Elmer v. Elmer
| Decision Date | 03 May 1989 |
| Docket Number | No. 19827,19827 |
| Citation | 776 P.2d 599 |
| Parties | Walter R. ELMER, Plaintiff and Appellee, v. Theresa Ann ELMER, Defendant and Appellant. |
| Court | Utah Supreme Court |
Frank M. Wells, Ogden, for defendant and appellant.
Richard G. Hamp, Ogden, for plaintiff and appellee.
Theresa Ann Elmer and Walter R. Elmer were married in August, 1977. A boy and a girl were born during the marriage, Rex in 1978 and Stephanie in 1980. Theresa also had one other child from a prior marriage. In January, 1983, Walter obtained a default divorce from Theresa. The decree, based on a stipulation of the parties, gave Theresa custody of both children and required Walter to provide child support in the amount of $100 per month for each child. Some nine months after the decree was entered, Walter Elmer filed for a change of custody, and the trial court awarded him custody of the daughter, Stephanie, but not Rex. Theresa Ann Elmer appeals. She asserts that the evidence does not establish a substantial change of circumstances that warrants an examination of the child's best interests, that it is in the child's best interests for custody to remain with the mother, and that the change in custody should not have been made because of the tender years of the child. Walter Elmer cross-appeals the trial court's refusal to award him custody of Rex. We affirm.
Up to and including the divorce trial, Theresa Elmer was unemployed and received AFDC payments. During the months following the divorce, her gas and water were cut off for failure to pay the bills. For several months after the divorce, Theresa's boyfriend lived with her, but he left in July, 1983, when he learned that Theresa was pregnant. The home life given the four young children by Theresa was not a model. She had frequent parties in her apartment where illicit drugs were used, although she herself did not use them, and her children were allowed to stay up past their bedtime while the parties were going on.
At the time of the divorce and for several months thereafter, Walter was also unemployed. However, Walter's circumstances as a putative caretaker improved significantly. He found a job at Hill Air Force Base as a mechanic. Walter remarried, and he and his new wife live in a home which they own and where they live together with three of her children from a prior marriage, namely, a seventeen-year-old boy and two girls, fourteen and seven. Both Walter and his present wife work, but at different times of the day. When neither is home, one of her children babysits Stephanie. Walter's circumstances have improved to the point that he has a stable family life and offers Stephanie a greater likelihood of being able to provide nurturing bonds of support and security with others.
After the parties' divorce, the children stayed with Walter while Theresa attempted to get on her feet financially. In general, Theresa's ability to meet the emotional and psychological needs of Stephanie was lacking, in part because of her lack of resources and the demands made on her by the other two children. After the divorce, while Theresa was in a hospital to give birth to a fourth child, who had been fathered by her departed boyfriend, Walter again took care of Stephanie and Theresa's other children for a period of time. Theresa's babysitter arranged to have Walter take care of the children because the babysitter could not handle the children herself. Two weeks after the baby was born, Theresa requested the babysitter to contact Walter to ask if he would take care of Stephanie again. Walter indicated that he would be willing to take Stephanie, but that if he did, he intended to keep her and to seek custody. Knowing this, Theresa nevertheless gave Stephanie up to Walter. Later, Theresa had a change of mind and called Walter to obtain the child's return. Walter refused and told Theresa that he intended to file for a change of custody. Stephanie was three years old at the time.
Some three weeks after Stephanie was given to Walter and some nine months after the divorce, Walter filed a motion for a change of custody of both children. He contended inter alia that Theresa had permanently relinquished custody of Stephanie and that Stephanie had been abused. The trial court entered a preliminary order awarding temporary custody of Stephanie to Walter pending the outcome of the action. She has been in his custody since that time.
The evidence at the hearing on change of custody included evidence of possible abuse of Stephanie. The trial court found that if abuse had been inflicted on Stephanie, it was not inflicted by Theresa, but by her boyfriend. Walter and Theresa Elmer, various members of Walter's new family, and various friends testified as to the relative home environments and parenting abilities of Theresa and Walter and to Theresa's relinquishment referred to above. But no experts were called by either party to testify to the relative home environment or the parenting abilities of the parents.
The trial court found that there had been a change of circumstances and that it was in Stephanie's best interests for her formal custody to be changed to her father. The trial court wrote a memorandum opinion which reviewed the situations of the parties and found:
The mother's behavior after the divorce raised some child care problems. She had a number of parties at her home, during which illegal drugs were used in the childrens' presence. She also permitted a boyfriend to move in and remain with her. After the boyfriend discovered she was pregnant, he left. The mother was then under extreme stress. She had three small children, was alone, and was expecting the birth of a fourth child. She came from Texas and, as far as the Court is aware, had no relatives in this area. Her association with others was mostly with the plaintiff's sister and with plaintiff's new step-daughter, who is a teenager. She did have other friends, such as Mrs. Smith. The friends which she enjoyed were not sufficient to off-set her predicaments, and she found herself overwhelmed by stress.
The plaintiff/father has now remarried. He has married a woman who has had five children, two are now raised. He lives in a home where both parents are employed. The home is in an area where the classification of semi-rural may apply, and the home is suited as being a proper place in which to raise a family. The home is actually under the ownership of the plaintiff's new wife. There is a good deal of stability in the father's new family setting.
At the time the mother's new baby was expected, she was without an adequate babysitter. She requested that the father come and get the child and keep it while she was confined with the new birth. The father did this.
The mother [two weeks after the new child's birth] discovered that the stress factors in her life were intolerable. The babysitter called and informed the father that he was to come and get the girl again. The father informed the babysitter that he would do so, but that in the interests of the welfare of the child and his present family, the mother was to understand that if he came and got the child, it was his intention to keep the child permanently and exercise control over it. The mother did not formally agree to the change of custody of the child, but knew that that was the father's intention. The father did get the child and has had the child since that time. When the father brought the little girl home, the child was bathed. The father's new wife discovered bruises on the child's legs, which are demonstrated by the photographs in evidence. These photographs are in a place where a child might accidentally have such injuries, but they are also in a place where immediate speculation is invited as to whether or not the child had been abused. There is some evidence that the child suffered some abuse while the mother's boyfriend lived in the home, but there is no evidence that the mother has ever abused any of her children. The discovery of the injury on the child caused the father to further resolve that he would keep custody of the girl.
For a number of months past the father has remained steadily employed, as has his new wife, and they have organized their home in a reasonable fashion. They do extend at this time a better home environment than the mother offers.
The trial court found a change of circumstances based on Theresa's indication on several occasions that she could not handle Stephanie and her having asked Walter to take Stephanie into his care when Theresa knew and understood that Walter intended to keep her and seek a formal change of custody if he took her. The court also reached that conclusion on the ground that the addition of the newborn child to Theresa's family had unduly stretched her ability to cope with the children, in part "because there is no person to assist her in any way." The court further found:
The father now has physical surroundings and a family to involve the little girl in.
The Court finds the only change in circumstances that affects Rex is the mother's addition of one more child and the stress there involved.
The Court concludes that the best interest of the two children would be served by continuing Judge Hyde's previous order and making it permanent. The Court here makes such an order.
On this appeal, Theresa asserts that the trial court's findings are not supported by substantial evidence, but instead of seeking to demonstrate that in her brief, she simply reiterates the evidence she adduced at trial, without regard for the evidence produced by the other side, and emphasizes the conflicts between her evidence and the trial court's findings. We, of course, presume that the findings are correct and will not set them aside without a showing that they are clearly erroneous. Utah R.Civ.P. 52(a). Since Theresa has failed to demonstrate clear error, the findings stand.
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