Forbush v. Forbush

• Decision Date: 13 April 1978
• Docket Number: No. 15245,15245
• Parties: Frances Rae FORBUSH, aka Frances F. Klein, Plaintiff and Appellant, v. Richard F. FORBUSH, Defendant and Respondent.
• Court: Utah Supreme Court

Page 518

578 P.2d 518

Frances Rae FORBUSH, aka Frances F. Klein, Plaintiff and Appellant, v. Richard F. FORBUSH, Defendant and Respondent.

No. 15245.

Supreme Court of Utah.

April 13, 1978.

James R. Brown of Jardine, Johnson & Baldwin, Salt Lake City, for plaintiff and appellant.

Kent M. Kasting of Adams, Kasting & Anderson, Salt Lake City, for defendant and respondent.

CROCKETT, Justice:

Plaintiff Frances Forbush challenges an order supplemental to a divorce decree with awarded her only $25 per month as support for the parties' 14-year old son of whom she has custody. The divorce was granted in November 1970 and plaintiff was given custody of their two minor children, Bevan, born June 17, 1963, and Jason, born January 14, 1965. The portion of the decree material here ordered the defendant Richard Forbush to pay $75 per month for each child as support money. Two years later, in November 1972, by stipulation of the parties the custody was changed to their father, defendant Richard. It provided that the mother have a three-month summer visitation privilege and that defendant pay $100 per month support money for each child during that period.

Subsequently plaintiff married again and filed a petition to obtain custody of the boys. Pursuant to hearing thereon and in accordance with the wishes of the boys, on February 1, 1977, the trial court ordered that the older boy Bevan be placed in the custody of the plaintiff, and that the younger boy Jason remain with his father, with reciprocal visitation rights, but no provision was made for support money. It was urged upon the court that a father cannot contract away his obligation to support his child, and should not be relieved entirely of that duty, referring to the case of Riding v. Riding. ¹ Consequently, the court on May 16, 1977, amended the order to require the defendant to pay plaintiff $25 support money for Bevan.

In regard to the rule stated in Riding, we make this comment: it is sound as applied to the facts of that case. But that does not mean that, where the circumstances so justify, the court cannot order either parent to support children and relieve the other. The principal considerations in making such a determination are the needs of the child and the ability of the parent to provide such support. ² Once there has been appropriate inquiry and determination made of those facts and the appropriate order entered, the court will not arbitrarily make a different order, but will do so only under appropriate procedure and where it is shown that there is some substantial change to justify changing the decree. ³

In applying the rules just stated above to this controversy, the first problem that arises is that there is no transcript of the evidence brought to this Court. Accordingly, we agree with the defendant's assertion that we are therefore obliged to assume that the trial court's findings are correct. ⁴ However, it is true that the findings must themselves be sufficient to provide a sound foundation for the judgment, and conversely, that any proper judgment can only be entered in accordance with the findings. ⁵ It is then necessary to look to the findings to determine whether there is such a basis therein to justify the judgment.

The findings recite that at the time of the November 1972 order, when defendant was required to pay $100 per month for the support of each child, he was earning about $5,300 per year. But at the time of the May 16, 1977, order which required him to pay only $25 per month to support Bevan (who is now almost 15 years old) he was making about $18,000 per year. In contrast, it is significant that there is no finding of fact as to the earnings or income of the plaintiff. They do state that she is a housewife and that she is unemployed; and that there is no promise from her present husband to support Bevan. It should also be said, that there is a recital among the conclusions of law that the plaintiff has the financial means to support Bevan. But there is nothing in any finding of fact to support that conclusion of law. ⁶

In consequence of what has been said above, we can see no basis in the findings of fact to indicate either an increase in the plaintiff's income, or a decrease in the defendant's income, or in the needs of the child, to justify the reduction of support money for Bevan from $100 to $25 per month. In view of...