Pennington v. Pennington, 20062

• Decision Date: 12 August 1985
• Docket Number: No. 20062,20062
• Parties: Sandy PENNINGTON (Munro), Plaintiff and Appellant, v. Michael John PENNINGTON, Defendant and Respondent.
• Court: Utah Supreme Court

Page 254

711 P.2d 254

Sandy PENNINGTON (Munro), Plaintiff and Appellant, v. Michael John PENNINGTON, Defendant and Respondent.

No. 20062.

Supreme Court of Utah.

Aug. 12, 1985.

Kellie F. Williams, Salt Lake City, for plaintiff and appellant.

Kent T. Yano, Salt Lake City, for defendant and respondent.

HOWE, Justice.

Appellant, Sandy Pennington (Munro), appeals from an order denying her petition to modify a divorce decree to grant her custody of one of the parties' minor children.

Appellant and Michael John Pennington, respondent, were divorced in July of 1981. Because appellant was expecting their second child and was experiencing some physical and emotional problems, their stipulated divorce decree awarded respondent temporary custody of their minor child, Michael Hancock Pennington. Appellant was designated to have custody of their expected child when born (Mark Pennington). The decree further provided that the court would review custody of the children in eighteen months. Six months after entry of the decree, however, appellant petitioned for its modification, seeking to be awarded custody of both children. She alleged that she had remarried, moved into a home, and recovered both physically and emotionally. Although respondent initially objected to appellant's petition as premature, he withdrew that objection because the petition was not heard until after the eighteen months had passed. An evaluation by the Division of Family Services favored placing both children in appellant's custody. After hearing the evidence, the trial judge awarded respondent permanent custody of Michael and awarded appellant permanent custody of Mark.

Appellant contends that the trial court erred in requiring her to establish the threshold change of circumstances as set forth in Hogge v. Hogge, Utah, 649 P.2d 51 (1982), before it would reach the question of the best interest of the children. We have read the entire record and are unable to find any instance where the court required appellant to show a change of circumstances. We note, however, that appellant's own petition to modify the decree and the manner of appellant's presentation of the evidence both sounded in an attempt to meet the threshold Hogge test. This may be attributable, in part, to appellant's initial objective, i.e., to modify the divorce decree through the petition she filed a full year prior to the running of the eighteen months which the trial court had set for review. But the court in no way limited appellant's attempts to show that it was in the children's best interests to be placed in her custody. It is true that the trial court found that there had been no material change in circumstances. Even though the court erred in concerning itself with that issue, since the initial award of custody was expressly designated to be only temporary, it was not prejudicial because the court also found that it was in the best interests of Michael to remain with his father.

Appellant also urges us to find an abuse of discretion in the trial court's holding that the best interests of Michael would be served by his remaining in respondent's custody. In support of her contention, she points to the court-ordered evaluation by the Division of Family Services which recommended placing both children in her custody, to this Court's long standing preferences to avoid splitting siblings and to place them in the mother's custody, and to the lack of facilities and isolation of Ticaboo, Utah, where respondent resides.

Although the Division of Family Services evaluation recommended that both children be placed in appellant's custody, the state sociologist who conducted the test admitted that Ticaboo's size and isolation were the main reasons for his recommendation. He further testified that he had no objection to respondent's parenting ability and felt that no harm would result by leaving Michael in respondent's custody. The record discloses that the evaluator was unfamiliar with the extent of the recreational facilities and medical attention available to Ticaboo residents. The trial judge also pointed out that appellant similarly resided in a rural part of the state.

We have long expressed a preference for placing very young children in the mother's custody. Jorgensen v. Jorgensen, Utah, 599 P.2d 510 (1979). However, the preference operates only when all other things are equal. The rule established by the Legislature in U.C.A., 1953, 30-3-10 requires that the best interest of the child be given primary consideration. "Whenever ... any circumstances in the case preponderate in favor of the husband, all things are not equal." Jorgensen, at 511. Respondent...