Boals v. Boals

664 P.2d 1191, 1983 Utah LEXIS 1049
CourtUtah Supreme Court
DecidedMay 18, 1983
Docket18172, 18187
StatusPublished
Cited by6 cases

This text of 664 P.2d 1191 (Boals v. Boals) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boals v. Boals, 664 P.2d 1191, 1983 Utah LEXIS 1049 (Utah 1983).

Opinions

HALL, Chief Justice:

The decree of divorce in this case placed the minor child of the parties in the temporary custody of the defendant father for a period of eighteen months. Both parties filed appeals, which have since been consolidated. Plaintiff challenges the custody award as not being supported by adequate findings of fact, while defendant asserts error in not adjudging permanent custody in him. He also challenges the propriety of the alimony award to plaintiff.

The evidence at trial viewed in the light most favorable to the judgment of the trial court was that defendant had an open, loving, spontaneous and warm relationship with the child not enjoyed by plaintiff, whose relationship was more distant and less spontaneous or affectionate.

When both parents arrived home from work, plaintiff would proceed to care for her own needs, while defendant would assume the responsibility of meeting the needs of the child. He consistently provided the primary care of the child, changing, feeding and entertaining her, and from that close contact their relationship grew. Plaintiff played a much smaller role in the activities, and on weekends, plaintiff usually slept in, while defendant arose and cared for the child.

Plaintiff experienced a series of extramarital affairs, which caused the marriage to disintegrate. Defendant also admitted a single act of infidelity two years prior, “brought on” by plaintiff’s admission of an extramarital affair she had gone through.

The parties had agreed upon the establishment of an educational fund for their child, but at the time of the divorce plaintiff insisted that it be divided between the parties rather than being retained for the child.

Defendant had been employed as a salesman for the past fourteen years and intended to continue that employment, which gave him a very flexible schedule and permitted him to be at home every night, with the exception of a trip to Rock Springs, Wyoming, every six weeks.

Plaintiff earned $8,600 from part-time employment in 1980. She had a fellowship from Houston University, which required three days of classwork each week and which paid her from $5,000 to $7,000. She also had part-time work at $6 to $8 per hour.

The trial concluded on October 26, 1981, and on November 3, 1981, the trial judge filed a memorandum decision, which reads in pertinent part as follows:

[1193]*11937. The court recognizes that the main controversy in this case is the custody of the child, Nicole Marie, now nearing two years of age. The court finds that both parents are fit and proper parties to serve as custodial parent[s]. However, what should be done under the existing facts and circumstances for the best interest of the child is of controlling importance to the court. Plaintiff has elected to return to college for further studies and is now enrolled at a university in Houston, Texas. She contemplates it will take her three years to complete her studies for the degree she now seeks. Her circumstances are such that she will have to seek employment while attending the university. Such employment, coupled with attendance and study at the school will require a substantial portion of her time. The court recognizes that defendant's employment responsibilities will require s [sic] substantial portion of his time and each will have to rely upon the services of baby sitters [sic]. The existing circumstances suggest that defendant is in a position to best furnish that care while plaintiff is purusing [sic] her studies. A child custody evaluation supports that conclusion. I thus award temporary custody of the child, Nicole Marie, to the defendant while plaintiff is pursuing her studies, reserving to the plaintiff the right to bring the question of final custody before the court upon termination of her attendance at any university. Such change of custody is to be effected during the Christmas holiday season in December, 1981, pending which defendant is to pay plaintiff $300.00 per month child support during that period of time.
* * * * * sfe
10. Plaintiff is awarded $300.00 per month as alimony during the period he has custody of the child with the court to review the matter of alimony and make such decision with respect thereto as it deems just at the time the question of permanent custody of the child is determined.

Upon receipt of the judge’s memorandum decision, both parties moved to modify the order of custody. Following hearing and argument on the respective motions, in a second memorandum decision dated December 8,1981, the judge further ruled in pertinent part as follows:

Defendant moved to modify the decision as to change of custody at the end of December, 1981, because of plaintiff’s alleged refusal to allow defendant to communicate with the child and the allegation she had commenced to live with another man. Plaintiff’s motion to alter the decision with respect to custody was based upon the fact that since receipt of the court’s memorandum decision regarding custody, she had withdrawn from school and was contemplating marriage with Lawrence Corcoran upon the decree becoming final. She supported her motion with an affidavit of Stephen E. Trotter, a school psychologist, to the effect that a female child should be left with the mother.
This court’s decision to award temporary custody to defendant was not based solely upon plaintiff’s intent to attend school and her need to seek employment. Other factors were involved which had a material bearing on that decision which I find are not altered by the withdrawal from school. However, since plaintiff’s withdrawal changes the circumstances on which the three year time table for fixing permanent custody was based, temporary custody is awarded to defendant for a period of eighteen months from January 1, 1982, following which period of time plaintiff may petition the court to examine then existing circumstances and to then determine the matter of permanent custody. Thus, except as herein altered the respective motions to amend as requested are denied.

Ultimately, on December 22, 1981, the judge entered his formal findings of fact, conclusions of law and decree, which incorporated the content of his prior memorandum decision.

[1194]*1194In surveying the adequacy of findings of fact and conclusions of law, this Court is of course free to consider them in the light of, and together with the prior memorandum decisions of the trial judge.1 When this is done, it becomes abundantly clear that the judge made a commendable effort to tailor his judgment to meet the best interests of the child of the parties.

Contrary to plaintiff’s assertion, the trial judge did not conclude that the parties were equal parents. Rather, he determined that “both parents are fit and proper parties to serve as custodial parent[s].” Notwithstanding the apparent differences in the respective parental abilities of the parties, the judge saw fit to defer his determination of permanent custody for a reasonable length of time, as it was his prerogative to do. In so doing, the judge was no doubt weighing the best interests of the child, mindful of the usually unique role played by a mother in caring for a child of tender years.2

Concededly, the trial judge’s findings of fact are meager and it would have been advisable for him to have set forth his findings in greater detail.

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Mineer v. Mineer
706 P.2d 1060 (Utah Supreme Court, 1985)
Pennington v. Pennington
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Wall v. Wall
700 P.2d 1124 (Utah Supreme Court, 1985)
Boals v. Boals
664 P.2d 1191 (Utah Supreme Court, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
664 P.2d 1191, 1983 Utah LEXIS 1049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boals-v-boals-utah-1983.