Dunn v. Dunn

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Dunn v. Dunn, Case No. 20000399-CA, Filed June 7, 2001 IN THE UTAH COURT OF APPEALS

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Cory Dunn,
Plaintiff and Appellant,

v.

Valerie Dunn,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000399-CA

F I L E D
June 7, 2001 2001 UT App 181 -----

Second District, Ogden Department
The Honorable Parley R. Baldwin

Attorneys:
John Walsh, Salt Lake City, for Appellant
Valerie Dunn, Roseville, California, Appellee Pro Se

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Before Judges Greenwood, Bench, and Davis.

GREENWOOD, Presiding Judge:

Cory Dunn (Father) appeals the trial court's custody award to Valerie Dunn (Mother). We accord broad discretion to a trial court's decision determining permanent custody of minor children. See Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). The trial court is in the best position to evaluate the factors involved in determining custody, and we defer to that determination absent abuse of discretion. See Riche v. Riche, 784 P.2d 465, 467 (Utah Ct. App. 1989); see also Tucker, 910 P.2d at 1214. This "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." Tucker, 910 P.2d at 1214. Thus, "the determination of custody 'may frequently and of necessity require a choice between good and better.'" Id. (citation omitted).

In Paryzek v. Paryzek, 776 P.2d 78 (Utah Ct. App. 1989), this court explained that "trial courts must examine a child's need for stability, and therefore, consider prior custody arrangements, including the duration of those arrangements, and the potential harm to the child if the arrangement is changed." Id. at 82. Here, the trial court factored in the children's need for stability and Father's custody prior to trial in determining the children's best interest. Contrary to Father's contention, the trial court did consider the custody evaluation, but chose not to implement its custody recommendation based on other testimony and evidence. The trial court considered the entire course of the marriage and found that Mother was the primary caregiver. The court also found that Mother would be more cooperative than Father in providing visitation, and that the children would not be adversely affected by moving to California with Mother. Based on these factual findings and others, the trial court concluded that Mother should be awarded custody of the children. We will not upset the trial court's findings "unless clearly erroneous." Utah R. Civ. P. 52(a). Mother's testimony and other evidence support the trial court's findings; thus, we find no error.

In sum, the trial court considered the custody evaluation, but came to a different conclusion regarding who should be awarded custody. Although the trial court found that both parents were qualified, the court found that it was in the children's best interest to be placed in the permanent physical custody of Mother, and we defer to that decision. See Hudema v. Carpenter, 1999 UT App 290,¶38, 989 P.2d 491 ("In this admittedly close case in which the court had to choose between two good parents . . . we must defer to the trial court's broad discretion and affirm its conclusion that [the children's] interest would best be served by awarding . . . primary physical custody [to one parent].").

Accordingly, we affirm.
 
 

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Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 

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Russell W. Bench, Judge
 
 

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James Z. Davis, Judge