Motzkus v. Motzkus
| Decision Date | 28 September 1965 |
| Docket Number | No. 10315,10315 |
| Citation | 17 Utah 2d 154,406 P.2d 31 |
| Parties | d 154 Erwin Dale MOTZKUS, Plaintiff and Appellant, v. Linda Joy MOTZKUS, Defendant and Respondent. |
| Court | Utah Supreme Court |
Leland S. McCullough, Salt Lake City, for appellant.
Dean R. Mitchell, Salt Lake City, for respondent.
Plaintiff, Erwin Dale Motzkus, petitioned the court in a supplemental proceeding in the above captioned divorce action for the custody of his son, Lyndon Dale, age 8. At the conclusion of the plaintiff's evidence, the court granted defendant's motion to dismiss the proceeding and plaintiff appeals.
The parties had been divorced on the 4th of December 1958 in the District Court of Salt Lake County, and the custody of the boy had been given to his mother the defendant, Linda Joy Motzkus. In April of 1964 the defendant mother asked the plaintiff to take the boy because she had been experiencing considerable trouble with him. Particularly, that even at his age he did not have control and/or discipline with respect to his bowel movements and urination and was not doing well in school. The plaintiff took the boy in his home and has kept him from that time until this hearing in January of 1965.
According to the evidence, and the reasonable inferences to be drawn therefrom, these facts appear: the plaintiff has remarried, has three more children and has a good home in which Lyndon is accepted and is comparatively well-adjusted; he is doing better in school and appears to have made considerable progress in overcoming the difficulties above referred to. The latter facts are confirmed by the testimony of the school principal and the school teacher.
The defendant motion was in effect a challenge: that the plaintiff's evidence had not made a prima facie case for custody. Inasmuch as it was granted, we review the evidence in the light most favorable to him. 1 We appreciate that there is a presumption that the defendant mother is a fit and proper person to have the custody of the boy, and that the prior decree should not be disturbed unless some justification for doing so is shown. 2 But upon the basis of the facts here appearing: that defendant recognized her own difficulties and requested the plaintiff's help; that he took the child into his home where definite improvement was effected, we are inclined to the view that this would justify the requested change in custody, in the absence of any evidence to the contrary. That being so, in the ordinary civil case we would be...
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Hogge v. Hogge
...to have based their decisions solely on the "welfare" or "best interest" of the child, Nielsen v. Nielsen, supra; Motzkus v. Motzkus, 17 Utah 2d 154, 406 P.2d 31 (1965), or partly on the presence or absence of changed circumstances and partly on the best interests of the child. Smith v. Smi......
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