Smith v. Smith , 1977 Utah LEXIS 1134 ( 1977 )

CROCKETT, Justice:

Plaintiff, Randy Smith, appeals from an order in proceedings supplemental to a divorce in which the trial court took custody of the couple’s two children, now aged 8 and 3, from him and awarded custody to his former wife, Linda K. Jacobson Smith (now Moore).

Plaintiff contends (1) that there was not a sufficient showing of a change of circumstances to warrant modifying the decree; (2) that defendant has no absolute right to custody of minor children under ten years of age.

The plaintiff and defendant were married in North Salt Lake, Utah on March 23, 1968. Plaintiff filed this divorce action on August 23, 1975. On that same day, defendant signed a waiver consenting to the entry of her default and that custody of the children be awarded to the plaintiff; and upon an ex-parte hearing, Judge Ronald 0. Hyde of the Second District Court granted plaintiff a divorce, made a division of the parties’ property and awarded him custody of the two children. A motion by the defendant Linda to set aside the judgment, seeking modification of the decree as to property, and asking for custody of the children, was denied.

On October 10, 1975, plaintiff remarried to Vickie Smith. On November 1, 1975, defendant remarried to Randy Moore. On November 10, 1975, defendant filed a petition to modify the decree. The matter came before Judge Calvin Gould of the same court and he ordered an investigation of both homes. The report gave them both a favorable evaluation as to custody of the children; and showed the plaintiff’s home to have a combined monthly income of $1,296 and the defendant’s $1,380 Both parties rely on the report as supporting their claims to custody of the children.

Upon his appraisal of the total situation, Judge Gould concluded that it would be in the best interest of the children to be in the custody of their mother, defendant Linda, but with liberal visitation rights to their father, plaintiff Randy, which includes as minimums: one 24-hour period each weekend, one 2-hour evening period each week, one month during the summer school recess, with an equal division of holidays.

As to (1) above, we agree that even in divorce, matters, where the court has continuing jurisdiction to make subsequent orders with respect to the children and property rights as may be equitable and just,¹ when there has been an adjudication upon one set of facts, that should be res adjudicata thereon; and there should be no modification of such an adjudication unless it is shown that there is some substantial change in circumstances that would warrant doing so.²

The trial judge appears to have acted in full awareness of and in conformity with this rule. The changes of circumstances claimed by the defendant Linda upon which the trial court based the change in the decree are: that whereas defendant was sick and upset at the time she consented to the divorce, she is now in good health; is married to a man who loves her and the children and who will treat them well; that they have a suitable home and sufficient income to provide for them.

As to (2) above: there is no doubt about the correctness of the plaintiff’s contention that the trial judge was in error in referring to the “statutory presumption of a natural mother” to custody of children of tender years; and that she has no absolute right to their custody. However, appropriate to be considered on this problem is the fact that, irrespective of any statute, the invariably declared policy stated in our decisions is that “all things else being equal, preference should be given to the mother in awarding custody of children of tender years . . . [and this is true even when] . . . the divorce is granted to the father.”³

The trial court seems to have exercised considerable care to make what in his judgment was the best possible arrangement as to the custody of these children, in full awareness of the disappointing and disheartening effects it may have upon some of the parties involved, but with greater consideration for the welfare of the children. In that regard, it is further appropriate to have in mind that an award of custody of children in a divorce proceeding is not permanent. If circumstances change so that their welfare and best interests would be served thereby, the court has continuing jurisdiction and authority to make appropriate changes.⁴

We have no way of knowing whether the distinction between the “statutory presumption” and the natural presumption, or policy of the law, as explained above would make any difference to the determination and arrangement which appears to have been carefully considered and arrived at by the trial court. However, the plaintiff has correctly pointed out that the trial court was in error in stating that there is a “statutory presumption” in favor of the defendant in regard to custody of these children; and that he is entitled to have an adjudication thereon without applying any such statutory presumption. This controversy has been fully tried and considered by Judge Calvin Gould and it seems inadvisable that the parties and the courts be put to the necessity of a plenary re-trial. This case is therefore remanded to Judge Gould for the purpose of giving any further consideration to this matter he deems advisable, not inconsistent with the views expressed herein.

Remanded. No costs awarded.

ELLETT, C. J., and MAUGHAN, J., concur.

1 . Sec. 30-3-5, U.C.A. 1953.

2 . Anderson v. Anderson, 13 Utah 2d 36, 368 P.2d 264; Perkins v. Perkins, 522 P.2d 708 (Utah).

3 . So stated for this court through Justice Ellett in Hyde v. Hyde, 22 Utah 2d 429, 454 P.2d 884 and authorities cited therein, and see also McBroom v. McBroom, 14 Utah 2d 393, 384 P.2d 961.

4 .See Sec. 30-3-5, footnote 1 above, and see also Cox v. Cox, 532 P.2d 994 (Utah).