Harrison v. Harrison

462 P.2d 170, 23 Utah 2d 294, 1969 Utah LEXIS 541

Opinions

ELLETT, Justice.

By a divorce decree dated April 3, 1968, the defendant was awarded the custody of the minor children of the parties. The findings of fact, upon which the decree was based, specifically found that the plaintiff was not a fit and proper person to have the custody of the children and that the welfare of the children would best be served by awarding their custody to the defendant.

On December 17, 1968, a hearing was had upon plaintiff’s petition to modify the decree of divorce and to award the minor children to her. The court dismissed the petition upon motion after plaintiff and her two witnesses had testified. This appeal followed.

Only the appellant submitted a brief in this matter; however, we do not necessarily refuse to consider an appeal simply because a respondent is unable or unwilling to defend his judgment.¹ We reverse the trial court only when he has committed error which is prejudicial to the result reached, and not because of a default oil the part of the successful litigant.

The plaintiff’s brief does not comply with Rule 75 (p) (2), U.R.C.P., in that it does not contain a statement of points upon which appellant intends to rely for a reversal of the judgment or order of the court below. However, as best we can determine it, she thinks the trial judge erred in not talking privately with the children after both counsel invited him to do so.

Our statutes set forth the qualifications of witnesses as follows:

All persons, without exception, otherwise than as specified in this chapter, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses. * * *²

The following persons cannot be witnesses :

******

(2) Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.³

Rule 43(a), U.R.C.P., reads as follows:

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules

Two of the children were under ten years of age at the time, and the trial court had a discretion as to whether they should be permitted to testify in court. The other two were competent witnesses and could have been called.⁴ If the -court had refused to allow them to testify as he indicated, counsel could have made a tender of their testimony, which would have preserved his record. In this matter the court could have talked to the children but was under no duty to do so. He expressed himself in no uncertain terms that he would not talk privately to them, and then regarding having them testify he said:

I don’t intend to put these children on the witness stand — under oath, at their age — to tell the truth, the whole truth and nothing but the truth so help them God, and then rely on their testimony to determine whether either or [sic] the parents of these children is unfit to have the custody of the children; or whether they have been bribed, insinuated to, threatened, promised gifts, money, and a hundred and one other things, to induce them to go from paw to maw, or from maw to paw.

I don’t intend to do that, and I don’t think you people ought to have even the remotest desire in God’s world to prostitute your own children that way.

Counsel for plaintiff never made a tender of proof, and so we are unable to say that it was error not to talk to the children in chambers. For all we know, each of the children would have spoken favorably of defendant and expressed a desire to remain with him.

The order of the trial court is affirmed. Each party will bear his own costs.

CROCKETT, C. J., and TUCKETT, J., concur.

Footnotes

1

. Jones v. Logan City Corporation, 19 Utah 2d 169, 428 P.2d 160 (1967). Palfreyman v. Bates & Rogers Const. Co., 108 Utah 142, 158 P.2d 132 (1945).

2

. Sec. 78-24-1, U.C.A.1953.

3

. See. 78-24-2, U.C.A.1953.

4

. In reply to the dissent filed herein, counsel for appellant made it clear to the court that he did not intend to call the children as -witnesses in the next to the last statement he made in conn' ction with the trial, to wit: “Because — as I indicated to the Court — I rely upon the statements of the children, -which I could do from the witness stand, but in the best interest of the children I believe that it would be best served by having the Court interview the children, and I’ll rely on the testimony and the statements of the children for the balance of my case.”