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Show THE DAILY RECORD Wednesday, July 16f 1958 Extracts from Recent Decisions of the Supreme Court of the State of Utah Alma Phyllis Hall, tody of the children, alledgedly Plaintiff and Respondent, being neglected by plaintiff in an v, altmotspihere of polygamy. In January, 1955, plaintiff, the Lyman Bateman Hall, Defendant and Appellant children and her then husband No. 8772 Roestenburg traveled to Pocatello, Idaho, remaining a month. Then IIENRIOD, Justice: they all went to Mexico, remainAppeal from ta judgment award- ing there until November, 1955, ing plaintiff the custody of chil- after which they migrated to Aldren and an amount for support buquerque, N.M., where in 1957, money arrearages. Affirmed with plaintiff finally divorced Roestencoats to plaintiff. burg. It appears that the peripaAn equity case, we examine and tetics of plaintiff and Roestenburg weigh the evidence, and must af- had little or nothing to do with firm unless the trial courts con- the ultimate and inevitable apclusion obviously was against the pearance on the scene of Shirley weight of the evidence(l). We and Lois, who would then either believe a fain review of the evi- live in the same house with plaindence which we consider deter- tiff and Roestenburg, or not far minative here, reportable as fol- away, implying the existence of a unorthodox amiability lows: In July, 1949 the parties mar- amongst the four. In October, 1956, defendant peried. A daughter was bom in titioned son in a for modification of the March, February, 1950, in a divorce second daughter 1951, and decree, asking far custody April, 1952, a month after, the of the children on the ground of parties were divorced at Salt Lake neglect arising out of the alleged City in March, 1952. Plaintiff was polygamous climate in which the awarded custody of the children, children were being reared. Nowith right of visitation in defend-and- ; tice of blearing was published. In also $30 per month per child due course custody was awarded as support money. Thereafter de- ito defendant on plaintiffs fendant moved to Washington In May, 1957, plaintiff divorced state to work. He did not return to visit the children up to the Roestenburg in Albuquerque. In beginning of 1955, 'because, he July, 1957, plaintiffs attorney and adtestified, his work would not per- wrote her mother-in-lato whereabouts. it. vised thereafter as mit plaintiff plaintiffs Early took the children and left the The former immediately went to state of Utah. Albuquerque, armed with the It appears that for a time be- modified decree, and took possesfore July 1954, plaintiff and two sion of the children, delivering friends, Lois, a divorced wife of them to defendant in Olympia, one Roestenburg, and Shirley M. Washington. In August, 1957, plainlived at times either together or tiff petitioned to (have the custody in close proximity. It is only fair restored. At the hearing in Septo report that the evidence indi- tember, 1957, the trial court voidcates that Rostenburg was friend- ed the decree awarding custody ly and visited with all, under to defendant on the ground decircumstances suggesting a pos- fective notice had been given. It sible polygamous or adulterous ar- awarded custody to plaintiff, torangement. gether with a money judgment for In July, 1954, after divorcing accrued support money, from Lois, Rostenburg married plain- which this appeal was taken. At the hearing, after plaintiff tiff. A private detective employed Ocin that said she did not practice testified defendant had by to deliver tried he tober, 1954, polygamy, an objection on to defendant for support money grounds of immateriality was susthe plaintiff but could not contact tained to a question put to her as her. He also sought to serve her. to whether she knew Roestenburg with process. Since that time de- practiced the doctrine. Other quesfendant has paid nothing to plain- tions directed ito the private detiff, nor to her attorney, the court tective employed by 'defendant or her mother on her behalf. It concerning instances of alleged must be conceded that plaintiff meretricious associations and rekept herself pretty much beyond lationships between plaintiff, Roereach. Defendant spent a consid- stenburg, Shirley and Lois, ocerable sum in trying to locate her curring three years before in 1954, and the children, at least partial- were ruled out as being remote ly, it would seem, to serve process and immaterial. on her in an effort to gain cus Defendant says that 1) it was . ' rather non-appearan- w error to exclude such evidence of Roestenburgs past conduct with plaintiff and the two other women, and 2) it was error to give the money judgment for support money. As to 1): We believe that court was correct in its exclusion. Counsel had examined plaintiff at con- siderable length about her life with Roestenburg and with respect to any association he or the may have had with the two women mentioned. We cannot aee how, after plaintiff and Roestenburg been divorced - about four months, her knowledge as to what his present belief or conduct with other women would be material had as to her own fitness to have custody of the children, nor can we see how the testimony of the any other women; there was no evidence that the children were ever taught any principles relat-Igto polygamy. The trial court found that after April 15, 1957, the plaintiff did not live as . . . wife with Roestenburg and at no time was the relationship . . . such as to render the plaintiff unfit to retain custody. When and if it could be demonstrated, as it was in the Black case, that in their presence and with their knowledge, the plaintiff is found practicing and teaching the doctrine of plural marriage to her children, this court would be obliged to follow the principle in the Black case. In this connection, we think it elementary that the trial court may entertain continuing jurisdiction in cases like this, and in a proper proceeding may canvass any changed conditions, and effect any Shift in custody that such changed conditions might warrant, having in mind, of course, the highly respected and not easily divestible rights of either or both of the natural parents. As to the contention 2): That the court erred in reducing the unpaid support money to judgment, defendant relies on Larsen v. Larsen (3) in support thereof. Plaintiff stated that she did not seek out defendant to require payment because she was trying to enjoy a peaceful life and it Was not worth it to her at the time. Here any similarity to the Such Larsen case disappears. statement does not reflect any n ... for the support money, as was the basis far the Larsen decision. In truth, he said he was trying to make payment in October, 1954, but could not locate plaintiff. He intimated that he would have made payments had he been able to locate her thereafter. It would appear that Price v. Price would be controlling here (4). Although the record and the authorities cited do not justify this court in reversing the money judgment, it does seem that the defendants expenditures in attempting to locate the children and the plaintiff in what appears to have been an honest effort to do what he sincerely believed to be far the best interests of his own flesh and blood, whether right or wrong, coupled with plaintiffs peregrinations that appear likely to have amounted to a calculated concealment, should merit a compassionate attitude toward satisfaction of the obligation which this defendant, a wage earner, obviously cannot meet save with very great difficulty. detective concerning incidents three years prior thereto could be anything but remote, under the circumstances of this case. There was no evidence other than that plaintiff was the legal wife of Roestenburg from July, 1954 to May, 1957, when they were divorced, and none to the effect that, whether she at one time had WE CONCUR: embraced polygamy as a religious tenet or not, she either presently Roger I. McDonough, Chief Justice or for sometime past espoused or Allan J. Crockett, Justice practiced such dogma or attemptA. Lester Wade, Justice ed the unlikely chore of teaching W. Geo. Worthen, Justice it to her children, the eldest of which was only seven years old. 1. Alldredge v Alldredge, 119 Contrariwise, her testimony that she did not indulge the doctrine Utah 504, 229 P(2) 691 (1951). 2. 3 Utah (2) 315, 283 P(2) 1044. finds support in the fact that in 3. 5 Utah (2) 224, 300 P(2) 596 Albuquerque she sent her children ito the Sunday School of the 1956). Church of God, a church undedi- representation to defendant that 4. 4 Utah (2) 1953, 289 P(2) 1044 cated to the doctrine of plural he would not be held accountable (1955). marriages. Defendant .leans heavily on the case of In re State of Utah in the Interest of Black (2) to support its first point on appeal. Counsel for plaintiff seems ito have answered such contention in succinct language in his brief when he stated (deletions ours) : . . . the Black case is . . . different from the Instant case. Mr. Vera Johnson . . . was ... a plural and not 'a legal wife of Black; both . . . refused to refrain from teaching their children that polygamy was proper; and there is nothing in the Black ease which supports the proposition that a lawful wife becomes an unfit parent by reason of the activities of her husband with other women. In the instant case the plaintiff was the lawful wife of Roestenburg; there is no evidence that the children were ever aware of any conduct of Roestenburg with SUBSCRIPTION BLANK j Annual Subscription Rate $55.00 I THE DAILY RECORD 421 Church St. I Salt Lake City, Utah Gentlemen: I Kindly enter Businessman: subscription to your publication for enclose year beginning with the next issue. subscription price. The Daily Record is a source of valuable in- formation. Keep your mailing lists and sales campaigns effective with accurate information, compiled from authentic . I Name . Subscribe Today! I i I 6 |