Nielsen v. Nielsen , 1980 Utah LEXIS 1041 ( 1980 )

MAUGHAN, Justice:

Defendant appeals from an order of the district court granting plaintiff’s petition to modify a decree of divorce by changing the custody of their minor son from defendant, the mother, to plaintiff, the father. Upon hearing, the trial court ruled that it was in the best interests of the child to transfer his custody to his father. The mother was granted liberal visitation rights, with a strong admonition to the father by the court of the consequences, if the mother’s rights were violated. The order of the district court is affirmed.

The minor child, Jimmy, was born December 29,1973. His parents were separated September 1, 1974. A decree of divorce of the parties was entered March 4, 1976, wherein, defendant was awarded custody. From the time of the divorce until Jimmy was four years old, plaintiff had no contact with him and was derelict in his duty to pay child support. Plaintiff claimed he had been unable to locate defendant, who had been residing in California. Contact was eventually established between the parties, and plaintiff and his present wife brought Jimmy to Utah for a number of visits. During one of these visits, plaintiff filed a petition seeking custody of the child on the ground that the conditions under which Jimmy was living were not in his best interest.¹ Jimmy returned with his mother to California, where they, plaintiff and his wife were tested and psychologically evaluated.'

Thereafter, a hearing was conducted. Based on the evidence adduced at the hearing and the recommendation in the psychological evaluation, the trial court changed custody to the father, plaintiff. The report indicated Jimmy was hyperactive and was in need of a parent, who was able to be warm, reactive and supportive to his considerable emotional needs. Neither plaintiff and his wife nor defendant was deemed to be of the personality type, which would be able to relate warmly to the boy. Thus, according to the report, the critical factor became the environment which the two contesting parties could provide. The mother had an unstable history and although professing an intention to change, had not done so. In contrast, plaintiff and his wife were purchasing a home in a middle-class neighborhood, with a large and extended family in the immediate area. This extended family of grandparents, aunts, uncles, and cousins was deemed a likely source of additional support for Jimmy’s emotional needs and would aid in providing an environment in which the boy could thrive. The financial stability of plaintiff was cited as an additional positive factor, in that he would have the ability to provide for the child’s needs in the future. The report concluded with a strong recommendation that plaintiff and his wife enter into a counseling arrangement to assist them in understanding the emotional needs of young children and to train them in effective parenting.

The evidence, concerning the environment in which Jimmy had lived with his mother in California, sustains the trial court’s ruling that it was in the child’s best interest to transfer custody to the father. The mother had lived with two different men, neither was the father of the two illegitimate, younger children she had borne. Defendant had worked only spasmodically and primarily lived on welfare. She had been involved in an altercation with one of her paramours in which she sustained injuries requiring hospitalization. This incident was emotionally traumatic to Jimmy. The evidence indicates the instability of the environment was detrimental to Jimmy’s development.

In Trego v, Trego² this court reiterated the controlling principles in a proceeding for modification of a custody award. First, a decree of divorce will not be modified in the absence of a showing of a substantial change of circumstances in accordance with Section 30-3-5, Utah Code Annotated, 1953. Second, the paramount consideration of the court is the welfare of the children, and where custody has been determined, and the children appear to be well adjusted and happy, they should not be compelled to change their home unless there be a substantial reason to effect a change.

In an appellate review, particularly broad discretion is conferred on the trial court concerning child custody incident to a divorce proceeding:

“. . . A determination of the ‘best interests of the child’ frequently turns on numerous factors which the trial court is best suited to assess, given its proximity to the parties and the circumstances. Only where trial court action is so flagrantly unjust as to constitute an abuse of discretion should the appellate forum interpose its own judgment.”³

On appeal defendant contends that the evidence is insufficient either to prove a sufficient change of circumstances to warrant a change of custody or to support a finding that the best interests of the child would be served by the modification of the decree.

The facts recited ante clearly refute these contentions. Defendant has had the care and custody of Jimmy since his. infancy, during that time she has failed to establish a stable, supportive environment for her child, which has been to his detriment developmentally. In contrast, since the divorce, plaintiff has remarried and established a stable, permanent home, which can provide an environment, with the assistance of the extended family, in which Jimmy can thrive. The evidence clearly sustains the ruling of the trial court that it was in the child’s best interest to modify the custody provisions in the decree of divorce.

Finally, defendant contends that as a matter of policy the court should not have modified custody on the ground plaintiff interfered with defendant’s custody immediately prior to the initiation of these present proceedings. On the advice of counsel plaintiff detained Jimmy two days beyond the termination of his visitation period for the purpose of seeking legal intervention prior to his return to California. Defendant cites Section 76-5-303, Utah Code Annotated, 1953, as amended, of the Criminal Code, which deals with the crime of custodial interference, a class B misdemeanor, as establishing the public policy of this State. Section 76-5-303(1), provides:

“A person, whether a parent or other, is guilty of custodial interference if, without good cause, he takes, entices, conceals or detains a child under the age of sixteen from his parent, guardian, or other lawful custodian;

(a) Knowing he has no legal right to do so; and

(b) With intent to hold the child for a period substantially longer than the visitation or custody period previously awarded by a court of competent jurisdiction.”

The actions of plaintiff do not fall within the purview of the statute. The detention was brief and was predicated on a good faith belief of plaintiff that he had good cause, which he substantiated by filing a petition for modification and receiving a temporary restraining order to prevent the child from being removed from this State until the custodial issue could be determined. The matter was expeditiously determined-defendant departed to California with the child, with a court order to arrange a psychological evaluation and to return to Utah for a hearing on the petition. The acts of plaintiff cannot be deemed an adequate basis to deny him a hearing on his petition, particularly when the paramount concern of the courts is the welfare of the child.

CROCKETT, C. J., and WILKINS and STEWART, JJ., concur.

1 . This proceeding occurred before July 1, 1980, the effective date of the Utah Uniform Child Custody Jurisdiction Act, 1980 Laws of Utah, ch. 41.

2 . Utah, 565 P.2d 74-75 (1977).

3 . Jorgensen v. Jorgensen, Utah, 599 P.2d 510, 511-512 (1979).