Duncan v. Howard, 950227-CA

• Decision Date: 13 June 1996
• Docket Number: No. 950227-CA,950227-CA
• Citation: 918 P.2d 888
• Parties: Jerome K. DUNCAN, Plaintiff and Appellee, v. Eileen M. HOWARD; Sandra Thorderson; Larry Thorderson; and State of Utah, Department of Human Services, Defendants and Appellants.
• Court: Utah Court of Appeals

Page 888

918 P.2d 888

Jerome K. DUNCAN, Plaintiff and Appellee, v. Eileen M. HOWARD; Sandra Thorderson; Larry Thorderson and State of Utah, Department of Human Services Defendants and Appellants.

No. 950227-CA.

Court of Appeals of Utah.

June 13, 1996.

Leslie W. Slaugh, Provo, for Appellant Howard.

John Spencer Snow, Salt Lake City, for Appellants Thorderson.

Wendy M. Lewis, Salt Lake City, for Appellee.

Before ORME, BENCH and WILKINS, JJ.

OPINION

WILKINS, Judge:

Eileen M. Howard and Sandra and Larry Thorderson appeal an order of the district court granting custody of Clel Howard to Jerome K. Duncan. We affirm.

BACKGROUND

Mr. Duncan and Ms. Howard met in 1987. In the fall of that year, they began cohabiting in Cedar City, Utah. They lived together for four or five months, until Mr. Duncan moved to Texas to seek other employment, and he and Ms. Howard ended their relationship. Clel was born to Ms. Howard on October 12, 1988. At that time, Ms. Howard was living with her mother and stepfather, Sandra and Larry Thorderson, in Salt Lake City, Utah. Ms. Howard cared for Clel, with Ms. Thorderson's assistance, for about nine months. After about nine months, Ms. Howard obtained employment and left Clel in Ms. Thorderson's care.

Mr. Duncan was notified of Clel's birth by a letter from Ms. Howard in January 1989. A few days after he received this letter, Mr. Duncan left his job in Texas and moved back to Utah. He resided near the Thordersons' residence, where Clel and Ms. Howard lived. Mr. Duncan began visiting Clel when his work schedule, the Thordersons' schedules, and Clel's schedule permitted. Mr. Duncan testified he visited Clel about three times a month. Mr. Duncan also testified he paid child support to Ms. Howard for Clel, and presented into evidence photocopies of money order receipts made out to Ms. Howard totaling approximately $5400. The Thordersons deny these payments were made. Mr. Duncan filed an acknowledgment of paternity with the Department of Social Services in December 1989.

Following some difficulty with visitation, Mr. Duncan filed a paternity action in Utah in September 1991. In December 1991, Ms. Howard filed a motion to determine whether Mr. Duncan was Clel's father. Subsequently, Ms. Howard received blood test results and agreed that Mr. Duncan was Clel's natural father.

The Thordersons and Ms. Howard moved to Pennsylvania with Clel in April 1992. In May 1992, the Utah court issued a temporary visitation order giving Mr. Duncan the right to have Clel come to Utah for a visit. Pursuant to this order, Ms. Howard traveled with Clel to Utah twice during the summer of 1992 to allow Mr. Duncan to visit with Clel. Mr. Duncan testified he paid for both Ms. Howard and Clel's airfare for those visits. During the second visit, in September 1992, Ms. Howard decided to stay in Utah with Clel. In that same month, the court issued a temporary visitation order, pursuant to the parties' stipulation, which governed Mr. Duncan's visitation schedule with Clel. Mr. Duncan testified that Clel regularly visited him during this time, both during the week and on weekends. Clel would stay overnight with him at least once a week. However, in November 1992, just before Thanksgiving, Ms. Howard sent Clel back to Pennsylvania to spend the holidays with the Thordersons.

The Thordersons testified they noticed troubling changes in Clel when he returned to Pennsylvania in November 1992. They began taking Clel to a therapist in Pennsylvania, who diagnosed Clel with behavioral problems and symptoms of emotional disturbance. In December 1992, the Thordersons filed in Pennsylvania a petition for custody of Clel, which was granted. Ms. Howard, however, continued to live in Utah until June 1994, when she returned to Pennsylvania to live with the Thordersons.

In February 1993, Mr. Duncan filed in Utah a Motion for Order to Show Cause, asking either for temporary custody of Clel or for Ms. Howard to return Clel to Utah so that Mr. Duncan could resume his stipulated visitation with Clel. The Pennsylvania court held a telephone conference in April 1993 with the Utah court, resulting in an order entered in May 1993, which declared Utah would retain jurisdiction over the matter of Clel's custody. Ms. Thorderson was then joined as a party to this action in May 1993. During this time, in March 1993, Mr. Duncan married his present wife, Diane.

In June 1993, a hearing was held on Mr. Duncan's Order to Show Cause. In August 1993, the court held that Clel would remain with the Thordersons during the pendency of the action but that he would travel to Utah for a one-month visitation period. The Duncans traveled to Pennsylvania to take Clel back to Utah for the one-month visitation. Although the Thordersons initially did not allow Clel to leave with the Duncans, eventually, after going to court in Pennsylvania, the Duncans were able to transport Clel back to Utah for the visitation period.

During his one-month stay in Utah, a custody evaluation was performed on the natural parents, pursuant to the court's August 1993 order. The court also issued an order in December 1993 granting a motion for an independent custody evaluation of Ms. Thorderson. Also in December 1993, Mr. Thorderson was joined as a party to this action.

In January 1994, Mr. Duncan filed a Motion for Temporary Relief, seeking either temporary custody of Clel or a two-month visit from Clel in Utah. In March 1994, the court ordered that Mr. Duncan continue to enjoy the visitation rights previously granted to him by the court. Mr. Duncan filed another Motion for Temporary Relief in July 1994, seeking a one-month visit from Clel. The court then issued an order that Clel visit Mr. Duncan in Utah that summer. This order was complied with.

A three-day trial was held in September 1994. After hearing the testimony of numerous witnesses, including therapists, the parties, and some of the parties' family members, the trial court applied the parental presumption test set forth in Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982), and granted Mr. Duncan custody of Clel in February 1995. Ms. Howard and the Thordersons filed a Motion for Reconsideration, which the trial court denied. In compliance with the court's order, Clel was transferred into the Duncans' custody in June 1995. The court entered yet another order regarding visitation in October 1995. This order indicates that Ms. Howard and the Thordersons have returned to live in Utah and grants Ms. Howard and the Thordersons regular visitation with Clel.

The Thordersons and Ms. Howard each appealed the trial court's June 1995 Paternity Order and Findings and Conclusions. We consolidated their appeals for argument and decision.

ISSUES AND STANDARD OF REVIEW

The Thordersons argue that the parental presumption does not apply to this case and that Mr. Duncan's parental presumption was rebutted at trial. They also argue the trial court erred in denying their Motion for Reconsideration. Ms. Howard joins the Thordersons in appealing these issues. In addition, she argues the trial court erred by not adequately considering the possibility of a contingency custody arrangement by which she would be awarded custody of Clel if she lived with the Thordersons.

Trial courts have broad discretion in child custody cases. Linam v. King, 804 P.2d 1235, 1237 (Utah App.1991). Therefore, "[w]e will not disturb a trial court's custody determination if it is consistent with the standards set by appellate courts and supported by adequate findings of fact and conclusions of law." Roberts v. Roberts, 835 P.2d 193, 195-96 (Utah App.1992). However, we will set aside findings of fact that are clearly erroneous. Linam, 804 P.2d at 1238. A party challenging a trial court's findings of fact must "marshal all the evidence supporting the trial court's findings and then ... show the evidence to be legally insufficient to support the findings." Rudman v. Rudman, 812 P.2d 73, 79 (Utah App.1991).

ANALYSIS

The Parental Presumption

Much attention was given in this case to whether the Thordersons or Mr. Duncan would be able to provide the parenting and support needed by Clel, a child who has been in therapy due to emotional problems. Several evaluations were performed by experts. All but one of the experts--the expert appointed by the court--testified that, due to Clel's condition, he should remain with the Thordersons. These experts stated Clel has essentially lived all his life with the Thordersons and that he regards the Thordersons as his parents. A few of these experts even stated that removing Clel from the Thordersons would have devastating consequences and would cause lamentable and irreversible traumatic results for Clel.

However, Mr. Duncan, as Clel's father, enjoys the parental presumption. Under this presumption, when confronted with custody disputes between parents and non-parents, Utah courts presume it is in the child's best interest--in this case, Clel's best interest--to be in the custody of his parent. Hutchison v. Hutchison, 649 P.2d 38, 40 (Utah 1982).

This presumption recognizes "the natural right and authority of the parent to the child's custody...." State in re Jennings, 20 Utah 2d 50, 52, 432 P.2d 879, 880 (1967). It is rooted in the common experience of mankind, which teaches that parent and child normally share a strong attachment or bond for each other, that a natural parent will normally sacrifice personal interest and welfare for the child's benefit, and that a natural parent is normally more sympathetic and understanding and better able to win the confidence and love of the child than anyone else.

Id. This presumption always applies in favor of parents, even where, as in this case, the grandparents seek custody of the child.

The Thordersons and Ms. Howard argue the parental presumption does not apply in this case. However, each of the cases they cite in support of their argument can be distinguished from this case, and...