Tucker v. Tucker

• Decision Date: 17 January 1996
• Docket Number: No. 940486,940486
• Citation: 910 P.2d 1209
• Parties: Cherie Lynn TUCKER, Plaintiff and Respondent, v. James Calvin TUCKER, Defendant and Petitioner.
• Court: Utah Supreme Court

Page 1209

910 P.2d 1209

Cherie Lynn TUCKER, Plaintiff and Respondent, v.James Calvin TUCKER, Defendant and Petitioner.

No. 940486.

Supreme Court of Utah.

Jan. 17, 1996.

Suzanne Marelius, Salt Lake City, for plaintiff.

Mary C. Corporon, Salt Lake City, for defendant.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

RUSSON, Justice:

This is a divorce action in which the trial court awarded permanent physical custody of a minor child to her father.The mother appealed the trial court's decision to the Utah Court of Appeals.The court of appeals held that the trial court's findings of fact were inadequate to support the custody award and reversed and remanded for further findings.Tucker v. Tucker, 881 P.2d 948, 955(Utah Ct.App.1994).The father, contesting the court of appeals' reversal, petitioned for a writ of certiorari which this court granted.Tucker v. Tucker, 890 P.2d 1034(Utah1994).

I.BACKGROUND

Cherie Lynn Tucker(Lynn) and James Calvin Tucker(James) were married February 26, 1988.The couple separated in June 1991.Lynn, with James's assent, took their three-year-old child to live with her.On September 27, 1991, Lynn filed a complaint for divorce in Third District Court.Approximately one month later, the parties appeared before a district court commissioner to resolve various contested and uncontested matters pending final resolution of the litigation.One of the contested matters involved temporary custody of their child.The commissioner recommended that Lynn have temporary custody and that the parties submit to a custody evaluation.The trial court agreed and entered an order granting temporary custody to Lynn.The court further ordered James and Lynn to submit to a custody evaluation to be performed by an evaluator mutually agreed upon by the parties.

The evaluator mutually chosen by the parties, Dr. Monica Christy, rendered a report recommending that James and Lynn have joint legal custody of their child but that James be awarded physical custody.Thereafter, Lynn retained another evaluator, Dr. Donald Strassberg, who prepared a report as to her parental ability.However, because he did not evaluate James, Dr. Strassberg made no recommendation as to which parent would be the best custodian.

The matter came to trial on February 22 and 23, 1993.Testimony was received from Lynn, James, Dr. Christy, Dr. Strassberg, Carol Birch(Lynn's mother), Donna Steadman(the child's day care provider), and several individuals who had been neighbors of the parties during their marriage.Also, the reports of both Dr. Christy and Dr. Strassberg were received into evidence.

The evidence revealed that Dr. Christy interviewed both James and Lynn, their daughter, Carol Birch, and Donna Steadman.She reported that while both parents seemed able to care for the child and appeared equally bonded to her, she had concerns about Lynn's mood swings and unstable relationships.Dr. Christy stated, "Mrs. Tucker is not as settled in her identity, has been given to mood swings, and is more conflicted and less stable in relationships with others" and predicted that "continued fluctuations in mood and relationships seem likely."Dr. Christy further expressed concern about Lynn's stability in her personal relationships due to her two short marriages and her commencement of a third intimate relationship within one year prior to trial.Dr. Christy suspected that Lynn would continue to have relationship problems with both men and women until she made more progress in therapy and confronted repressed feelings.Dr. Christy also stated that considering each parent's work schedule, the child would be in surrogate care approximately the same amount of time if she were placed with either parent.On the basis of her interviews and assessments, Dr. Christy recommended that James should have physical custody.

Dr. Strassberg testified that he met with Lynn, the child, and Lynn's therapist, Dr. Jodie Leslie, but did not interview James.Although Dr. Strassberg agreed with Dr. Christy as to Lynn's history of mood fluctuations, he differed as to the extent of Lynn's emotional problems.In his evaluation, Dr. Strassberg reported that Lynn had improved through counseling and medication.He further reported that Dr. Leslie viewed Lynn as normal and an excellent mother.Dr. Strassberg looked upon Lynn's relationship with, and care of, the child for eighteen months between the temporary custody order and the trial as factors weighing heavily in her favor.According to Dr. Strassberg, during the child's stay with Lynn, she"thrived under her mother's care."Further, Dr. Strassberg's report described the relationship between Lynn and her daughter as very strong.Because his investigation did not include an evaluation of James, Dr. Strassberg stated that he was "unable to address the absolute or relative merits of James Tucker as a custodial parent."Nevertheless, Dr. Strassberg found no deficiency as to Lynn's parental ability.

Lynn Tucker gave testimony concerning her relationship with the child.Generally, Lynn described the relationship as close and open.She testified that they would go to the park, to movies, and for ice cream.

Lynn also discussed her personal life during the parties' separation.Lynn described herself as a lesbian, involved in an amorous cohabitation with another woman.Their cohabitation began in September 1992 when Lynn's companion moved in with her and her daughter at the home of Lynn's mother.Lynn further testified that shortly before trial, she and her companion purchased and moved into a home.

In addition, Lynn testified that during the eighteen months in which she had temporary custody, she and her daughter moved three times.After the separation, they moved from the marital residence and lived alone in a home in Sandy, Utah.A year later, the two moved to the home of Lynn's mother in Salt Lake City.After approximately seven months, they moved to a third residence.According to Lynn, during this time, the child stayed with James on alternating weekends and James could visit any other time as long as he called ahead.

Lynn further testified that during the marriage, she and James shared the primary care of the child equally; she cared for the child while James worked, and James saw to her needs while Lynn worked.In addition, Lynn explained that during the times when neither parent was working, each took turns meeting the child's essential needs.With regard to her work schedule, Lynn testified that after the child's birth, she maintained her job as a customer service representative for TCI Cablevision of Utah.In discussing her usual work schedule, Lynn testified to the effect that she would work 189 hours over a four-week period.

James testified that he worked for TCI Cablevision of Utah as an installer technician and to the effect that over a four-week period, he would work 180 hours.Also, James testified that since the separation, he remained in the marital home.In addition, James discussed his involvement in his child's life following the separation, which included weekday meetings and lengthy visits on alternating weekends when he would retrieve her on Thursday evenings and keep her through Sunday evenings.In addition, James described himself as an active member and regular attender of his church.

Donna Steadman, the child's day care provider for three months during the parties' marriage, testified that the child seemed more closely attached to her father.When she became injured or upset, she would cry out for James rather than for Lynn.Also, several neighbors of the parties testified that James often cared for the child alone while Lynn visited friends.Finally, Lynn's mother testified that the child's involvement in church activities was important and enjoyable to her but that Lynn's church attendance was irregular.

Following a two-day trial, the trial court awarded James custody on the basis of the following findings of fact:

22.The court finds that the issue of greatest concern to both parties to this action is the issue of child custody.It is reasonable, just and proper, and is in the best interest of the minor child, that [James] be awarded the permanent physical care, custody, and control of the child, subject to [Lynn's] reasonable and liberal rights of visitation as defined below.In support of this finding regarding custody, the court makes the following specific findings:

a. A child custody evaluation was conducted herein by Dr. Monica Christy, who was the only independent evaluator at the time of trial, regarding the issue of custody.Dr. Monica Christy recommended that [James] have custody of the parties' minor child.An evaluation was conducted herein by Dr. Donald Strassberg, who assessed [Lynn] and the parties' child, but did not assess [James].Dr. Strassberg found that [Lynn] was a fit and appropriate parent and that custody should be awarded to [Lynn].The court finds that it should rely on the recommendation of Dr. Monica Christy and should not accept the recommendation of Dr. Donald Strassberg;

b. The minor child is now four years of age and is not yet attending school.[Lynn] has had the temporary care, custody and control of the minor child during the pendency of these divorce proceedings, at first by reason of the parties' conduct, and then pursuant to temporary order of this court, and this condition has existed since approximately July 1, 1991;

c. The court finds that a change in custody of the minor child from [Lynn] to [James] will not be substantially traumatic to the minor child because of her age, general condition of health and well being as testified to by Dr. Monica Christy, and Dr. Donald Strassberg, the level of bonding to her father, and the circumstances of the parties.The court finds that in the long run, any trauma caused by a change in the custody arrangement will be temporary and will be off-set by a long term advantage of the minor child...