Cox v. Cox

• Decision Date: 06 March 1975
• Docket Number: No. 13242,13242
• Citation: 532 P.2d 994
• Parties: Dixie S. COX, Plaintiff, Appellant and Cross-Respondent, v. Mervyn K. COX, Defendant, Respondent and Cross-Appellant.
• Court: Utah Supreme Court

Page 994

532 P.2d 994

Dixie S. COX, Plaintiff, Appellant and Cross-Respondent, v. Mervyn K. COX, Defendant, Respondent and Cross-Appellant.

No. 13242.

Supreme Court of Utah.

March 6, 1975.

Joseph E. Jackson, of Cline, Jackson & Mayer, Cedar City, for plaintiff-appellant.

Arthur H. Nielsen and Randall L. Romrell, of Nielsen, Conder, Hansen & Henriod, Salt Lake City, V. Pershing Nelson, of Aldrich & Nelson, Provo, for defendant-respondent.

CROCKETT, Justice:

Plaintiff, Dixie Cox, sued the defendant, Dr. Mervyn Cox, for divorce, alleging mental cruelty. She sought custody of their four children, ages three to nine years, child support, alimony, and a division of family property. By way of defense and counterclaim, defendant alleged the same ground, asked for a divorce for himself; that the plaintiff be awarded no alimony; and that he be granted custody of the children, but offered to set up a substantial trust for their benefit.

After several proceedings, which need not be detailed here, and upon the completion of the trial, the decree finally entered and upon which this appeal is taken, granted the defendant the divorce, awarded custody of the children to the plaintiff, with proper visiting rights for the defendant, together with $125 per month each (total $500) for their support; and awarded the plaintiff a property and alimony settlement in the total cash amount of $65,000, subject to reduction to $60,000 if paid within six months by the defendant, (which has been paid) and 1972 station wagon valued at $4,500.

Neither party desires to undo the divorce. On appeal plaintiff argues for an increase in the property and alimony settlement. Defendant opposes this and cross-appeals seeking custody of the children.

The plaintiff and defendant were married in St. George, Utah, June 16, 1961. Shortly after their marriage, they moved to San Francisco, where defendant attended dental school. During that time plaintiff worked to help support the family. After the completion of the school they returned to St. George, where Dr. Cox established his dental practice. Over the subsequent years, plaintiff worked as a receptionist and later as bookkeeper for defendant and the family enterprises. During their marriage they appear to have prospered and accumulated a substantial amount of real and personal property including a home, farms, residential lots, and some commercial properties. Upon all of it, plaintiff's evidence of value totaled $290,100, whereas that of the defendant placed it at $164,787. The trial court's finding was $210,000.

Concerning the problems here involved we proceed upon the standard rules of review in divorce cases: that they are equitable, in which this court may review the evidence and the facts as well as the law; ¹ but nevertheless, due to his prerogatives and advantaged position, we indulge considerable deference to the findings and judgment of the trial court. ²

Custody of Children

It is appropriate to observe that the defendant's claim to custody is not without considerable plausibility. Affirmative factors in his favor are: that the court found that he was a fit and proper person to have their custody; and in fact granted him custody in the first instance from February until August, 1973; and further there can be no question about his devotion to them and his dedication to their welfare. The negatives on the other side are that it is not to be denied that some aspects of the plaintiff's conduct have been less than exemplary in being in the company of others; and away from the home more than she should have been. But it also appears that despite her absences she likewise had concern for her family; that she managed a well ordered home, kept her children clean, well dressed and provided with balanced, nutritious meals, and appeared to maintain harmony and love between herself and them. The findings indicate that she is also a proper person to be awarded their custody.

We agree with the defendant's argument that under the modern and realistic trend of law, the mother has no absolute or invariable right to be awarded the custody of the children; and that the father's rights and interests are entitled to equal and just consideration. ³ Concerning the equality of the sexes, the Utah Constitution, Section I, Article IV, states:

The rights of citizens of the State of Utah . . . shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.

But this does not mean that the law must pretend to be unaware of and blindly ignore obvious and essential biological differences.

In addition to and quite beyond the rights of the parents, there is the important principle that the paramount consideration is the long-term welfare and adjustment of the children. ⁴ That being so, we think there is wisdom in the traditional patterns of thought that the roles of the mother and father in the family are such that, all other things being comparatively equal, the children should be in the care of their mother, especially so children of younger years; and that this may be true even where the divorce is granted to the father. ⁵

After giving what impresses us as careful attention to the problems involved, and consistent with the ideas hereinabove expressed, the trial court concluded that custody should be with the plaintiff, with generous visiting rights for the defendant. We appreciate the difficulties involved in such a decision for the trial court; and even more so, for the parties and the children, whose tolerance, forbearance and cooperation are demanded in this situation. In harmony with the rule that in...