Davis v. Davis

Decision Date21 January 1988
Docket NumberNo. 860134,860134
Citation749 P.2d 647
PartiesJames Z. DAVIS, Plaintiff, Respondent, and Cross-Appellant, v. Penny A. DAVIS, Defendant, Appellant, and Cross-Respondent.
CourtUtah Supreme Court

Gordon L. Roberts, T. Patrick Casey, Salt Lake City, for defendant, appellant and cross respondent.

Bert L. Dart, John D. Parken, Salt Lake City, for plaintiff, respondent and cross appellant.


Defendant Penny A. Davis appeals from a decree of divorce awarding custody of the parties' minor child to plaintiff James Z. Davis. James Davis cross-appeals, challenging the district court's award of permanent alimony to Penny Davis. We affirm.

At the time of the divorce, the parties had been married nearly thirteen years and had one child, J.Z., born in February of 1982. In the summer of 1984, Penny told her husband that she wanted a separation. She expressed frustration in dealing with J.Z. and dissatisfaction with the marriage. The two agreed to a divorce, and James contacted a friend and attorney, who prepared the necessary papers. A signed complaint was filed in the district court on Friday, August 10, 1984, and the parties arranged to have a district judge hear the uncontested divorce at his house on Saturday, August 11th. One reason the parties gave for expediting the process was that Penny's parents were out of the country and she wanted the divorce granted as quickly as possible because she was afraid that when her parents returned they would try to persuade her to stay married.

At the hearing, the parties agreed that James would have custody of J.Z. so that the child could remain in the family home. They also agreed that Penny would receive $500 a month alimony for ten years. They waived all waiting periods, and the divorce decree was final on August 13, 1984. Shortly after the hearing, Penny filed a motion under Utah Rule of Civil Procedure 60(b) to set aside the decree on grounds that she was emotionally unstable at the time of the hearing and did not realize the consequences of her actions. A hearing was held and the motion was granted. On September 11, 1985, the divorce decree was set aside.

The trial of the renewed divorce proceedings was held in November of 1985. By that time, the parties had agreed to a stipulation regarding the division of marital property. Only the issues of child custody and alimony remained. After a three-day trial, the court awarded custody of J.Z. to James and awarded Penny alimony of $750 per month.

On appeal, Penny argues that the trial court erred when it awarded James custody of J.Z. Penny claims that the award of custody to James was not in the best interests of the child; therefore, it should be reversed. In divorce proceedings, including initial custody awards, we give trial courts broad discretion. E.g., Moody v. Moody, 715 P.2d 507, 510 (Utah 1985). So long as that discretion is exercised within the confines of the legal standards we have set, Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985), and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, Smith v. Smith, 726 P.2d 423, 426 (Utah 1986), we will not disturb the resulting award. We review the findings made by a judge sitting without a jury under the "clearly erroneous" standard of Utah Rule of Civil Procedure 52(a). Ashton v. Ashton, 733 P.2d 147, 149-50 n. 1 (Utah 1987); see Utah R.Civ.P. 52(a).

Reviewing the trial court's findings and conclusions pertaining to the custody award in light of the foregoing standard, we conclude that no abuse of discretion occurred. The trial court considered a number of factors in awarding custody to James. Principal among them were that James had been J.Z.'s primary caregiver for over a year and had provided a very stable environment. In considering competing claims to custody between fit parents under the "best interests of the child" standard, considerable weight should be given to which parent has been the child's primary caregiver. Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986).

Penny, however, contends that the court's order was improper because it had the effect of rewarding James for his exploitative conduct in securing the earlier hurried divorce and custody order. But for that order, he would not have had custody of J.Z. for the year in question. The law does not, when determining custody of a child, attempt to reward or punish one parent or the other. This Court has repeatedly stated that the child's best interests are to be the primary focus of a custody decision. See Sanderson v. Tryon, 739 P.2d 623, 626 (Utah 1987); Fontenot v. Fontenot, 714 P.2d 1131, 1132 (Utah 1986); Becker v. Becker, 694 P.2d 608, 610 (Utah 1984); Mitchell v. Mitchell, 668 P.2d 561, 564 (Utah 1983); Hyde v. Hyde, 22 Utah 2d 429, 431, 454 P.2d 884, 885 (1969). Of course, if the primary caregiver gained that status wrongfully, courts should be careful not to reward such conduct by giving the wrongdoer a consequential advantage in evaluating the custody question. See, e.g., In re Halloway, 732 P.2d 962, 971-72 (Utah 1986).

In the instant case, however, there is no finding that James acted wrongfully in obtaining custody of J.Z. In fact, Penny actually wanted her husband to take custody at the time of the initial divorce. Difficulties she was encountering in caring for the child were one of the reasons she sought the divorce. In light of her reasons for seeking a divorce and her emotional instability during the fall of 1984, there is no reason to believe that Penny would have acted differently toward J.Z. or that the trial court would have awarded her custody if the initial proceedings had been conducted in any other fashion. She has now changed her mind, but that does not mean that the court that granted the second divorce should have discounted the fact that her husband had actual custody of the child for a substantial period and functioned well as a primary caregiver. J.Z. has resided with his father since August of 1984. He has lived in the same house since he was born. Ample evidence was presented to support the trial court's determination that J.Z. lives in a stable, secure environment and that he and James have a loving relationship.

Penny, on the other hand, failed to present any evidence to support her contention that J.Z.'s best interests would have been furthered by placing J.Z. with her. Although she presented testimony that she is now emotionally stable and no longer depressed, the trial court was not persuaded that her present stability was sufficient to offset its concerns about her ability to provide a stable environment for J.Z. The court found that Penny was still in a period of reconstruction from her earlier emotional difficulties. Based on the evidence presented, the trial court's award of custody to James was within its discretion.

James's claim on cross-appeal is that the trial court abused its discretion in awarding Penny alimony. Trial courts have essentially the same discretion in awarding alimony and dividing property as they have in making awards of custody; so long as the trial court exercises its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions, we will not disturb its rulings. See, e.g., Jones v. Jones, 700 P.2d at 1074; Jorgensen v. Jorgensen, 599 P.2d 510, 511-12 (Utah 1979), overruled on other grounds, Pusey v. Pusey, 728 P.2d at 119.

The standard for determining alimony awards is well settled. The trial judge is to consider three factors: first, the financial condition and needs of the party seeking alimony; second, that party's ability to produce a sufficient income for him- or herself; and third, the ability of the other party to provide support. Jones v. Jones, 700 P.2d at 1075 (quoting English v. English, 565 P.2d 409, 411-12 (Utah 1977)). All three factors must be considered, and the ultimate test of the propriety of...

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    ...of the child). Efaw is consistent with how other courts have handled a shift of primary-care-provider. See, e.g., Davis v. Davis, 749 P.2d 647, 648-49 (Utah 1988). It is also how the trial court handled this case. A fair evaluation of the trial court's decision shows that it is not based on......
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3 books & journal articles
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