Schindler v. Schindler

• Decision Date: 06 June 1989
• Docket Number: No. 880355-CA,880355-CA
• Citation: 776 P.2d 84
• Parties: DeLynne N. SCHINDLER, Plaintiff and Respondent, v. John E. SCHINDLER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 84

776 P.2d 84

DeLynne N. SCHINDLER, Plaintiff and Respondent, v. John E. SCHINDLER, Defendant and Appellant.

No. 880355-CA.

Court of Appeals of Utah.

June 6, 1989.

Don R. Peterson, Leslie W. Slaugh, Provo, for defendant and appellant.

B.L. Dart, John D. Schaeffer, Jr., Salt Lake City, for plaintiff and respondent.

Before BENCH, GARFF and ORME, JJ.

OPINION

GARFF, Judge:

Defendant/appellant, John E. Schindler, appeals the trial court's judgment awarding plaintiff/respondent, DeLynne N. Schindler, alimony and custody of the parties' two children. We affirm.

Appellant and respondent married on August 17, 1973, divorced in January 1980, and subsequently remarried on July 20, 1981. Two male children were born during the second marriage: John Christian (Chris) and Cory Lynn. These boys were, respectively, ages 4 and 3 at the time of trial.

Appellant's gross monthly income at the time of trial included a salary of $2,360 for his work as a deputy county attorney, private law practice income of $500, and contract income of $206. Respondent had been an elementary school teacher prior to and during the marriage, until Chris's birth. She did not work outside the home afterwards, and was unemployed at the time of trial. At the time of trial, respondent's monthly income consisted of $400 temporary maintenance paid by appellant and $500 per month from her parents, in contrast to her claimed monthly needs of about $2,500 per month. Appellant claimed living expenses totaling $3,360 per month, $1,492 of which was attributable to debts established in the temporary custody hearing. The parties acquired a home and other real property during the marriage, none of which had any appreciable equity.

The parties separated on February 14, 1987. A hearing on the issues of temporary custody and support was held on March 4, 1987, and resulted in an order awarding temporary custody of the children, exclusive use and occupancy of the marital residence, and $400 per month temporary maintenance to respondent.

At trial, appellant relied on expert testimony presented by Dr. Lynn Ravsten and Dr. Ralph Vanderlinden, both licensed psychologists with whom the parties had participated in marriage counseling during 1986 and 1987, to support his position that he should be awarded custody of the children because respondent's behavior was emotionally damaging to them.

Ravsten testified that Chris had a "very severe oppositional behavior problem" resulting in resistive and aggressive behavior, was much more aggressive than most boys his age, had a mood problem of anger and sadness, and was alienated. He found that Cory did not have these problems because he was too young. Invoking ethical restrictions because he had not observed respondent and the boys together, Ravsten testified only concerning the theoretical background of aggressive behavior, rather than finding respondent's behavior to be the cause of Chris's problems. He stated that he did not have any reservations about appellant as a custodial parent, but cautioned that he did not intend this as a comparative statement with respect to respondent's capability as a custodial parent.

Appellant sought to elicit testimony from Vanderlinden as to which parent would be the best permanent custodial parent. Respondent's counsel objected on the grounds that Vanderlinden had not evaluated the children nor seen them interact with respondent. Upon voir dire examination, Vanderlinden stated that, prior to the initial hearing, he had promised respondent he would not testify as to which party was the better parent. He also admitted that he had not counseled with the children, tested them, nor observed them interact with respondent. Therefore, the judge sustained respondent's objection and did not allow Vanderlinden to give an opinion as to which party would be the better permanent custodian. However, he did allow Vanderlinden to compare the parties' general personality characteristics.

The trial court awarded custody of the children to respondent and ordered appellant to pay $400 per month child support. Further, it ordered appellant to pay the $875 per month mortgage payment until the house was sold and, then, permanent alimony of $500 per month. Appellant was also to assume debts with payments in excess of $700 per month, while respondent was ordered to pay other debts in the amount of $539 per month. The court entered its written factual findings and decree of divorce on March 4, 1988.

Appellant filed a motion for a new trial on March 14, 1988, alleging that the trial court abused its discretion in excluding part of Vanderlinden's testimony, that he was surprised by Vanderlinden's previous promise to respondent not to testify, and that the evidence was insufficient to support the trial court's custody and alimony awards. Appellant's affidavit accompanying the motion indicated that he had met with Vanderlinden several times to discuss the upcoming trial, that Vanderlinden had given no indication that he had made such a promise, and that appellant could not have anticipated Vanderlinden's restricted testimony. Vanderlinden also submitted an affidavit in which he indicated that the children's long term interests would best be served by awarding their custody to appellant because respondent's psychological problems detracted from her parenting ability.

The trial court denied appellant's motion for a new trial. Appellant brought this appeal in which he raises the following issues: (1) Was the trial court's award of custody to respondent an abuse of discretion in that it was against the weight of the evidence? (2) Did the trial court err in excluding Vanderlinden's testimony? (3) Did the trial court abuse its discretion in denying appellant's motion for a new trial? (4) Did the trial court abuse its discretion in awarding respondent alimony?

CUSTODY

In making child custody awards, the trial court is given broad discretion, Davis v. Davis, 749 P.2d 647, 648 (Utah 1988), and its decisions will not be overturned absent an abuse of discretion or manifest injustice. Maughan v. Maughan, 770 P.2d 156, 159 (Utah Ct.App.1989). This discretion is limited in that: (1) it must be exercised within the confines of the legal standards set by the appellate courts, and (2) the facts and reasons for the court's decision must be set forth in appropriate findings of fact and conclusions of law. Id.; see also Davis, 749 P.2d at 648.

The trial court's primary focus must be on the best interests of the child, rather than on the conduct of the parties during the marriage. Deeben v. Deeben, 772 P.2d 972, 974 n. 4 (Ct.App.1989). To determine the best interests of the child, the trial court must consider "function-related" factors, which include:

the preference of the child; keeping siblings together; the relative strength of the child's bond with one or both of the prospective custodians; and, in appropriate cases, the general interest in continuing previously determined custody arrangements where the child is happy and well adjusted. Other factors relate primarily to the primary custodians' character or status or to their capacity or willingness to function as parents: moral character and emotional stability; duration and depth of desire for custody; ability to provide personal rather than surrogate care; significant impairment of ability to function as a parent through drug abuse, excessive drinking, or other cause; reasons for having relinquished custody in the past; religious compatibility with the child; kinship, including, in extraordinary circumstances, stepparent status; and financial condition.

Id. at 973 (quoting Hutchison v. Hutchison, 649 P.2d 38, 41 (Utah 1982)). This court has recognized that some of the more significant factors, although not dispositive, include the identity of the primary caretaker during the marriage, the parent who has the greatest flexibility to provide personal care for the child, and the relative stability of the environment each parent is capable of providing. Id. at 56.

Appellant argues that the trial court abused its discretion by considering only three factors, the identity of the primary caretaker, the bonding of the children with the prospective custodian, and the prospective custodian's emotional stability, and then disregarding evidence that weighed in appellant's favor on the emotional stability factor. The trial court, in its findings of fact and conclusions of law, stated that 5. During the marriage, the plaintiff has been the primary caretaker of the parties' minor children, and has continued in that role since the parties' separation.

6. The parties' children are more closely bonded to the plaintiff than to the defendant.

7. Both parties are fit and proper parents.

8. Plaintiff has exhibited some emotional instability during the marriage which is principally attributable to marital conflict between the parties and does not impair plaintiff's functioning as a fit and proper parent to the children.

9. The oldest child of the parties is exhibiting some emotional problems.

....

4. It is in the best interest of the parties' two minor children that their care, custody and control be awarded to plaintiff subject to the condition that plaintiff arrange for such counseling as may be necessary for Chris to overcome his emotional difficulties and if qualified counselors determine that such difficulties exist aside from the emotional trauma caused by the divorce, plaintiff shall follow through with such counseling [sic] for Chris as may be necessary. This conclusion takes into account the emotional instability of the plaintiff which the Court believes can be addressed by counseling.

Because custody determinations are so fact-sensitive, there is no required set of conditions which the court must consider, but the applicability and relative weight of the various factors in a particular case lies within its discretion. Hutchison, 649 P.2d at 41; see Bake v. Bake, 772 P.2d...