Marchant v. Marchant

• Decision Date: 18 September 1987
• Docket Number: No. 860250-CA,860250-CA
• Citation: 743 P.2d 199
• Parties: Karen Schumann MARCHANT, Plaintiff and Appellant, v. Donald J. MARCHANT, Defendant and Respondent.
• Court: Utah Court of Appeals

Page 199

743 P.2d 199

56 USLW 2231

Karen Schumann MARCHANT, Plaintiff and Appellant, v. Donald J. MARCHANT, Defendant and Respondent.

No. 860250-CA.

Court of Appeals of Utah.

Sept. 18, 1987.

Craig M. Peterson, E. Paul Wood, Littlefield & Peterson, Salt Lake City, for appellant.

Hans Q. Chamberlain, Chamberlain & Higbee, Cedar City, for respondent.

Before ORME, DAVIDSON and GARFF, JJ.

DAVIDSON, Judge:

Plaintiff Karen Marchant and defendant Donald Marchant were married on September 8, 1967, when they were both college students. Plaintiff completed one more year of study before taking a job while defendant continued his education, received a degree in civil engineering, and completed two semesters of postgraduate studies. Defendant has been employed by the U.S. Forest Service for the majority of his working life while plaintiff did not return to the work force on a full time basis until late in the marriage.

The Marchants found they were unable to have children and consequently adopted two infants: a boy in April 1974 and a girl in April 1977. During 1976, the couple purchased a home and a farm in Central, Sevier County, Utah and resided there until their separation.

During 1982, plaintiff began working for a medical organization which maintained an office in Richfield, Utah. Defendant appears to have resented both his wife's employment and the working relationship between plaintiff and her male supervisor. The previous strains on the marriage grew correspondingly and the relationship deteriorated. There were attempts at counseling but these proved unsuccessful. During an argument concerning the state of the marriage, defendant struck plaintiff, causing her to lose consciousness. The final separation followed immediately.

Defendant vacated the family home during March 1985 and plaintiff filed her Complaint for Divorce on August 5, 1985. The court subsequently approved a stipulation entered into by the parties which provided that defendant have temporary possession of the real property, that he pay plaintiff temporary child support, and that plaintiff have temporary custody of the children subject to defendant's visitation rights. Plaintiff and the children then moved from Central to Salt Lake City, where plaintiff's sister and her child resided with them.

Trial to the court was held on June 18, 1986. The Decree of Divorce awarded custody of the children to defendant. There was no award of alimony or child support. Real and personal property was divided and plaintiff was awarded a $6,000.00 interest in defendant's retirement, payable over a ten-year period at $600.00 per year with accrued interest at the rate of 8% per annum. Defendant regained custody of the children on July 1, 1986, and returned them to their previous home in Sevier County. Plaintiff filed her Notice of Appeal on September 24, 1986.

Several issues are presented to this Court for review: (1) are there sufficient findings of fact upon which to base the award of custody; (2) was there an equitable distribution of defendant's retirement asset; (3) was it an abuse of discretion for the court to specify a judgment interest rate of 8% per annum rather than that provided by statute; (4) did the court abuse its discretion by not awarding alimony to plaintiff; and (5) did the court err in not awarding plaintiff the value of her previous personal injury awards prior to the distribution of the parties' assets?

Because the trial court's findings of fact are essential to our analysis, we find it necessary to recite the following findings of that court:

3. The Court finds that Defendant has treated the Plaintiff cruelly, both mentally and physically, and that the parties simply cannot continue to maintain the marital relationship. By reason of the same, Plaintiff is entitled to a Decree of Divorce, final and effective upon entry....

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5. In determining what is in the best interests of the children for purposes of determining custody, the Court makes the following specific findings:

A. That both the Plaintiff and Defendant are good parents, and that both parties could be awarded custody of the minor children.

B. That the marriage entered into between Plaintiff and Defendant was broken by the actions on the part of Plaintiff, which were not justified.

C. That when the Plaintiff vacated the family home in Central, Utah, and moved to Salt Lake City, Utah, in September of 1985, she moved into an apartment and in approximately November or December of 1985, her sister, another woman who is divorced, moved in with her, together with her minor child. That the standard of living under which Plaintiff has been residing while having the temporary custody of the children in Salt Lake City, Utah, is not what it should have been nor was it in the best interests of the children.

D. That during the latter part of the marriage between Plaintiff and Defendant, Plaintiff became involved with another man and this fact had an influence with the Court in determining what is in the best interests of the minor children.

E. That during the latter years of the marriage, Plaintiff's lifestyle changed and that change was not in the best interests of the family unit, but rather the change was pursuant to Plaintiff's desires and for her benefit to the exclusion of the family unit.

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8. The Court finds that Plaintiff is not entitled to alimony.

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10. The Court finds that as of June 18th, 1986, Plaintiff receives as net income the sum of $1,321.00 per month, and Defendant receives net income in the sum of $2,114.00 per month.

11. The Court finds that Defendant has a vested interest in his retirement by reason of his U.S. Government employment in the approximate sum of $18,000, as of June 18th, 1986, and that Defendant should be awarded all of the right, title and interest in said retirement, provided, however, that Plaintiff is entitled to $6,000 by reason of said vested interest. Said sum shall be payable by the Defendant to the Plaintiff over a ten year period, together with interest at the rate of 8% per annum, payable at the rate of $600.00 per year, together with accrued interest....

FINDINGS OF FACT

Utah R. Civ. P. 52(a) states that findings of fact "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." We are bound to follow that rule together with the guidance of the Utah Supreme Court in the recent case of Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987), in which the Court reviewed the case law concerning findings of fact. There the Court stated: "Failure of the trial court to make findings on all material issues is reversible error unless the facts in the record are 'clear, uncontroverted, and capable of supporting only a finding in favor of the judgment,' " and the findings " 'should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached' " (citations omitted). Particularly important is the Court's citation of Smith v. Smith, 726 P.2d 423, 426 (Utah 1986), a child custody matter, in which it declared "[p]roper findings of fact ensure that the ultimate custody award follows logically from, and is supported by, the evidence and the controlling legal principles." We understand this to mean that a custody award must be firmly anchored on findings of fact that (1) are sufficiently detailed, (2) include enough facts to disclose the process through which the ultimate conclusion is reached, (3) indicate the process is logical and properly supported, and (4) are not clearly erroneous. See also Sanderson v. Tryon, 739 P.2d 623, 626 (Utah 1987) and Rucker v. Dalton, 598 P.2d 1336, 1338 (Utah 1979). If this is not accomplished by the trial court, the issue of custody must be reversed unless the record itself supports the award to the standard reiterated in Acton.

CUSTODY AWARD

"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." Utah Code Ann. § 30-3-10 (1984). No one set list of factors concerning the best interests of the child can govern custody determinations in all cases. Smith, 726 P.2d at 426. In Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986), the Supreme Court wrote that the choice in "competing child custody claims" should be based on "function-related factors." A complete list of those factors was not set down but the following were determined to be prominent: (1) "the identity of the primary caretaker during the marriage," (2) "the identity of the parent with greater flexibility to provide personal care for the child," (3) "the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy," and (4) "the stability of the environment provided by each parent."

We believe that the trial court did not consider the appropriate factors in making its determination of what was in the best interests of the children. A review of the findings shows that the court based its conclusion that defendant was the proper custodial parent on the outmoded concept of fault on the part of plaintiff. Humphreys v. Humphreys, 520 P.2d 193, 194 (Utah 1974). The findings are neither sufficient nor are they logical in determining the best interests of the children. Rather, they are flavored with bias against divorced women, an urban environment, and women who pursue other than the traditional role of a homemaker. The references to plaintiff's standard of living in Salt Lake City as being "not what it should have been" and a change in her "lifestyle" which was not "in the best interests of the family unit" are conclusory and seem to imply that a nebulous, higher standard should be applied to mothers seeking custody of their children in a divorce action.

Our reading of the trial transcript...