Marchand v. Marchand

2006 UT App 429, 147 P.3d 538, 563 Utah Adv. Rep. 7, 2006 Utah App. LEXIS 457, 2006 WL 2975320
CourtCourt of Appeals of Utah
DecidedOctober 19, 2006
DocketNo. 20051105-CA
StatusPublished
Cited by5 cases

This text of 2006 UT App 429 (Marchand v. Marchand) 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
Marchand v. Marchand, 2006 UT App 429, 147 P.3d 538, 563 Utah Adv. Rep. 7, 2006 Utah App. LEXIS 457, 2006 WL 2975320 (Utah Ct. App. 2006).

Opinion

OPINION

MeHUGH, Judge:

T1 Kristie Marchand (Mother) appeals the trial court's award of custody of her daughter (Daughter), to her ex-husband, Matthew Marchand (Father). She also argues that the trial court erred by denying her motion for a new trial and that her trial counsel was ineffective. We affirm.

BACKGROUND

T2 Mother and Father were married from June 1999 to January 2001. The parties divorce took place shortly after Daughter was born, and Mother was awarded custody. Father exercised visitation with Daughter after the divorce, although Mother's relocation to Arizona affected the frequency of those visits. Father eventually filed a petition seeking custody of Daughter, contending that Mother's boyfriend was emotionally abusive to Daughter and that Mother's frequent changes of residence created instability in the child's life. In a bifurcated proceeding, the trial court first determined that Father had demonstrated a material and substantial change in circumstances since the divorce decree. Then, after a three-day trial, the trial court awarded custody to Father, entering detailed findings supporting its conclusion that placement with Father was in the best interest of Daughter. Mother then filed a motion for a new trial, which the trial court denied.

T3 After being served with Father's petition to modify the custody decree, Mother allegedly paid her former boyfriend, Steve Burton, to take a paternity test to determine if he was Daughter's biological father.1 Mother and Burton had engaged in an extramarital affair while Mother was married to Father. According to Mother, the test came back with a 99.96 percent certainty that Burton was Daughter's biological father Although Mother had the results of the genetic testing long before trial, she never sought to admit them into evidence. Throughout trial, witnesses, attorneys, and even the court referred to Burton as the biological father of Daughter. Father, however, never stipulated or admitted that he was not the biological father of Daughter. Father testified that even if Daughter was not his biological child, that fact would not change his desire to obtain custody of her, provide for her support, and parent her.

ISSUES AND STANDARD OF REVIEW

{4 Mother challenges the trial court's decision to award custody of Daughter to Father. "Proper adjudication of custody matters is highly dependent upon personal equations which the trial court is in an advantaged position to appraise." Maughan v. Maughan, 770 P.2d 156, 159 (Utah Ct.App.1989) (quotations and citations omitted). The trial court is given "broad discretion" in making child custody awards, id., and "[wle will not substitute our judgment for that of the trial court unless the action it takes is so flagrantly unjust as to constitute an abuse of [that] discretion," id. at 160 (citation omitted).

T5 Mother also appeals the trial court's denial of her motion for a new trial. "A trial court has discretion in determining whether to grant or deny a motion for a new trial, and we will not reverse a trial court's decision absent clear abuse of that discre[541]*541tion." State v. Harmon, 956 P.2d 262, 265-66 (Utah 1998).

T6 Finally, Mother argues that her trial attorney rendered ineffective assistance. "When the question of trial counsel ineffece-tiveness is raised for the first time on appeal and our review is confined to the trial court record, we determine, as a matter of law, whether defense counsel's performance constituted ineffective counsel." State v. Ellifritz, 835 P.2d 170, 175 (Utah Ct.App.1992) (citation omitted).

ANALYSIS

I. Mother's Challenge to the Custody Award

A. Parental Presumption

T7 On appeal, Mother first argues that the trial court erred by not taking into account the "parental presumption" in awarding custody to Father. "In a controversy over custody, the paramount consideration is the best interest of the child, but where one party to the controversy is a nonparent, there is a presumption in favor of the natural parent." Hutchison v. Hutchison, 649 P.2d 38, 40 (Utah 1982). The presumption

recognizes the natural right and authority of the parent to the child's custody. It is rooted in the common experience of mankind, which teaches that parent and child normally share a strong attachment or bond for each other, that a natural parent will normally sacrifice personal interest and welfare for the child's benefit, and that a natural parent is normally more sympathetic and understanding and better able to win the confidence and love of the child than anyone else.

Id. (alterations, quotations, and citations omitted). The parental presumption can be rebutted only by establishing that a parent

lacks all three of the characteristics that give rise to the presumption: that no strong mutual bond exists, that the parent has not demonstrated a willingness to sacrifice his or her own interest and welfare for the child's, and that the parent lacks the sympathy for and understanding of the child that is characteristic of parents generally.

Id. at Al. If the parental presumption is rebutted, then the parties competing for custody stand on "equal footing," and custody is determined by examining factors relating to the best interest of the child. Id. Mother claims that she and Burton are the biological parents of Daughter and, therefore, she was entitled to the application of the parental presumption against Father in determining custody. We disagree.

T8 After reviewing the record in this case, we conclude that Mother failed to raise the parental presumption in the trial court. "As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional cireumstances." State v. Brown, 856 P.2d 358, 359 (Utah Ct.App.1998). "The trial court is considered 'the proper forum in which to commence thoughtful and probing analysis' of issues." Id. at 860 (quoting State v. Bobo, 803 P.2d 1263, 1273 (Utah Ct.App.1990). "Failing to argue an issue and present pertinent evidence in that forum denies the trial court 'the opportunity to make any findings of fact or conclusions of law' pertinent to the claimed error." Id. (quoting LeBaron & Assocs. Inc. v. Rebel Enters. Inc., 823 P.2d 479, 483 n. 6 (Utah Ct.App.1991).

T9 Mother's failure to preserve this issue is demonstrated by the trial court's comments in the hearing on Mother's motion for a new trial:

That matter [of paternity] was brought up and it was my memory that after it was brought up that there [were] no results of that test that were introduced into evidence and it kind of just stopped at that point and I asked, are people going to make an issue of this and it was my understanding that there wasn't an issue that was made of that.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 UT App 429, 147 P.3d 538, 563 Utah Adv. Rep. 7, 2006 Utah App. LEXIS 457, 2006 WL 2975320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marchand-v-marchand-utahctapp-2006.