Stevens v. Stevens

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Bradley A. Stevens,
Plaintiff and Appellant,

v.

Kori A. Stevens,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971702-CA

F I L E D
May 13, 1999 1999 UT App 160  -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Suzanne Marelius, Salt Lake City, for Appellant
G. Brent Smith and Steven C. Russell, Salt Lake City, for Appellee

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Before Judges Greenwood, Bench, and Jackson.

BENCH, Judge:

Appellant first argues that the trial court abused its discretion when it awarded custody of the minor child to appellee. Specifically, appellant contends that the trial court ignored the custody evaluations and other substantial evidence. "Because custody determinations are so fact-sensitive, there is no required set of conditions which the [trial] court must consider, but the applicability and relative weight of the various factors in a particular case lies within its discretion." Schindler v. Schindler, 776 P.2d 84, 88 (Utah Ct. App. 1989). "[I]t is not the function of appellate courts 'to determine the credibility of conflicting evidence or the reasonable inferences to be drawn therefrom.'" State v. Reed, 839 P.2d 878, 880 (Utah Ct. App. 1992) (quoting State v. Bagley, 681 P.2d 1242, 1244 (Utah 1984)).

The trial court supported its decision with detailed findings, including information from the custody and psychological evaluations, as well as the testimony presented at trial. In its findings, the trial court specifically adopted the custody evaluation of R. Jay Thomas, Ph.D., and also found the testimony of appellee credible and persuasive. The evaluations in this case, like the testimony, were often conflicting and inconclusive. For instance, the recommendation of the guardian ad litem reflects the guardian's frustration with her inability to fully assess the situation because the child remained in Arizona. Although conflicting evidence existed, "[t]he fact finder is free to weigh the conflicting evidence presented and to draw its own conclusions." State v. Pierce, 722 P.2d 780, 782 (Utah 1986). The record contains sufficient evidence to support the trial court's findings, and therefore we will not disturb them on appeal.

Next, appellant argues that the trial court abused its discretion in ordering supervised visitation without providing for later review of the matter. Visitation orders "'must be based on the child's best interests. Courts must give priority to the welfare of the children over the desires of either parent in determining visitation rights.'" Peterson v. Peterson, 818 P.2d 1305, 1308 (Utah Ct. App. 1991) (quoting Riche v. Riche, 784 P.2d 465, 469 (Utah Ct. App. 1989)). Furthermore, any "[r]estrictions placed upon visitation must be based upon 'all relevant evidence as to the children's present and future well-being.'" Id. (quoting Kallas v. Kallas, 614 P.2d 641, 645 (Utah 1980)). The trial court listed several factors it considered, and then concluded "that the child would be in danger should plaintiff be awarded unsupervised visitation." Additionally, there is ample evidence in the record to support the finding that the child cannot travel by plane because she suffers from chronic ear infections. Giving due regard to the trial court's advantaged position to judge the credibility of witnesses and weigh "all relevant evidence as to the [child's] present and future well-being," id., we cannot say that this finding is clearly erroneous. Furthermore, the trial court is not required to provide for a review of its order of supervised visitation because "all orders of visitation are subject to modification." Id. at 1309 n.1. See also Utah Code Ann. § 30-3-5(3) (1998) (granting the court continuing jurisdiction to modify orders); Utah Code Ann. § 30-3-34(4) (1998) (providing parties may alter visitation schedule by mutual consent or court order). Consequently, the trial court did not abuse its discretion in awarding liberal supervised visitation to take place where the child resides.

Appellant also asserts that the trial court erred in failing to hold appellee in contempt. "It is generally accepted that the issuance of an order relating to contempt of court is discretionary with the trial judge." Kunzler v. O'Dell, 855 P.2d 270, 275 (Utah Ct. App. 1993) (citing Bartholomew v. Bartholomew, 548 P.2d 238, 240 (Utah 1976)); see also McKay v. McKay, 13 Utah 2d 187, 189, 370 P.2d 358, 359 (1962) ( stating "it is within the [trial] court's discretion to determine whether a person is in contempt of court for failure to comply with the terms of [its order]"). The United States Supreme Court has cautioned that the contempt power is to be used with discretion and never exerted "where it is not necessary or proper." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 451, 31 S. Ct. 492, 502 (1911). Here, the trial court refused to hold appellee in contempt because it found that she "was at all times acting in good faith to protect her child." Once again, the trial court did not abuse its discretion because there is sufficient evidence in the record to support this finding.

Finally, appellant asserts that the trial court erred when it did not order mental health counseling for appellee and the minor child. However, the trial court adopted Dr. Burger's evaluation stating "that there 'are no strong indications that either parent is unable to care for the child by reason of mental illness.'" Based on this finding, the trial court did not err in failing to order ongoing mental health counseling.

Because competent evidence exists in the record to support the challenged findings, we will not disturb the trial court's decision on appeal.

Affirmed.
 
 
 

______________________________
Russell W. Bench, Judge

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WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 

______________________________
Norman H. Jackson, Judge