Hardy v. Hardy

• Decision Date: 20 June 1989
• Docket Number: No. 870348-CA,870348-CA
• Citation: 776 P.2d 917
• Parties: Colin Edward HARDY, Plaintiff and Respondent, v. Nellie Peterson HARDY, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 917

776 P.2d 917

Colin Edward HARDY, Plaintiff and Respondent, v. Nellie Peterson HARDY, Defendant and Appellant.

No. 870348-CA.

Court of Appeals of Utah.

June 20, 1989.

John B. Anderson, William A. Somppi, Allan M. Metos, Salt Lake City, for defendant and appellant.

John F. Clark, Salt Lake City, for plaintiff and respondent.

Before DAVIDSON, GARFF and ORME, JJ.

GARFF, Judge:

Defendant/appellant, Nellie Peterson Hardy, appeals the trial court's order which modified the divorce decree transferring custody of the parties' minor child, S., from her to plaintiff/respondent, Colin Edward Hardy. We affirm in part and remand for findings consistent with this opinion.

The parties were married in 1982 and had one child, S. During this marriage, both parties engaged in drug and alcohol abuse. They were divorced on April 8, 1985, stipulating that appellant was a fit and proper person to have custody of S. The trial court was unaware at that time that appellant was addicted to cocaine and that respondent was an alcoholic.

In November 1985, respondent successfully completed a hospital alcoholism treatment program, and was alcohol-free at the time of this action. However, he used marijuana twice in April 1986.

In the summer of 1985, appellant substantially increased her cocaine usage and became romantically involved with Rudy Lema, a drug dealer. In February 1986, appellant quit her job because of cocaine usage. During this time, appellant neglected S. In the beginning of 1985, S. had been a bright, outgoing, happy three-year-old who made friends easily. By the end of 1985 and during the first three months of 1986, however, she had become withdrawn, standoffish, depressed, and exhibited other disturbed behavior as a result of appellant's neglect.

On April 18, 1986, at 1:00 p.m., a highway patrolman stopped appellant for speeding and driving erratically on the freeway in Utah County. He found S. in the vehicle, unrestrained by a seatbelt. Because appellant was in a confused, excited, incoherent state and appeared to be under the influence of drugs, the patrolman transported the two to the Timpview Mental Health Unit in Provo and involuntarily committed appellant. Appellant and S. were then transported to the University Hospital in Salt Lake City. Appellant's attending physician believed that she was suffering from chronic cocaine abuse syndrome in which delusional disorders and severe impairment might be present for weeks or months, and that appellant was in no condition to care for S.

University Hospital personnel informed respondent that appellant had been admitted to the hospital and that if he was not able to pick up S., the hospital would have to place her in a shelter home. Respondent agreed to take S. and to return her to appellant's custody upon her discharge. Instead of returning S. to appellant's custody, however, he took S. home with him that night and subsequently moved her to his parents' home in Saratoga, California.

On April 24, 1986, appellant discharged herself from the hospital against medical advice, and returned to her parents' home in Scottsdale, Arizona. She subsequently admitted herself to Terros, an outpatient drug treatment center in Phoenix, Arizona, where she completed a twenty-one day detoxification program.

On May 8, 1986, respondent filed a motion for modification of the 1985 custody order, requesting custody of S. On May 19, 1986, the trial court heard respondent's motion, and, in a preliminary injunction, ordered both parties to undergo home studies and psychological evaluations. It also awarded temporary custody of S. to appellant so long as she resided with her parents in Scottsdale, Arizona, and forbade either party to abuse drugs in S.'s presence.

On September 5, 1986, appellant's counsel withdrew. Appellant subsequently obtained representation from the Arizona-based Legal Aid Society.

In September 1986, the court appointed a social worker, Frances R. Purdie, to conduct home studies and a licensed psychologist, Dr. Barbara Liebroder, to conduct psychological evaluations of the parties.

The case was set for trial on March 2 and 3, 1987, but, upon appellant's motion, was continued until May 7 and 8, 1987 so that appellant's new counsel from the Legal Aid Society, David Hartwig, could prepare for trial.

On February 27, 1987, respondent was granted extended visitation with S. for forty-five days from March 4, 1987 to April 14, 1987. Liebroder evaluated S. a second time immediately following her return from this visitation.

On March 28, 1987, appellant married Robert Bruce Blake in Arizona. Respondent, Purdie, and Liebroder were unaware of her remarriage until the day before trial. Consequently, no home or psychological studies were done involving Blake.

Appellant's attorney, Hartwig, left the Legal Aid Society shortly before trial. Appellant's case was then assigned to other Legal Aid Society attorneys. Despite his pending departure, Hartwig made no formal motion to continue the May trial date, but, one week before trial, contacted the judge by telephone to ask for a continuance, which the judge denied.

The matter came to trial on May 7, 8 and 12, 1987 before the same judge who had made the initial custody award. Hartwig, despite his departure from Legal Aid, was present for part of the trial and conducted much of the examination and cross-examination on the second day of the trial.

Purdie, on the basis of her home evaluations performed on the parties and their parents, testified that S. was emotionally deprived, and that, even though appellant and her parents obviously cared for S., their concern and caring were not expressed in such a way that would help S. to realize her full potential. She testified, instead, that S. was being emotionally damaged in her present environment and that she would have more of her emotional needs met in respondent's custody.

Liebroder, who had performed psychological evaluations on each of the parties, two on S., and a screening evaluation on respondent's new wife, testified that appellant's drug use, because it was being treated and was currently under control, was not appellant's most serious problem, although she had a poor prognosis for continued abstinence. Liebroder concluded that appellant's most serious problems were that she was extremely self-centered and had difficulty empathizing with, understanding, and caring in a significant way for other people, and that these were symptoms of a chronic, change-resistant character disorder. She noted no really significant interaction between appellant and S., who had an unusually negative self-image.

Liebroder indicated that S. appeared to be suffering from a lack of attention and nurturing. She stated that S.'s needs for a structured environment, adequate stimulation, and interaction with other children were not being met, and that she had suffered serious emotional damage while in appellant's custody. She concluded that S. was in serious jeopardy of sustaining permanent emotional damage along with loss of use of her intellectual potential and personality, and had already adopted, at age four, a very non-achieving lifestyle.

Liebroder testified that respondent, on the other hand, had a great deal of energy and determination to succeed and was a disciplined person. She found that his relationship difficulties were related to his alcoholism, which was currently under control, and that he had the ability, stability, and structured lifestyle to be a good parent for S. Regarding S.'s April visitation with respondent, Liebroder indicated that S. had changed behaviorally for the better, that her intelligence scores had jumped twenty points, and that these changes were not attributable to chance, but were reflective of the time S. had spent in respondent's custody.

Dr. Lindeman, a psychologist hired by appellant, testified that appellant's personality was within normal limits and that, contrary to Liebroder's study, appellant did not have any serious psychological or emotional problems. He indicated that he was pleasantly surprised with S.'s relationship with appellant, and that appellant not only did not have the personality disorder diagnosed by Liebroder, but that Liebroder's study did not justify such a diagnosis. ¹ He also noted, however, that appellant was in the middle to high risk range for further drug abuse.

Liebroder rebutted Lindeman's testimony, stating that he used a very cursory battery of tests to arrive at his conclusions as opposed to her large variety of in-depth tests, and because Lindeman's observation of S. took place two weeks after she returned from visitation with respondent, the behavior he observed was attributable to the visitation.

In summary, Liebroder believed that respondent was more likely than appellant to remain alcohol and drug free over time. Because she found that S.'s social and psychological needs were not being met, and that, at age four, she was already moving into a non-achieving, manipulative life pattern as a result of the current custodial situation with appellant, Liebroder recommended that respondent take custody of S.

During the trial, respondent's counsel requested publication of Rudy Lema's deposition rather than bringing him in as a witness, because, at that time, he was a federal prisoner in transit to a federal penitentiary. However, the judge refused to publish the deposition, which he had read prior to trial, because respondent's counsel had made no attempt to serve process on Lema.

The court excluded some proffered evidence during the trial. Most of this evidence was proffered by respondent to show, in greater detail, the nature and extent of appellant's cocaine addiction. Appellant's only disallowed evidence was a letter written by her therapist and a home study performed by her counselor. The judge disallowed the letter because appellant had not timely provided it to respondent, and the home study because he found...