Hansen v. Hansen, 860198-CA

• Decision Date: 12 May 1987
• Docket Number: No. 860198-CA,860198-CA
• Citation: 736 P.2d 1055
• Parties: A. Lamar HANSEN, Plaintiff and Appellant, v. Cynthia Ann HANSEN, Defendant and Respondent.
• Court: Utah Court of Appeals

Page 1055

736 P.2d 1055

A. Lamar HANSEN, Plaintiff and Appellant, v. Cynthia Ann HANSEN, Defendant and Respondent.

No. 860198-CA.

Court of Appeals of Utah.

May 12, 1987.

Randall J. Holmgren, Shields, Shields & Holmgren, Salt Lake City, for A. Lamar Hansen.

John E. Schindler, Price, for Cynthia Hansen.

Before JACKSON, GARFF and BILLINGS, JJ.

OPINION

JACKSON, Judge:

In his appeal of an April, 1986, judgment and decree of divorce, appellant A. Lamar Hansen asserts that the trial court erred in: (1) ordering him to pay $140 per month in child support; (2) ordering him to pay a $3,000 debt to his father; and (3) using an unconstitutional presumption in awarding custody of the parties' young son to respondent, Cynthia Ann Hansen. He also challenges the sufficiency of the court's findings of fact to support the custody award. We affirm the judgment below.

The trial court is permitted considerable discretion in adjusting the financial interests of the parties to a divorce, and its actions are entitled to a presumption of validity. Argyle v. Argyle, 688 P.2d 468, 470 (Utah 1984); Savage v. Savage, 658 P.2d 1201, 1203 (Utah 1983). We will not upset the trial court's apportionment of financial responsibilities in the absence of manifest injustice or inequity that indicates a clear abuse of that discretion. Cf. Turner v. Turner, 649 P.2d 6, 8 (Utah 1982).

Appellant first contends that he should have been ordered to pay only $78.00 per month in child support rather than $140.00. This argument is based on his monthly income of $1,700 and an obligation to pay child support for four children from a previous marriage. He also argues that $78.00 is the proper support amount because it is shown on a schedule allegedly used in the Seventh Judicial District.

The schedule was not offered as evidence at trial. If offered, its admissibility would be questionable. The record reveals that the trial judge had properly before him lists of the parties' myriad debts and meager assets, their tax forms, financial declarations, paycheck stubs, and monthly household expenses. The judge was informed of their respective earning capacities and the fact that respondent had been receiving public assistance. He evaluated the support needs of the minor child and the parties' relative abilities to meet them. Appellant had been paying court-ordered temporary child support of $140 since May, 1985, and his payments were current at the time of trial. He made no attempt to demonstrate an inability to continue making those payments. We hold it was not an abuse of discretion for the court to set child support at $140 per month.

Neither are we persuaded that the trial judge abused his discretion in dividing the parties' substantial debts. Appellant complains that the part of the decree ordering him to pay one particular $3,000 debt to his father is inconsistent with a previous order of the court directing Cynthia Ann Hansen to pay all debts arising out of fines owed for her previous criminal convictions. There was, however, conflicting evidence about whether the loan of $3,000 was used to pay her bail or to pay household expenses. The trial judge considered the nature of all the debts, the parties' relative abilities to repay them, and their conflicting claims about the use made of the $3,000 loan. We see no manifest injustice or inequity in the judge's allocation of debts between the parties.

Appellant next contends that the trial court used an unconstitutional preference for the respondent in awarding her custody of their 30-month-old son. Such a gender-based custodial preference for mothers of small children, called the "tender years" presumption, was explicitly disapproved by the Utah Supreme Court in Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986), three months after the Hansens' divorce trial.

At the trial, each party presented evidence of the other's lack of fitness as a proper custodian. This included evidence of appellant's physical abuse of the respondent, as well as his former wife, and evidence of respondent's convictions for money order theft, check alteration, and making a false statement on a loan application. Appellant claims that a gender-based preference was used to tip the scales in respondent's favor, based on one highlighted sentence in the judge's ruling from the bench:

Custody of the child will be awarded to the defendant. The reason for that is as follows:

The court finds that the defendant is the primary care-giving parent. The only thing anybody can really say bad about this party is that she has been in trouble.

On the other hand, by the plaintiff's own admission he has committed, I think, six different assaults, which has got to count for something. So if they are going to start painting each other black, I think the brush will fit both. I don't find any reason to deprive her of custody. It seems to have worked. I don't see anything wrong with her as a custodial parent. From the testimony that's been given here, particularly by the preschool lady, she has been working very diligently in taking care of this child, and the court finds that she is a fit and proper person and does award custody to her.

We do not believe the emphasized remark shows any use of an improper preference in awarding custody to respondent. The trial judge was referring to the fact that, at the time of trial in April, 1986, the child had been in the sole custody and care of his mother since the parties separated in February, 1985. His reference to not depriving her of custody reflects this fact and shows that he considered which parent the child had lived with during the pendency of the divorce. Although not determinative, this is one of many relevant factors in a custody determination. Pusey, 728 P.2d at 120.

The judge's oral findings quoted above, recorded in court in the presence of the parties, are also germane to the final issue raised by appellant. He asserts that the written findings of fact pertaining to custody are insufficient to show that the award was based on a determination of the child's best interests. He relies on Smith v. Smith, 726 P.2d 423 (Utah 1986) and Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982).

In Smith, the Utah Supreme Court determined that the trial court's written findings of fact in a custody dispute were inadequate to afford the noncustodial parent a meaningful appellate review of the custody award. Smith, 726 P.2d at 426. The Court described adequate factual findings as follows:

To ensure that the trial court's custody determination, discretionary as it is, Hutchison v. Hutchison, 649 P.2d at 41, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why the ultimate conclusion is justified.

Smith, 726 P.2d at 426.

In the case before us, there is only one written finding of fact that relates to child custody 10. Defendant...