Roberts v. Roberts
| Decision Date | 28 May 1992 |
| Docket Number | No. 910099-CA,910099-CA |
| Citation | 835 P.2d 193 |
| Parties | Paul Edward ROBERTS, Plaintiff and Appellant, v. Sheri Lynn ROBERTS, Defendant and Appellee. |
| Court | Utah Court of Appeals |
Ephraim H. Fankhauser, Salt Lake City, for plaintiff and appellant.
Richard S. Nemelka, Salt Lake City, for defendant and appellee.
Before GARFF, JACKSON and ORME, JJ.
Plaintiff-appellant Paul Edward Roberts (Husband) appeals from a divorce decree awarding custody of the parties' minor children to defendant-appellee Sheri Lynn Roberts (Wife) and also contests the property distribution and finding of his gross income for computing child support. Wife cross appeals, contesting the distribution of debts, alimony award, and attorney fees. We remand for findings and conclusions regarding the custody and alimony awards and affirm on all other issues.
Following a marriage marked by at least one earlier separation and considerable strife, Husband filed a complaint for divorce on January 8, 1990 and petitioned the court for an order granting him temporary custody of the parties' two minor children, who were then ages five and four.
On January 9, a court employee mistakenly stamped the judge's signature on the original order to show cause and order granting Husband temporary custody. This temporary order was later set aside as improperly executed. The judge promptly signed a properly executed order granting Husband temporary custody until the commissioner held a hearing on the matter. At the hearing on February 5, the commissioner recommended that Husband have temporary custody and temporary use of the home, and that an evaluator who was mutually acceptable to both parties perform a custody evaluation. Wife filed an objection pursuant to Rule 6-401(4) of the Utah Rules of Judicial Administration and requested an evidentiary hearing on the matter. On March 2, the trial court conducted a nonevidentiary hearing, in which it affirmed the commissioner's recommendations. Husband thus had temporary custody approximately eleven months prior to trial.
At trial, Husband presented evidence of his gross income and professed that the figure was high, but assented to using the figure to calculate child support. The court admitted evidence of Husband's method of obtaining temporary custody, as relevant to the custody issue. Each party testified to the other's infidelity, ill temper, and self-centered behavior. Each largely denied the other's allegations regarding his or her behavior. Wife testified that Husband had physically abused her. Husband denied the allegation of abuse. Wife also presented evidence that six months after the commencement of the divorce action, Husband had asked for women's phone numbers at a bar and then asked for his money back on the drinks he had bought them when they did not respond. Husband denied the allegation. Husband presented evidence that on January 4, 1990, directly before he filed for divorce, he found Wife engaged in a sexual act with another man in a car at the ZCMI parking terrace. Husband admitted that later that day he struck Wife in the face, breaking her nose. In short, the testimonial evidence was hotly disputed.
The court-ordered evaluator testified in support of her report. In her report she stated that both parents were motivated to receive custody, were sensitive to the children, were inclined to see themselves in a very favorable light, free from anxiety and depression, and had a reputation for yelling at the children. The evaluator identified Wife as the primary caretaker before the separation, but recommended that the children should be kept together, and that custody should remain with Husband. She based this recommendation on her opinion that Husband had a stronger parent-child bond, that Husband felt a stronger sense of responsibility for the children, and that Husband was more inclined to orient his life to accommodate the children's needs.
In addition to the court-ordered evaluation, the court heard the testimony of three expert witnesses: a family counselor, a psychologist, and a social worker, who all testified in Wife's behalf regarding the strength of her bond with the children. These witnesses did not make custody recommendations or submit reports complying with the requirements for Uniform Custody Evaluations. The trial court awarded custody to Wife, entering its decree of divorce on December 3, 1990. Husband then filed motions for a new trial and to alter or amend the decree, asserting essentially the same issues he asserts on appeal. The court denied the motions on all issues.
On appeal, Husband challenges the court's custody grant, distribution of property, determination of his gross income for calculating child support, and failure to impose sanctions on Wife. Wife cross appeals, claiming that the court erred in denying her a full evidentiary hearing to determine temporary custody and that the statutory procedure for determining temporary custody is unconstitutional. 1 She also challenges the distribution of debts and the alimony award, and requests attorney fees both at trial and on appeal.
Husband contends that the trial court's custody determination was not supported by adequate findings of fact and conclusions of law. He further asserts that the evidence was insufficient to support the findings and that the court abused its discretion in granting Wife custody of the two minor children. Our threshold consideration on review is whether the court's findings and conclusions are adequate. "In cases tried to the bench, the court is required to 'find the facts specially' and thus ground its decision on findings of fact which resolve the material factual uncertainties and are expressed in enough detail to enable a reviewing court to determine whether they are clearly erroneous." Erwin v. Erwin, 773 P.2d 847, 848-49 (Utah App.1989) (quoting Utah R.Civ.P. 52(a)). "[T]o ensure the court acted within its broad discretion, the facts and reasons for the court's decision must be set forth fully in appropriate findings and conclusions." Painter v. Painter, 752 P.2d 907, 909 (Utah App.1988) (citations omitted); accord Linam v. King, 804 P.2d 1235, 1237 (Utah App.1991). These findings must be adequate to ensure on appeal " 'that the trial court's discretionary determination was rationally based.' " Painter, 752 P.2d at 909 (quoting Martinez v. Martinez, 728 P.2d 994, 994 (Utah 1986)). Specificity of findings is particularly important in custody determinations. This is so because the issues involved are highly fact sensitive. 2
We will not disturb a trial court's custody determination if it is consistent with the standards set by appellate courts and supported by adequate findings of fact and conclusions of law. Paryzek v. Paryzek, 776 P.2d 78, 83 (Utah App.1989). The legal standards applied by the appellate courts are based on Utah Code Ann. § 30-3-10(1) (1989), which requires the trial court to "consider the best interests of the child and the past conduct and demonstrated moral standards of each of the parties." The appellate courts have emphasized a number of "function related" factors as criteria for the trial court to consider in determining which custody arrangement will meet the minor child's best interests. 3 Unlike support and alimony determinations, which can be made by relatively simple quantitative analysis, there is no checklist of custody factors, since "[t]hese factors are highly personal and individual, and do not lend themselves to the means of generalization employed in other areas of the law." Moon v. Moon, 790 P.2d 52, 54 (Utah App.1990). Consequently, when custody is contested and evidence presents several possible interpretations, a bare conclusory recitation of factors and statutory terms will not suffice. We must have the necessary supporting factual findings linking those factors to the children's best interests and each parent's abilities to meet the children's needs. See Painter, 752 P.2d at 909.
[I]f our review of custody determinations is to be anything more than a superficial exercise of judicial power, the record on review must contain written findings of fact and conclusions of law by the trial judge which specifically set forth the reasons, based on those numerous factors which must be weighed in determining the "best interests of the child," and which support the custody decision.
Smith v. Smith, 726 P.2d 423, 425 (Utah 1986); cf. Ebbert v. Ebbert, 744 P.2d 1019, 1021 (Utah App.1987) (), cert. denied, 765 P.2d 1278 (Utah 1988).
In the instant case, the trial court made two conclusions of law referring to its findings, and summarized its findings on the custody issue as follows:
a. That both parties are capable of providing care of the minor children.
b. That both parties have participated in acts that bear on their moral character, to-wit: [Wife] with the ZCMI incident and [Husband] with the incident at the bar. Further, the court finds that the incident at the bar did in fact take place and that [Husband] was less than candid in his testimony given to the court regarding the same.
c. That [Husband] has physically abused [Wife] during the marriage.
d. That although [Husband] has had custody of the minor children since 1990; since that period of time is not substantial the court has not given it a great deal of weight.
e. That both parties have a desire for custody and a bonding with the children.
f. That [Wife] was primary caretaker of the minor children during the marriage and prior to the separation in January, 1990.
g. That [Wife] is far more amenable to giving liberal visitation to [Husband] than [Husband] would be to [Wife].
h. That [Wife] has better parental skills than [Husband] based upon her being the primary caretaker.
i. That it is in the best interests of the children that [Wife] be awarded the sole care, custody and control of the two (2) minor...
To continue reading
Request your trial
-
In re Samone H.
...testimony that the "mother and her children had a `strong attachment' to each other" as evaluative in nature); Roberts v. Roberts, 835 P.2d 193, 195 (Utah App.1992) (considering a social worker's testimony regarding the "strength of [mother's] bond with the children" as evaluative in nature......
-
Barnes v. Barnes
...threshold consideration on review is whether the trial court's findings are adequate to support its custody award. Roberts v. Roberts, 835 P.2d 193, 195 (Utah App.1992). If the findings are legally inadequate the exercise of marshalling the evidence in support of the findings becomes futile......
-
Allen v. Allen
...and individual, and do not lend themselves to the means of generalization employed in other areas of the law.” Roberts v. Roberts, 835 P.2d 193, 196 (Utah Ct.App.1992). As a result, “[u]nlike support and alimony determinations, ... there is no checklist of custody factors,” id., that “can g......
-
Tucker v. Tucker, 930380-CA
...Rucker v. Dalton, 598 P.2d 1336, 1338 (Utah 1979)); accord Barnes v. Barnes, 857 P.2d 257, 259-60 (Utah App.1993); Roberts v. Roberts, 835 P.2d 193, 195-96 (Utah App.1992). Ms. Tucker assails as inadequate five of the trial court's findings. She argues that they "show a misapplication of cu......
-
Utah Standards of Appellate Review
...1986); Barnes v. Barnes, 857 P.2d 257, 260-62 (Utah App. 1993); Sukin v. Sukin, 842 P.2d 922, 924 (Utah App. 1992); Roberts v. Roberts, 835 P.2d 193, 195-96 (Utah App. 1992) (stressing particular importance of specificity of findings in custody determinations); Howell v. Howell, 806 P.2d 12......
-
Recent Twists and Turns in the Evolution of Alimony
...alimony and provided answers to specific questions raised by the courts and practitioners in establishing alimony. In Roberts v. Roberts, 835 P.2d 193 (Utah App. 1992), the Utah Court of Appeals after restating the standard language for an alimony award added: This analysis of alimony payme......
-
Custody and Visitation Rights in Utah
...(Supp. 1994). [5]Id. §30-3-10.2(1). [6]Id. § 30-3-10.2(2)(a). [7]Id. § 30-3-10.2(2)(b). [8]Id. §30-3-10.2(2)(g). [9]Roberts v. Roberts, 835 P.2d 193 (Utah Ct. App. 1993). [10]Utah Code Ann. § 30-3-10(1) (Supp. 1994). [11]Id. §30-3-10(2). [12]Nielson v. Nielson, 652 P.2d 1323 (Utah 1982). [1......
-
Case Summaries
...permits a cohabitant to seek a protective order if the past abuse is coupled with a present threat of future abuse. Roberts v. Roberts, 835 P.2d 193 (Utah App. 1992). Husband appealed a divorce decree awarding custody of minor children to wife, despite a court-ordered custody evaluation rec......