Stover v. Stover

• Decision Date: 25 November 1901
• Docket Number: 1312
• Court: Utah Supreme Court
• Parties: CLARINDA B. STOVER, Appellant, v. JAMES A. STOVER, Respondent

66 P. 766

24 Utah 92

CLARINDA B. STOVER, Appellant, v. JAMES A. STOVER, Respondent

No. 1312

Supreme Court of Utah

November 25, 1901

Appeal from the Third District Court, Salt Lake County.--Hon. S.W Stewart, Judge.

Action for divorce, alimony and custody of children. From a decree granting divorce and alimony, in favor of the plaintiff and awarding the custody of the children to the defendant, the plaintiff appealed.

REVERSED and remanded.

Messrs Smith & Walton for appellant.

The court erred in awarding to the defendant the custody of the children; and the decree in that respect is inconsistent with the findings of fact made by the court, and the first conclusion of law.

From the finding that plaintiff was not the one at fault, but that defendant causelessly deserted and failed to provide for plaintiff, though having ability to support his family, and a failure to find that defendant's pleaded accusations against plaintiff were well founded, one is naturally led to the conclusion that plaintiff rather than defendant is entitled to the custody of the children, and that at least plaintiff should have opportunity to visit her young. We are at a loss to imagine the process of reasoning by which from the premises in this case the conclusion was reached which is embodied in the decree fixing the status of the children. The mother is preferred to the father when the child is of tender years. 2 Bishop, M. & Div., 1164 and 1196.

Mathonihah Thomas, Esq., for respondent.

BARTCH, J. MINER, C. J., and BASKIN, J., concur.

OPINION

BARTCH, J.

This was an action for divorce, alimony, and custody of children. At the trial the court held that the plaintiff was entitled to, and granted her, a decree a vinculo matrimonii and awarded her $ 25 permanent alimony, but awarded the custody of the four children, all minors, to the defendant. This appeal is from that portion of the decree which relates to alimony and the custody of the children, and the appellant insists that as to those points the decree is inconsistent with the findings of fact and the first conclusion of law, and that it is not supported by the findings of fact. The evidence is not before us, and, therefore, in determining the question presented, we must have reference solely to the findings and decree. The findings of fact, so far as material here, read as follows: "(4) That said defendant willfully, and without just cause or excuse, did desert said plaintiff on or about the thirty-first day of June, A. D. 1897, and since that time has failed to provide for said plaintiff as his wife. (5) That said defendant has the ability to support, and is willing to care for, maintain, and educate, the children aforesaid, the issue of said marriage. (6) That said plaintiff has not the ability, financially or morally, to care for, maintain, and educate the children aforesaid. (7) That defendant has no property, real or personal." The words "or morally," in the sixth finding of fact, were afterwards, on motion, stricken out, upon the ground that there was no evidence to support such finding, and that those words had been inadvertently inserted. The first conclusion of law reads: "That the plaintiff is entitled to be awarded a decree of divorce on the ground of desertion and failure to support." The decree reads: "And it is therefore hereby ordered, adjudged, and decreed that the bonds of matrimony heretofore existing between plaintiff and defendant be, and they are hereby, forever dissolved; that defendant herein be, and he is hereby awarded the sole care, custody, and control of each and all of said children, the issue of said marriage, to-wit, Walter L., Virginia E., Daniel C., and Margaret F. And it is further...