Mathie v. Gough

----ooOoo----

Gary Mathie,
Plaintiff and Appellant,

v.

Twila Gough,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981452-CA

F I L E D
July 15, 1999
  1999 UT App 22 -----

Second District, Farmington Department
The Honorable Jon M. Memmott

Attorneys:
David R. Maddox and Joseph R. Goodman, Sandy, for Appellant
Frank G. Smith and Wendy F. Fenton, Ogden, for Appellee

-----

Before Judges Wilkins, Bench, and Orme.

PER CURIAM:

Appellant appeals a final judgment of the trial court granting permanent physical custody of the parties' minor child to appellee. We affirm.

In determining child custody, "trial judges are afforded broad discretion." Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996) (citations omitted). This court will not disturb a custody award unless "the trial court's judgment is so flagrantly unjust as to be an abuse of discretion." Id. (quoting Shioji v. Shioji, 712 P.2d 197, 201 (Utah 1985)). In exercising its discretion, the trial court should be guided at all times by the best interests of the child. Id.; Paryzek v. Paryzek, 776 P.2d 78, 81 (Utah Ct. App. 1989). Often, in keeping with this standard, the court's determination will "of necessity require a choice between good and better." Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982). In this case, the choice was a difficult and apparently close one, but we find in it no abuse of discretion.

The trial court properly considered appellant's criminal history as one of several factors relevant to a determination of custody in the best interests of the child. Contrary to appellant's assertion that the history is irrelevant because it occurred prior to the child's birth and thus does not bear on his ability to parent, the law clearly provides that the court should evaluate not only a party's ability to parent, but also the party's "past conduct and demonstrated moral standards," Utah Code Ann. § 30-3-10(1) (1998), including their criminal history. See Hansen v. Hansen, 736 P.2d 1055 (Utah 1987); Smith v. Smith, 726 P.2d 423 (Utah 1986).

Further, the trial court properly considered the existing primary custodial relationship as a relevant factor in assessing the best interests of the child. See Tucker, 910 P.2d at 1216; Davis v. Davis, 749 P.2d 647, 649 (Utah 1988); Hansen, 736 P.2d at 1058; Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986). There is a "general interest in continuing previously determined custody arrangements where the child is happy and well adjusted," due to the critical need to maintain stability in a child's life. See Paryzek, 776 P.2d at 81-82. The trial court did not consider the existing primary custodial relationship in a vacuum, rather, the court weighed the factor along with several other relevant factors in a very close case that the court admitted was "almost a Solomon decision."

The court had the unenviable task of selecting a permanent custodian from two candidates who were equally qualified in ability, stability, commitment, and suitability of environment, where one's questionable taste in calendars balanced out against the other's ill-advised habit of smoking around the child, and both were able to provide personal rather than surrogate care for the child due to a mutual disinterest in or unsuitability for employment.

We conclude that the trial court did not abuse its discretion in ruling that it was in the child's best interest to award permanent custody to appellee. Affirmed.
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge