Rohr v. Rohr

• Decision Date: 31 October 1985
• Docket Number: No. 20425,20425
• Citation: 709 P.2d 382
• Parties: Ronald ROHR, Plaintiff and Appellant, v. Lynnae June ROHR, Defendant and Respondent.
• Court: Utah Supreme Court

Page 382

709 P.2d 382

65 A.L.R.4th 1149

Ronald ROHR, Plaintiff and Appellant, v. Lynnae June ROHR, Defendant and Respondent.

No. 20425.

Supreme Court of Utah.

Oct. 31, 1985.

Ronald E. Nehring, Salt Lake City, for plaintiff and appellant.

Dean Mitchell, Salt Lake City, for defendant and respondent.

PER CURIAM:

Plaintiff appeals from an order modifying a decree of divorce restricting his visitation rights with his minor daughter and requiring him to bring current past due alimony and child support. Defendant has made no appearance in this appeal. We affirm as modified.

Plaintiff and defendant were divorced in 1982. Both parties subsequently petitioned the court for a modification of the decree with respect to child visitation and financial support arrearages, plaintiff seeking extended visitation rights, and defendant requesting severe restrictions. After a hearing on the petitions for modification, the court entered findings that plaintiff was in default for payments in the sum of $4,800 (representing $2,400 in alimony and $2,400 in child support); that he had failed to comply with the court's previously ordered visitation schedule; had engaged in conduct detrimental to the welfare of both defendant and the minor child; had attempted to remove the child from the court's jurisdiction without the consent of the court or the custodial parent; and had surrendered the minor child only upon intervention of the Salt Lake County Sheriff's Office. In accordance with those findings, the court entered its order and stated in part pertinent to this appeal:

1. That plaintiff shall be allowed to visit the minor child once per week for four hours and in the presence of a third person agreed upon by both parties. Plaintiff shall bear all necessary costs, if any, of obtaining a third party for such visitation. Plaintiff shall provide reasonable notice of intent to visit, and shall make defendant aware of where the child is at all times when with him.

....

3. That plaintiff shall pay the defendant the sum of Four Thousand Eight Hundred Dollars ($4,800.00) for back alimony and child support, one thousand two hundred and thirty-two dollars and fifty cents ($1,232.50) for defendant's attorney's fees in bringing the present action, and twenty-eight dollars and seventy-five cents ($28.75) for defendant's costs awarded her as prevailing party.

4. The visitation schedule outlined in paragraph one of this order shall remain until plaintiff has paid defendant all sums outlined in paragraph three, or total of six thousand sixty-one dollars and twenty-five cents ($6,061.25). Upon payment of this sum, this court will then determine what permanent modification, of the original decree of divorce, if any, would be appropriate.

Plaintiff advances three arguments on appeal:

(1) Parents have a fundamental right to participate in the rearing of their children, and that right should not be subjected to monetary concerns of the custodial parent.

(2) The child has visitation rights which enhance the emotional development of the child.

(3) There are less intrusive methods of enforcing child support judgments than conditioning visitation on payment of support.

In supplemental proceedings in domestic matters, we review the record in a light favorable to the findings and determinations made by the trial court and do not interfere with them unless it appears that the evidence clearly preponderates against the findings or that the trial court abused its discretion or misapplied principles of law. Openshaw v. Openshaw, Utah, 639 P.2d 177 (1981); Christensen v. Christensen, Utah, 628 P.2d 1297 (1981). In vesting the trial court with continuing jurisdiction over the parties to a divorce and issues arising thereunder, the legislature expressly provided that "visitation rights of parents ... shall take into consideration the welfare of the children." U.C.A., 1953, 30-3-5 (1984 ed.).

In essence, the issue before us is the plaintiff's claim that the trial court abused its discretion in conditioning the scope of future visitation between plaintiff and his daughter upon payments of past due child support. ¹

This is a case of first impression in our forum, but a general rule emerges from this much litigated issue in other jurisdictions: ² A court may not deny the noncustodial parent visitation rights for the mere failure to pay child support, where the failure to pay is due to an inability to pay. See Ledsome v. Ledsome, W.Va., 301 S.E.2d 475 (1983); Marciano v. Marciano, 56 A.D.2d 735, 392 N.Y.S.2d 747 (1977); Engrassia v. DiLullo, 89 A.D.2d 957, 454 N.Y.S.2d 103 (1982); Lunsford v. Waldrip, 6 Wash.App. 426, 493 P.2d 789 (1972).

However, where the noncustodial parent's refusal to pay child support is contumacious, or willful and intentional, and not due to inability to pay, visitation rights may be reduced or denied, if the welfare of the child so requires. See Ledsome v. Ledsome, supra; Lewis v. Lewis, 260 Ark. 691, 543 S.W.2d 222 (1976); DeWelles v. Dwelle, 214 Pa.Super. 376, 257 A.2d 594 (1969); Raible v. Raible, 242 Md. 586, 219 A.2d 777 (1966); Reardon v. Reardon, 3 Ariz.App. 475, 415 P.2d 571 (1966). But cf. West v. West, 6 Or.App. 128, 487 P.2d 96 (1971).

Reviewing courts have universally held that the paramount concern in child visitation matters is the welfare of the child. Also, "the conduct of the father [sic] as it affects the child's welfare is a proper consideration of the trial court." Lunsford v. Waldrip, supra, 493 P.2d at 792. See also Raible, supra; Marciano, supra; Ledsome, supra.

There is no evidence in the record that plaintiff was unable to provide for his child as ordered in the divorce decree. There is ample evidence, however,...