Ebbert v. Ebbert

744 P.2d 1019, 69 Utah Adv. Rep. 41, 1987 Utah App. LEXIS 581
CourtCourt of Appeals of Utah
DecidedNovember 3, 1987
Docket860229-CA
StatusPublished
Cited by20 cases

This text of 744 P.2d 1019 (Ebbert v. Ebbert) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ebbert v. Ebbert, 744 P.2d 1019, 69 Utah Adv. Rep. 41, 1987 Utah App. LEXIS 581 (Utah Ct. App. 1987).

Opinion

OPINION

BENCH, Judge:

Plaintiff Eddie Ebbert appeals from several portions of his final decree of divorce. The decree is affirmed except for the portion dealing with visitation.

*1021 Plaintiff and defendant Barbara Ebbert were married June 19, 1976. They have two daughters, ages 7 and 6. On June 11, 1985, plaintiff filed for a divorce. In his complaint he asked that custody of the children be awarded to defendant and he be awarded extensive visitation rights. In her answer and counterclaim, defendant also requested custody of the children with reasonable visitation to plaintiff. In September 1985, plaintiff learned of defendant's plan to move with the children to Colorado.

On November 8, 1985, the parties presented to the court a proposed stipulated settlement under which defendant would be awarded custody of the children. The court accepted the stipulated settlement and heard evidence on grounds and jurisdiction. The parties were thereafter unable to agree upon the form and substance of the findings, conclusions, judgment, and decree. Consequently, the trial court set aside the stipulation and set the matter for trial on March 27, 1986.

At trial, plaintiff attempted to amend his pleadings to include custody as a contested issue. The court denied plaintiffs motion. In its final decree, the court granted both parties a divorce, awarded custody of the two children to defendant, ordered plaintiff to pay $325.00 per child per month in child support, awarded defendant $1.00 per year in alimony for two years, established a visitation schedule, and divided marital property and debts. The court filed its findings, conclusions, judgment, and decree on May 16, 1986. Plaintiff’s motion for a new trial was thereafter denied.

CUSTODY

On appeal, plaintiff primarily challenges the award of custody of the children to defendant. He argues the court’s findings were insufficient to support the custody award.

The Utah Supreme Court, in Smith v. Smith, 726 P.2d 423 (Utah 1986), held:

[I]f our review of custody determinations is to be anything more than a superficial exercise of judicial power, the record on review must contain written findings of fact and conclusions of law by the trial judge which specifically set forth the reasons, based on those numerous factors which must be weighed in determining “the best interests of the child,” and which support the custody decision.

Id. at 425 (quoting Hutchison v. Hutchison, 649 P.2d 38, 42 (Utah 1982)). With regard to custody in the instant case, the trial court merely found “The Defendant is a good mother and a fit and proper person to have the care, custody and control of said two children.” In Martinez v. Martinez, 728 P.2d 994, 995 (Utah 1986), the Utah Supreme Court held:

A mere finding that the parties are or are not “fit and proper persons to be awarded the care, custody and control” of the child cannot pass muster when the custody award is challenged and an abuse of the trial court’s discretion is urged on appeal.

The Smith and Martinez cases are distinguishable from the instant case. In Smith and Martinez, custody was hotly contested and, therefore, detailed findings were required for appropriate review on appeal. In the instant case, custody was not at issue. Both by pleading and stipulation, the parties agreed custody should be awarded to defendant. Although the parties were unable to agree on proposed findings, conclusions, judgments, and decrees, each draft thereof would have awarded custody to defendant. Finally, immediately prior to commencing trial, the court noted, “The court has previously ruled on the issues of jurisdiction, grounds, and custody, I believe.” We hold that when custody is not an issue, the specific findings required when custody is contested are not necessary. See Boyer Co. v. Lignell, 567 P.2d 1112 (Utah 1977) (it is the duty of the trial court to make findings on contested issues). To hold otherwise would burden the trial courts to prepare full, specific, detailed findings in every default divorce. When the parties presented to the court their proposed stipulation, the court questioned defendant as to her parental fitness and found her to be a fit and proper custodian of her own children. We find the *1022 court’s findings to be sufficient to support the custody decision.

Plaintiff argues that the issue of custody, although not in the pleadings, was clearly tried and therefore he was entitled to amend his pleadings accordingly. Utah R.Civ.P. 15(b) states:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court shall grant a continuance, if necessary, to enable the objecting party to meet such evidence.

Plaintiff contends testimony heard at trial regarding removal of the children from the court’s jurisdiction, plaintiff's and defendant’s relationship with their children, and their parental abilities and desires, which testimony was often objected to by defendant, clearly raised the issue of custody. However, such testimony is equally relevant to the issue of visitation as it is to custody. Furthermore, contrary to plaintiff’s claim that he was entitled to amend his pleadings, the Utah Supreme Court has held, “Although Rule 15 ... tends to favor the granting of leave to amend, the matter remains in the sound discretion of the trial court.” Stratford v. Morgan, 689 P.2d 360, 365 (Utah 1984). In denying plaintiff’s motion to amend his pleadings, the court ruled, “Well, I am not going to allow you to amend the pleadings at this late date. If custody were an issue, you could have had evaluations done, home studies done. We have not done any of that....” We find no abuse of the trial court’s discretion.

Despite the court’s ruling on plaintiff's motion, shortly thereafter the court offered plaintiff an opportunity to make custody an issue. Concerning visitation, plaintiff testified, “I'm afraid if I don’t see them every week for the kids’ physical health.

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Cite This Page — Counsel Stack

Bluebook (online)
744 P.2d 1019, 69 Utah Adv. Rep. 41, 1987 Utah App. LEXIS 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ebbert-v-ebbert-utahctapp-1987.