Cummins v. Tiller

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Desiree Ann Cummins
fka Desiree Ann Tiller,
Plaintiff and Appellee,

v.

Timothy W. Tiller,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990634-CA

F I L E D
November 24, 2000 2000 UT App 334 -----

Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
G. Michael Westfall, St. George, for Appellant
R. Clayton Huntsman, St. George, for Appellee

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Before Judges Jackson, Davis, and Thorne.

JACKSON, Associate Presiding Judge:

We afford the trial court's permanent custody determination broad discretion. See Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). Our grant of broad "discretion stems from the reality that in some cases the court must choose one custodian from two excellent parents, and its proximity to the evidence places it in a more advantaged position than an appellate court." Id. Moreover, "[i]t cannot be said that a trial court has abused its discretion in awarding custody to one parent over another where analysis reveals that the best interests of the child would be served equally well with either parent." Id. at 1216.

Tiller's primary argument is that because the child had been living with him and thriving for more than a year, that stability should have been afforded primary weight and the trial court should not have awarded permanent custody to Cummins.(1) Stability in a child's surroundings is certainly an appropriate factor for the trial court to consider. See Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982). "But a child's interest in the stability of his or her present environment is only one of numerous factors properly considered by the trial court" when making a custody decision. Id.

Moreover, Tiller's custody of the child was pursuant to a temporary custody order. It is well settled that "a temporary custody order should not be given the weight of a permanent order," and indeed, changes in custody are subject to different standards for temporary and permanent orders. Tucker, 10 P.2d at 1215-16 (distinguishing Elmer v. Elmer, 776 P.2d 599 (Utah 1989)).

Essentially, Tiller is asking us to reweigh the evidence and draw a conclusion different from the trial court's, which we may not do. The record shows the trial court considered the required factors and made adequate findings thereon. The trial court found the factors weighed equally in favor of both parents, with the exception of the prior abuse perpetrated by Tiller. "Often, when there are two equally suitable parents, the trial judge may be compelled to base a custody award upon observations of the parents in court, the reactions of the child to each parent, or other factors." Tucker, 910 P.2d at 1215. The court in this case was faced with such a decision, and we cannot say the court's ultimate conclusion was an abuse of the broad discretion which we afford it.

Affirmed.
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

I CONCUR:
 
 

______________________________
William A. Thorne, Jr., Judge -----

DAVIS, Judge (dissenting):

I respectfully dissent from the scope of my colleagues' characterization of Tiller's request for relief on appeal to the extent that it circumscribes our review. While it is true that we cannot and will not do as Tiller urges and reweigh the evidence on appeal. Tiller also objects to the trial court's failure to make any findings regarding the "environment in which a child has lived prior to the final custody hearing . . . certainly should not be ignored . . . ." Tucker v. Tucker, 910 P.2d 1209, 1216 (Utah 1996).

As in Tucker, it is undisputed that environment is an important factor, and should not have been ignored by the trial court. Here, the majority observed that the "trial court found the factors weighed equally in favor of both parents, with the exception of the prior abuse . . . ." However, the trial court also found that the abuse "would [never] happen again. The Court is certain and convinced that . . . Defendant would never raise his hand to this child in that fashion ever again."

Under the facts of this case, I believe it was error to make no findings and no attribution of weight to the stability of the child's environment for more than a year, thereby impeding meaningful appellate review. See Butler, Crockett & Walsh Dev. Corp. v. Pinecrest Pipeline Operating Co., 909 P.2d 225, 231 (Utah 1995) ("'Failure of the trial court to make findings on all material issues is reversible error unless the facts in the record are "clear, uncontroverted, and capable of supporting only a finding in favor of the judgment."'") (citations omitted).

I would remand this matter to the trial court for specific findings and attribution of weight regarding the stability factor prior to making a final ruling.
 
 

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James Z. Davis, Judge

1. Tiller argues the trial court based its determination solely on two factors: the earlier incident of abuse and the fact that the child would be given an opportunity to travel through Europe if living with Cummins. However, the record reveals that the factor tipping the scales was Tiller's past abusive conduct. The trial court's comments about opportunity to travel were made regarding the court's decision to subject custody and visitation to change by motion rather than by petition.