Riche v. Riche

• Decision Date: 13 December 1989
• Docket Number: No. 890090-CA,890090-CA
• Citation: 784 P.2d 465
• Parties: Jacqueline Sue RICHE, Plaintiff and Respondent, v. Derald L. RICHE, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 465

784 P.2d 465

Jacqueline Sue RICHE, Plaintiff and Respondent, v. Derald L. RICHE, Defendant and Appellant.

No. 890090-CA.

Court of Appeals of Utah.

Dec. 13, 1989.

Kenneth M. Hisatake (argued), Salt Lake City, for defendant and appellant.

Joane Pappas White (argued), Price, for plaintiff and respondent.

Before BENCH, BILLINGS and GREENWOOD, JJ.

OPINION

BILLINGS, Judge:

The appellant, Derald L. Riche ("Husband"), and the respondent, Jacqueline Sue Riche ("Wife"), filed for divorce after fourteen years of marriage and four children. Prior to the divorce trial, the trial court conducted a full-day evidentiary hearing to determine temporary custody, use of the family home, and support. Husband alleged Wife had abused and neglected their children and thus he sought their custody. Wife denied his claims. The court found no evidence of abuse or neglect of the children and awarded Wife temporary custody.

Again at trial, Husband made numerous claims as to Wife's unfitness as a custodial parent and she responded with contrary evidence. The court found that it was in the children's best interests that custody be awarded to Wife and entered specific findings concerning the factors which led to its decision. The court also entered a liberal visitation order.

Husband filed a document labeled Motion for New Trial and/or Motion to Amend Findings and/or Motion to Alter or Amend Judgment. The court denied the motions, noting that the motions were not supported by an affidavit nor had Husband shown cause as to why he did not present the matters contained in the motions to the court at the time of trial.

Husband appeals, claiming that the trial court erred in (1) refusing to take judicial notice of evidence presented in the hearing on temporary custody; (2) placing undue emphasis on the primary caretaker factor and failing to consider other relevant evidence at trial; (3) failing to obtain an investigative report on the issue of alleged child abuse pursuant to Utah Code Ann. § 30-3-5.2 (1988); and (4) failing to enter specific findings of fact in support of the visitation order. Wife claims this appeal is frivolous and that, in any event, she should be awarded her attorney fees on appeal. We affirm, but remand for a determination as to whether Wife should be awarded attorney fees on appeal.

CUSTODY

We give great deference to the trial court's findings of fact and do not overturn them unless they are clearly erroneous. In re Estate of Bartell, 776 P.2d 885, 886 (Utah 1989); State v. Walker, 743 P.2d 191, 192-93 (Utah 1987); Utah R.Civ.P. 52(a). We defer to the trial court to judge the credibility of witnesses. Utah R.Civ.P. 52(a). Furthermore, in a custody dispute, "[t]he trial court is best suited to assess the factors upon which it based its determination, given its proximity to the parties and circumstances, and its opportunity to personally observe and evaluate the witnesses." Myers v. Myers, 768 P.2d 979, 984 (Utah Ct.App.1989) (citing Alexander v. Alexander, 737 P.2d 221, 223 (Utah 1987)); see also Shioji v. Shioji, 712 P.2d 197, 201 (Utah 1985). Thus, we will not overturn the trial court's custody award in this case absent an abuse of discretion. Myers, 768 P.2d at 984.

Husband asserts the trial court's findings on custody are not supported by the evidence. The trial court acknowledged the standards for determining custody as outlined in Pusey v. Pusey, 728 P.2d 117 (Utah 1986), and then supported its award of custody with these findings: (1) that Wife was the primary caretaker of the children; (2) that Wife had temporary custody and had been willing to spend time with the children in their school environment; (3) that there is a strong bonding between Wife and all four children, but there was an especially strong bond between Wife and the two youngest children; (4) that Wife had demonstrated her parenting skills which the court found adequate; (5) that the children were performing reasonably well in their environment; (6) that there was no showing that Wife's poor judgment in her moral conduct had any material detrimental effect on the children (7) that Husband worked long hours; (8) that Husband would be required to hire a sitter for the children during his work hours; (9) that Wife was not employed and could spend full time with the children; (10) that the children would benefit from the stability of the present environment rather than being thrust into an unknown environment with Husband; (11) that Wife had greater flexibility in providing daily personal care for the children; (12) that, even though the two older children expressed a desire to live with Husband, it was not in the best interests of the children to be placed there; and (13) that the children should not be split up.

Husband, in his brief on appeal, refers this court to evidence which conflicts with the trial court's findings, and supports his contention that he should have been awarded custody of the four children. However, Husband does not "marshal the evidence in support of the findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be 'against the clear weight of the evidence,' thus making them 'clearly erroneous.' " Bartell, 776 P.2d at 886 (quoting Walker, 743 P.2d at 193). See also Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985); Harker v. Condominiums Forest Glen, Inc., 740 P.2d 1361, 1362 (Utah Ct.App.1987). Therefore, we decline to further consider Husband's attack on the court's findings as to custody.

FAILURE TO TAKE JUDICIAL NOTICE

Husband next contends the trial court erred when it failed to take judicial notice at trial of the facts presented relevant to custody in the earlier hearing on temporary custody. Husband correctly asserts that courts are required to take judicial notice of adjudicative facts if a party requests it and supplies the court with the necessary information. Utah Rules of Evidence 201(d). Courts may take judicial notice of the records and prior proceedings in the same case. See In re S.J., 576 P.2d 1280, 1283 (Utah 1978) (relying on Utah Code Ann. § 78-25-1(3), superseded by Utah R.Evid. 201); Mel Trimble Real Estate v. Monte Vista Ranch, Inc., 758 P.2d 451, 455-56 (Utah Ct.App.1988).

However, these general principles do not apply in this case as Husband's request was not timely. Husband did not request the trial court to take judicial notice of the evidentiary proceedings on temporary custody until after the trial court issued the Decree of Divorce when he filed his Motion for New Trial and/or Motion to Amend Findings and/or Motion to Alter or Amend Judgment. Even at this time, Husband did not evoke the benefit of rule 201(d), nor specifically refer to the doctrine of judicial notice. See generally Mel Trimble Real Estate, 758 P.2d at 456.

Furthermore, even if this court were to find Husband's motion was timely, a transcript of the prior proceeding was not provided the trial court as required by rule 201(d). Thus, we find the trial court did not abuse its discretion in failing to take judicial notice of the facts presented in the evidentiary hearing on temporary custody.

FAILURE TO OBTAIN INVESTIGATIVE REPORT

Husband also claims the trial court committed error when it did not obtain an investigative report as required when there are allegations of child abuse. Utah Code Ann. § 30-3-5.2 (1988) provides:

When, in any divorce proceeding or upon a request for modification of a divorce decree, an allegation of child abuse or child sexual abuse is made, implicating either party, the court shall order that an investigation be conducted by the Division of Family Services within the Department of Social Services in accordance with Part 5, Chapter 4 of Title 62A. A final award of custody or visitation may not be rendered until a report on that investigation is received by the court. That investigation shall be conducted by the Division of Family Services within 30 days of the court's notice and request for an investigation.

Again, Husband's request was untimely as he did not request an investigation until after the court had decided the case. In any event, we are not persuaded any failure to conduct an investigation was prejudicial to Husband's position. At the time of the Riches' separation, Social Services had performed an investigation into the allegations of child abuse and had found the allegations groundless. We therefore find no error in the trial court's actions.

VISITATION

The trial judge awarded Husband the following visitation:

The Court finds that it is in the best interest of the minor children that the Defendant be allowed to visit with the children at all reasonable times and places upon properly demeaning himself, and that he further have the right to take the children for visitation purposes during the Christmas vacation, commencing at 3:00 p.m. on December 25, and continuing until 6:00 p.m. on December 28th of each year. Further that the Defendant be allowed to take the children for visitation purposes for two week [sic] during the month of June and two weeks during the month of August and that the Defendant shall select those periods of time each year and notify the Plaintiff of those periods by May 1st of each year, so long as his selected visitation periods do not interfere with the school schedule of the children. Additionally, Defendant will be allowed to take the children for visitation purposes every other weekend from 5:00 p.m. on Friday until 6:00 p.m. on Sunday and that the Defendant shall further have the right to visit with the children every Wednesday evening from 5:00 p.m. until 8:00 p.m. The Defendant shall also be allowed to take the children for visitation purposes from 9:00 a.m. until 8:00 p.m. on every other major holiday which shall consist of Easter, July 4, July 24, Labor Day and Thanksgiving. Said holiday visitation shall commence with the Defendant exercising the Thanksgiving Day 1988 vacati...