Tuckey v. Tuckey

649 P.2d 88, 1982 Utah LEXIS 1001
CourtUtah Supreme Court
DecidedJune 30, 1982
Docket17189
StatusPublished
Cited by25 cases

This text of 649 P.2d 88 (Tuckey v. Tuckey) 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
Tuckey v. Tuckey, 649 P.2d 88, 1982 Utah LEXIS 1001 (Utah 1982).

Opinions

STEWART, Justice:

Larry Dean Tuckey and Debra A. Tuckey (now Trevizo), were divorced in 1976. Debra was awarded permanent custody and control of their two minor children, Larry Dean Tuckey, Jr., born March 22,1975, and Christopher Lee Tuckey, born July 30,1976. Frank and Mary Tuckey, the paternal grandparents of the two minor children, petitioned to intervene in the matter of the children’s custody. On February 15, 1979, their petition was granted, as well as their request for temporary custody. Upon hearing the matter, the court concluded there was no compelling evidence presented to defeat the mother’s rights to custody. A motion for a new trial or in the alternative a motion to reopen and take additional testimony was filed by the grandparents. The court’s denial of the motion resulted in this appeal.

While the children were in her permanent custody, Debra temporarily left the state, leaving the children in her mother’s care. During Debra’s absence, the paternal grandparents visited the children and Debra’s mother voluntarily relinquished the children to the paternal grandparents. While caring for their grandchildren, the paternal grandparents filed a motion to intervene. They were awarded temporary custody, pending a final order. The children were in the custody of the paternal grandparents for approximately one year.

The paternal grandparents testified that while they had temporary custody, Debra contacted the children very infrequently. The grandparents not only indicated that Debra took the children to bars, but further testified that the children had attempted to imitate sexual behavior which the children claimed they witnessed between their mother and a boyfriend. Larry, the children’s father, testified that he no longer believed the mother should have custody because her household was unkempt and unsanitary when he observed it. Debra and her mother both testified at trial. Debra, twenty-four, married three times, and the mother of four children, testified that the children had never been exposed to any sexual acts and that she did not take them to bars.

The court ordered that a family evaluation be conducted. A Department of Social Services counselor observed the children twice in the presence of their paternal grandparents and once in the presence of their mother. Although the mobile home where Debra and her husband reside was found to be clean and appropriate for the care of young children, the discrepancy between the children’s behavior in the presence of their paternal grandparents and their mother’s presence resulted in a report indicating the interests of the minor children would best be served by allowing them to remain under the care of the paternal grandparents.

The trial court awarded custody to the mother. Although the court concluded that both the grandparents and Debra were fit, there were no findings regarding either the testimony of the social worker or the conflicting evidence presented by the parties concerning defendant’s conduct.

A motion for new trial or in the alternative to open judgment and take additional testimony was filed, referring to newly discovered evidence concerning the children’s dissatisfaction with the idea of returning to their mother’s custody. The motion was denied.

On appeal the grandparents contend that the trial court applied the wrong standard in determining custody. Arguing that it was improper to apply a standard that makes a parent’s fitness determinative, [90]*90they submit that the proper standard is the best interest of the children, notwithstanding a parent’s fitness. The grandparents further assert that the evidence adduced at trial, evaluated in light of the best interest standard, requires, as a matter of law, that they be awarded' custody. Finally, they contend that the order is invalid because of discrepancies between the findings of fact and conclusions of law and the evidence presented at trial.

The initial issue is whether there is an adequate showing of a substantial or material change in circumstances to render this an appropriate case for re-opening the custody award for reconsideration. Hogge v. Hogge, 649 P.2d 51 (Utah 1982). The conduct of the mother, coupled with the defendant’s mother’s release of the children to the paternal grandparents, and the events resulting from that act, clearly constitute a -sufficient change in circumstance to warrant reconsideration of the custody issue in this instance.

We now turn to the issue of the appropriate standard for determining custody arrangements. Although the trial judge in the course of the trial referred to the parents’ fitness as a governing standard, the conclusions of law reflect that the court in fact applied the best interest of the children standard. Custody should be determined by focusing on the children’s welfare and best interest, albeit with a presumption in favor of the natural parents.1 Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982). Hardcastle v. Hardcastle, 118 Utah 192, 221 P.2d 883 (1950). That presumption, however, is not conclusive. See In re R_ L.._, 17 Utah 2d 349, 411 P.2d 839 (1966). Although the presumption “cannot be rebutted merely by demonstrating that the opposing party possesses superior qualifications,” it can be rebutted by establishing 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 the understanding of the child that is characteristic of parents generally.” Hutchison v. Hutchison, 649 P.2d at 41. Certainly, in light of the conduct of the mother in this case, we do not wish to convey the idea that the presumption cannot or indeed has not been rebutted in this case. However, that is a matter for a finding by the trial court, not this Court.

In assessing the issue of where a child’s best interest lies, assuming the parental presumption, it is instructive to note that in Wilson v. Family Services Division, Utah, 554 P.2d 227, 230 (1976) (quoting Commonwealth ex rel. Stevens v. Shannon, 107 Pa. Super. 557, 563, 164 A. 352, 354 (1933)), we recognized that “[t]he affection of a grandparent can safely be said to be no less in depth than parental affection,” and in Walton v. Coffman, 110 Utah 1, 169 P.2d 97 (1946), this Court specifically held that children’s best interest and welfare may require that custody be awarded to their grandparents rather than their mother, despite a finding that their mother is fit.

Application of the proper standards in this case is not possible because of difficulty with the trial court’s findings. Without specific findings, we cannot properly review the trial court’s order modifying the previous decree. Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982); Stoddard v. Stoddard, Utah, 642 P.2d 743 (1982); Chandler v. West, Utah, 610 P.2d 1299 (1980).

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Tuckey v. Tuckey
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Bluebook (online)
649 P.2d 88, 1982 Utah LEXIS 1001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tuckey-v-tuckey-utah-1982.