the right to have his custody status changed and to attach himself to the other parent. However, the following additional provision, not contained in our statute, appears in the Ohio code:

"The above provisions permitting children to choose the parent with whom they desire to live, also shall apply to proceedings for modification of the former orders of the court, fixing the custody thereof, as in original actions. * * *" (Sec. 8033, Ohio Gen. Code).

Dorsey v. Dorsey, 52 Utah 73, 172 P. 722, is also cited by appellant. However, that case involved the award of custody of children at the time the decree of divorce was entered. There is therein no intimation that the statute grants the right of choice to a child upon his attaining the age of ten years, though custody of the child had been awarded to one of the parents upon the entering of the decree when such child was younger. Nor do we think the statute susceptible of such construction. The italicized portion thereof, as set out hereinabove, is a limitation on the power of the court to award custody of a child "at the time the decree is made" to a parent not of the child's choice, where both parents are found to be...