Thomas v. Thomas

• Decision Date: 12 August 1999
• Docket Number: No. 971472-CA.,971472-CA.
• Citation: 987 P.2d 603,1999 UT App 239
• Parties: Ann Elizabeth THOMAS, Plaintiff, Appellant, and Cross appellee, v. Bert Charles THOMAS, Defendant, Appellee, and Cross appellant.
• Court: Utah Court of Appeals

987 P.2d 603

1999 UT App 239

Ann Elizabeth THOMAS, Plaintiff, Appellant, and Cross appellee, v.Bert Charles THOMAS, Defendant, Appellee, and Cross appellant.

No. 971472-CA.

Court of Appeals of Utah.

August 12, 1999.

Frederick N. Green, Green & Berry, Salt Lake City, for Appellant.

Brent D. Young, Ivie & Young, Provo, for Appellee.

Before WILKINS, P.J., and DAVIS, and ORME, JJ.

AMENDED OPINION¹

ORME, Judge:

¶ 1Ann Thomas appeals the trial court's decree of divorce, challenging the court's award of custody and alimony, as well as its property division.Bert Thomas cross-appeals, arguing the trial court over-estimated his annual income.We affirm.

BACKGROUND

¶ 2Ann Thomas and Bert Thomas were divorced, thus ending their almost fifteen-year marriage, on July 9, 1997.During their marriage, they had two children, now ages twelve and nine.Ms. Thomas is a teacher in the same school the children attend.Mr. Thomas owns Bert Thomas Construction, Inc. and works primarily in the Sundance resort area in Utah County.Other facts will be discussed in the course of considering the parties' arguments.

CUSTODY

¶ 3We first address Ms. Thomas's challenge of the trial court's award to Mr. Thomas of custody of the parties' two children."[W]e accord broad discretion to the trial court so that it may use its first-hand proximity to the parties to resolve the delicate and highly personal problems presented in custody disputes."Erwin v. Erwin,773 P.2d 847, 849(Utah Ct.App.1989).We will overturn the court's findings of fact only if they are clearly erroneous, and "`[o]nly where the trial court's judgment is so flagrantly unjust as to be an abuse of discretion, will [an appellate court] interpose its own judgment.'"Tucker v. Tucker,910 P.2d 1209, 1214(Utah1996)(citation omitted; second alteration in original).However, "`[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.'"Roberts v. Roberts,835 P.2d 193, 195(Utah Ct.App.1992)(quotingPainter v. Painter,752 P.2d 907, 909(Utah Ct.App.1988)).

¶ 4 Ms. Thomas's concerns focus on the trial court's findings and conclusions concerning her relationship with Pedro Sauer.Shortly before the parties separated in March 1993, Ms. Thomas began a relationship with Mr. Sauer, her instructor in "Brazilian jiu jitsu."²Mr. Sauer was also married at the time.The trial court found that, during his relationship with Ms. Thomas, Mr. Sauer had been charged with domestic violence against his wife and, after an incident that occurred in Ms. Thomas's presence, with illegal possession of a firearm.The court further found that Mr. Sauer had a history of extramarital affairs and had fathered a child with his wife while continuing his relationship with Ms. Thomas.The court observed that "[t]he appearance of Señor Pedro Sauer in an emotional and sexual relationship with Ann Thomas during this marriage is a very complicating factor."The court found that Ms. Thomas had "been the primary care giver for the children throughout their lives," and that, "[a]bsent [Mr. Sauer's] entry, and his influence, it is clearly in the best interests of the children to be awarded to Ann Thomas."However, the court determined that, "[w]ith Pedro in the picture, which he is and intends to be, it is not in the best interests of the children to be in the home and subjected to the negative influence and example of Pedro."

¶ 5 Ms. Thomas argues, first, that the trial court placed too much weight on her moral conduct, while failing to properly weigh the best interests of the children.Second, Ms. Thomas argues the trial court failed to show how her relationship with Mr. Sauer negatively affected her parenting abilities or the best interests of the children.³¶ 6Utah Code Ann. § 30-3-10(1)(1998) directs that, "[i]n determining custody, the court shall consider the best interests of the child and the past conduct and demonstrated moral standards of each of the parties."Ms. Thomas argues the trial court improperly placed more emphasis on her moral character than on the children's best interests when it allowed her relationship with Mr. Sauer to overcome its own finding that it would clearly be in the children's best interests to be in Ms. Thomas's custody.

¶ 7 Ms. Thomas correctly states that "a custodial parent's censurable extra-marital sexual activities do not in and of themselves make him or her an unfit and improper person to have custody."Tucker v. Tucker,881 P.2d 948, 954(Utah Ct.App.1994), rev'd on other grounds,910 P.2d 1209(Utah1996).It is likewise true that, "[i]n considering competing claims to custody between fit parents under the `best interests of the child' standard, considerable weight should be given to which parent has been the child's primary caregiver."Davis v. Davis,749 P.2d 647, 648(Utah1988).However, Ms. Thomas makes too much of the trial court's use of the word "clearly."The trial court's findings, when viewed as a whole, establish the required causal connection between Ms. Thomas's relationship with Mr. Sauer and her parental fitness.SeeShioji v. Shioji,712 P.2d 197, 200(Utah1985)(holding that, in order to justify change in custody, extramarital sexual relationship must "have some material relationship to and substantial effect on parenting ability.").

¶ 8The trial court found this case"complicated[,]... with no easy, clear-cut answers," and stated that "[b]oth ... parents... are competent and definitely love their children."As the primary caregiver, Ms. Thomas would have received custody of the children were it not for the negative impact of her relationship with Mr. Sauer, which "`had a dramatic effect' on the ultimate breakup of the Thomas family."And although the evaluators advising the court did not find the relationship was harmful to the children, the court found "a `link' or connection that would suggest that the relationship between [Ms. Thomas] and Mr. Sauer has negatively impacted the children, or will negatively impact the children in the future."

¶ 9 Specifically, Mr. Sauer's domestic violence and gun charges caused the court concern for Ms. Thomas's safety and for the negative influence on the children of any future illegal activity on his part.More tangibly, the court was concerned that although Mr. Sauer offered no financial assistance, "scarce resources [were] expended on [him by Ms. Thomas] for gifts and travel."Further, the court noted that the children had witnessed a confrontation between Mr. Sauer and his wife at Ms. Thomas's home.The court was "profoundly concerned" that Ms. Thomas seemed unable to appreciate that aspects of her relationship with Mr. Sauer were unhealthy for the children.The court took particular exception to Ms. Thomas's opinion of Mr. Sauer as "`a very positive role model.'"The court concluded: "To that extent [Ms.] Thomas does not have the best interests of the children at heart....Mr. Thomas offers a more stable environment to the children."

¶ 10 The issues raised by Ms. Thomas on this point were addressed by the Utah Supreme Court in Shioji v. Shioji,712 P.2d 197(Utah1985).In that case, an extramarital relationship was the impetus behind a noncustodial parent's petition to modify custody.The trial court had found that the mother's "conduct and attitude with respect to the relationship had a material and adverse effect on her parenting ability," and that the mother and her boyfriend "were either unwilling or unable to appreciate the adverse impact of their conduct on the children."Id. at 200.Our Supreme Court ruled that, while

a custodial parent's extramarital sexual relationship alone is insufficient to justify a change in custody[, t]he trial court's findings in this case go far beyond a single finding that [the mother] engaged in extramarital intercourse or that she, on occasion, allowed her boyfriend to stay overnight.The key to our decision is the court's finding of a substantial adverse impact on the children as a result of the [mother's] behavior.

Id. at 200-01(footnote omitted).

¶ 11 The divorce proceedings in this case were of several days' duration.The court heard live testimony and observed the demeanor of the witnesses.We defer to the trial court's assessments of credibility and — perhaps more importantly in this case — demeanor.SeeD'Aston v. Aston,844 P.2d 345, 355(Utah Ct.App.1992).Moreover, the trial court's detailed findings show that the best interests of the children were the trial court's primary concern.This is not a case, as Ms. Thomas argues, in which the custody award was based solely on Ms. Thomas's marital infidelity or on Mr. Sauer's character.Taken as a whole, the trial court's findings support its conclusion that Ms. Thomas's relationship with Mr. Sauer negatively affected her parenting ability and was contrary to the children's best interests, thus tipping the balance in this close case in Mr. Thomas's favor notwithstanding that the court viewed Ms. Thomas as a competent, loving parent and granted her liberal visitation.Accordingly, the court did not abuse its discretion in awarding custody of the children to Mr. Thomas.

ALIMONY

¶ 12We turn next to Ms. Thomas's challenge to the trial court's award of alimony."Trial courts have broad discretion in making alimony awards.Therefore, we will not disturb a trial court's alimony award so long as the trial court exercised its discretion within the appropriate legal standards, and `"supported its decision with adequate findings and conclusions[.]"'"Childs v. Childs,967 P.2d 942, 946(Utah Ct.App.1998)(citations omitted), cert. denied,No. 981807, 982 P.2d 88(Feb. 17, 1999).Ms. Thomas concedes the trial court properly considered the factors relevant to the alimony determination, as required by statute.SeeUtah Code Ann. § 30-3-5(7)(a)(1998).Hence, "`"we will not disturb the...