Smith v. Smith

• Citation: 386 P.2d 900,15 Utah 2d 36
• Decision Date: 20 November 1963
• Docket Number: No. 9755,9755
• Parties: d 36, 4 A.L.R.3d 1383 Joseph Thurston SMITH, Plaintiff and Appellant, v. Alyce M. SMITH, Defendant and Respondent.
• Court: Supreme Court of Utah

Page 900

386 P.2d 900

15 Utah 2d 36, 4 A.L.R.3d 1383

Joseph Thurston SMITH, Plaintiff and Appellant, v. Alyce M. SMITH, Defendant and Respondent.

No. 9755.

Supreme Court of Utah.

Nov. 20, 1963.

Bushnell & Beesley, Salt Lake City, for appellant.

Gustin, Richards & Mattsson, William S. Richards, Salt Lake City, for respondent.

WADE, Justice.

Joseph Thurston Smith commenced a divorce action against his wife, Alyce M. Smith. The divorce was granted to the wife upon her counterclaim. He appeals only from that portion of the decree granting her the custody of their minor children. All but one of the six minor children were 10 years of age or over, and these five children expressed a preference to remain with the father, the appellant herein.

Under Section 30-3-5, U.C.A.1953, in divorce proceedings, where neither party is found to be an immoral or unfit person to have the custody of the children, must the children more than 10 years of age be awarded to the custody of the parent which is chosen by such child? In cases where the child is not entitled to make such choice and child custody cases generally, we have emphasized that the best interest of the child is controlling. ¹ Judges often disagree on what will be for the best interest of a child and the child's reaction to the award and many other factors may have a bearing on that question.

The above section provides '* * * that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves.' In Dorsey v. Dorsey, ² speaking of this provision, we siad: '[I]n case the parent the child selects is found to be an immoral or unfit person to have the care and custody of the child, and the court finds it to be for the best interests of the child, that the court may, nevertheless, determine the child's custody otherwise.' We have found no case to the contrary, and we think this is a correct statement of the law. This requires a finding that the parent selected be an immoral or unfit person; otherwise, the child must be awarded to the parent chosen. It is unthinkable that a court would award a child to the custody of an immoral or unfit parent even though the statute does not expressly provide such an exception. However, a finding that the best interest of the child requires that it be placed in other custody is not sufficient to justify the court in placing the child elsewhere.

Case reversed with directions that the children be awarded to the father, and that the decree conform to the views herein expressed. No costs awarded.

McDONOUGH and CALLISTER, JJ., concur.

CROCKETT, Justice (dissenting).

The main opinion reverses the decree granting custody of the children to their mother, the defendant, on the ground that the statute gives the children over 10 the absolute choice of parental custody. This supersedes the finding of the court that their best interest and welfare would be served by being with their mother and confers upon the father the incontestable right to their custody, so that the court is powerless to do other than to award the children to him. Because I am alone in my taking the opposite view, I acknowledge some degree of deference to the opinion of my colleagues. Nevertheless, because of the firmness of my conviction, I desire to set forth as clearly as possible the reasons for my conclusion.

In the first place, I am unable to reconcile the ruling of the majority with the more fundamental rules which have always been recognized as applicable to questions of child custody: that the welfare of the children is the paramount consideration, which overrides all others; that the trial court has broad discretion in making that determination; and that it will not be upset unless there is plain abuse. ¹

Secondly, it seems to me that the court's decision reaches its result by placing unwarranted literal emphasis upon only one clause of the statute, whereas I believe that if the entire statute and the background and purpose of the law are all given due consideration together, as they should be, the contrary conclusion will result.

Due to the position taken by my colleagues, that the statute is controlling anyway, I assume that no matter how praiseworthy the qualities of the defendant mother may be, nor however to the contrary with respect to the plaintiff father, nor however meritorious the case may seem for the mother having the children's custody, because of the children's choice, the award must, nevertheless, be to the father, unless he is completely unfit. This being the majority view, there would be no useful purpose in laboring in detail the question of the relative fitness of these parents. But I think it not amiss to observe in summary that if we look at the matter in the light most favorable to the finding of the trial court, as we should do, there is ample basis to justify the conclusion that it is in the best interest of these children to be awarded to their mother. Yet, it is only fair to state that to characterize her as a completely blameless and long-suffering wife, and the plaintiff as a villain, would be naive and unrealistic. There obviously is here, as there always is, some fault on both sides. But the trial court, from its advantaged position, and with its acknowledged prerogatives, has chosen to believe her version of the evidence; found the issues in her favor; granted her the divorce, and has found that it would be for the best interest and welfare of the children to be in her custody.

To give the plaintiff his due, in spite of his faults, a good case can be made that he has a sincere desire to be a good father to his children; that he disciplines and manages them quite well; and that they love and respect him. However, beyond this, it also appears from the evidence that in all likelihood the plaintiff as a doctor and a psychiatrist assumes to himself an air of superiority; that he has tended to overshadow his wife; and is somewhat aggressive and domineering. There are some aspects of his conduct which, from a detached perspective, seem a bit irrational, the epitome of which is exemplified by a telephone call to the defendant, during the emotional throes of their trouble, in which he clung on to the conversation continuously for nine hours.

Plaintiff's aggressiveness and tenacity is manifest in this proceeding itself. He initiated the divorce action against his wife, bent upon disgracing her and taking the children away from her. But as to the hypothesis upon which he proposed to do so, that she was immoral and unfit, he failed in his proof, and the trial court found the other way. He nevertheless stubbornly insists that he is right, and that the court itself has no power to decide the issue against him. It is obvious that the economic leverage he has is at least one of the important factors influencing the choice of the older children. Under the circumstances shown, it strikes me as an egregious miscarriage of justice to thus reward his aggressiveness and intransigence.

Further, and more important than the result in this case, is the fact that the holding with respect to this statute seems to me to completely distort its true purpose and reaches a high point in forebearance of the judicial prerogative, if not an outright abdication of judicial duty. If the mere fact that a child has become 10 years old endows him with power to make a choice of his parental custodian, which must be honored in any event, and whether his reasons are good or bad, or in fact whether he has any reasons at all, so that his choice is absolute and not subject to control or review by anyone, even by the court, he could be empowered to make a decision of the gravest possible consequence to himself, his family, and society, under circumstances where, because of his immaturity, and the usual emotional stress, there is little assurance that his judgment would be sound. It would be one of the most arbitrary and far-reaching prerogatives known to the law. This is plainly nonsensical and impractical.

Fortunately for society and the individuals in it, the law does not function by singling out and placing all of the emphasis on one clause in a statute. Throughout the long and prideful history of our common law system, its principal merit has been that instead of casting aside reason and clinging slavishly to unintended literalness, its usefulness and its durability have been served by applying the rule of reason to adapt it to the practical exigencies of life. The cardinal principle has constantly been adhered to that when the course of justice is clear, it is the purpose of the law and the duty of the courts to fashion it out of the materials available.

A study of the decisions will show that it has invariably been considered that in basic structure our law is of more profound character than a mere catalog of words or rules to be applied to the affairs of life in mechanical fashion; and that it has always been regarded as a proper judicial function to give it a reasonable and sensible application to avoid unjust or absurd results. Correlated to this is an appreciation that in the multifariousness of legislation it is inevitable that there will at times be beneflicts between provisions of the law; and that it is difficult for statutes, which necessarily must be in general language, to apply to the variety of life with absolute clarity and precision in all instances. Consequently, where by inept wording, lack of certainty, or simply through error or inadvertence, the statute is such that too literal an interpretation would produce asburd results, the courts have wisely looked beyond such frailties or superficialities to the background of the statute to find the true intent and purpose sought to be accomplished; and similarly, where there appears to be conflict, a provision of law which is paramount in the public interest will prevail over...