Humphreys v. Humphreys
| Decision Date | 12 March 1974 |
| Docket Number | No. 13445,13445 |
| Citation | 520 P.2d 193 |
| Parties | Carol B. HUMPHREYS, Plaintiff and Appellant, v. Gary L. HUMPHREYS, Defendant and Respondent. |
| Court | Utah Supreme Court |
Pete N. Vlahos, Ogden, for plaintiff and appellant.
Roger S. Dutson, Ogden, for defendant and respondent.
Plaintiff Carol B. Humphreys appeals attacking only those portions of a divorce decree which (1) awarded defendant husband custody of their four-year old (now five) son, and (2) made what she contends is an inequitable disposition of their property.
The marriage of the parties in July of 1965 was a second marriage for both. The plaintiff had two children, ages eight and six, and the defendant three, ages eight, six and three; (now all are nine years older); and they have one son Joe Darin, age now five years, issue of this marriage. The marriage lasted eight years. But it appears to have been in difficulty for a considerable time, perhaps nearly from the beginning. It would serve no useful purpose to detail the troubles which lead to the regrettable, but what appears to be inevitable, conclusion of divorce, which neither party now questions.
The matter of the gravest concern to the parties, the trial court, and this court, is the custody of little Joe Darin. In contending that the trial court abused its discretion in failing to award her his custody, plaintiff quotes in her brief and places reliance on Sec. 30--3--10, U.C.A.1953, as it formerly read:
In any case of separation of husband and wife having minor children, the mother shall be entitled to the care, control, and custody of all such children; . . . if it shall be made to appear to a Court of competent jurisdiction, that the mother is an immoral, incompetent, or otherwise improper person, then the Court may award the custody of the children to the father or make such other order as may be just. (Emphasis added.)
It is significant to observe that that section was amended by Chapter 72, S.L.U. 1969, by deleting the provision requiring that the mother be 'an immoral, incompetent or otherwise improper person . . .' as a condition precedent to awarding custody to the father. In the place of the above quoted language, that section now provides:
In any case of separation of husband and wife having minor children, or whenever a marriage is declared void or dissolved the court shall make such order for the future care and custody of the minor children as it may deem just and proper. In determining custody, the court shall consider the best interests of the child and the past conduct and demonstrated moral standards of each of the parties and the natural presumption that the mother is best suited to care for young children . . .. (Emphasis added.)
The effect of this change is to minimize the often ill-advised and abortive attempts to besmirch the mother in order to obtain custody of children; and to enlarge the discretion of the trial court to act in the best interests of the child. 1 Yet it retains the guideline concerning the natural presumption favoring the mother's care for young children.
What we have said above about not unduly burdening this opinion nor besmirching the parties with their tribulations and frailties is applicable on this issue. However, because it is so unusual to grant custody of a four-year old child (now five) to the father, we make this summary observation: There appears to be an adequate basis in the evidence for the trial court's conclusion that because of the somewhat erratic and immature conduct of the plaintiff; and the comparatively more mature and satisfactory home situation of the defendant and his children, there seems to be a sufficient justification for the order of custody made as being in the best interest and welfare of the little boy. It is also appropriate that the plaintiff is given such rights of visitation as can practically be arranged; and concerning which both parties must exercise a high degree of forbearance and cooperation for the benefit of each other, and more especially for their little son. It is also worthy of note that the matter of custody of a minor child is never an absolute and permanent thing, but is subject to review and possible change or modification if changing circumstances should so warrant.
We turn to the problem of the arrangement of the property rights. In view of the decree as to custody, the court made no order as to support money; and similarly awarded no alimony. The plaintiff complains of inequity in the division of the personal property: the family automobiles, boat, trailer and furniture....
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