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Show THE DAILY RECORD Page'S. THURSDAY, MARCH 26, 1970 , I S. L. City Business Licenses Lloyd Miller, 1388 S Middle East Center, phone 322-618- 1; 2nd G, U of U, MA: ole; business Import Daves I S W uplicating equip Temple, sic; S appliance repair Service, etc & Valley Enterprises, Gifts by mall order recordings Dick Co, 1969 IN THE SUPREME COURT OF TIIE STATE OF UTAH Shop, 1361 Small Music Central, Ronald W Simpson, 965 K 900 S, sic; Contractor for musical A B Fixit Dean B Morgan, 438 234 Williams Ave, D- epairing Box S 6184, Radio State of Utah, In the Interest of: No. Sylvia Scott and Paris Scott, sic; 4th E, sic sic; ooOoo 11th E, sic; sharpening persons under 18 of years age. FILED March 23. 1970 MA: & TV 11833 R- L. M. Cummings, Clerk TUCKETT, Justice: Patsy Scott McIntosh, the mother of Sylvia and Paris Scott, filed an action for a divorce against her husband. Cicero Scott, in the District Court of Salt Lake County. Patsy McIntosh was awarded the care, custody and control of the two children here involved subject to the right of the father, Cicero Scott, to visit the children at reasonable times. In The Supreme Court Of The State Of Utah Linda Lucille Hathaway, Plaintiff and Respondent, v. Ronald J. Hathaway, Defendant and Appellant. December 2, 1964, a petition was filed in the Juvenile Court of Salt Lake County alleging that the children had become neglected. A hearing was had by the Court on that petition, and after the hearing an order and decree was entered by the Court depriving the mother, Patsy Scott McIntosh, of custody of the children and the to the father. Cicero transferring custody Scott. By a subsequent order the Juvenile Court of Salt Lake transferred the proceedings to the Juvenile Court of Weber County. County No appeal was taken from the decree depriving Mrs. McIntosh of custody and the propriety of that decree is not before us. On No. 11902 In the Matter of the Writ of Habeas Corpus for Ronnie Lynn Hathaway, Ronald J. Hathaway, Appellant, Linda Lucille Hathaway, Respondent. No. 11827 FILED March .20, 1970 L. M, Cummings, Clerk HENRIOD, Justice: Appeal from a default divorce decree entered in an action instituted by Mrs. H (Salt Lake County District Court, No. 180008), and from a judgment in a Habeas Corpus proceeding instituted by Mr. H (Salt Lake County District Court, No. 187429), both in favor of Mrs. H. The cases were con- solidated. The judgment in the Habeas Corpus proceeding is affirmed. That portion of the divorce de'eree awarding custody of the minor Ronnie Lynn to Mrs. H, and that part only, is vacated and remanded to the District Court to take evidence and determine which of the parties shall have custody of the minor child, including any conditions incident thereto and any award of support money for said child, if any, deemed advisable by the trial court. The parties were married on August 19, 1961. Ronnie Lynn was born September 6, 1964. On June 6, 1968, Mrs. H filed for divorce, seeking custody of the child who at that time was living with Mr. H in California. Seven months later on January 8, 1969, Mr. H filed a divorce action in California, also seeking custody of the child. Mrs. H was served while in California on January 20, 1969, and Mr. H was served in California in the Utah action on January 27, 1969. Mrs. H appeared in the California action personally and by a public defender, her counsel. Upon stipulation of the parties (questioned by Mrs. H) the California court on March 14, 1969, awarded custody of the child to Mr. H "pending a final determination of custody" in the action. Nonetheless, Mrs. H brought the child to Utah injune of that year, after pretending to take the child for a temporary visit. This, after her Utah counsel had withdrawn from the Utah case. Mr H, not to be outdone, followed her to Utah and filed the subject petition for writ of habeas corpus, based on the record of the California case, a copy of which he introduced in evidence. Hearing on the petition was set for 2:00 p. m. on June 20, 1969. Mrs. H, with new Utah counsel, appeared before the court ex parte, and without any notice to Mr. H, at 10:00 a.m. of the same day, and was awarded a default divorce from Mr. H. The court reserved the custody question until the 2:00 p. m. habeas corpus hearing, which had to do mostly with residency qualifications and procedural dates. At the end of this hear- ; On August 20, 1968, Patsy McIntosh filed a petition with the Juvenile Court of Weber County which alleged a change of circumstances on her part and requested the Court to restore the custody of the children, to her. Hearings were had on the petition on April 22. 1969. and on August 19. 1969, after which an order was made by the Court continuing the custody of the children with their father. The order was by its terms temporary in nature, the further disposition of the case to be made on the first day of September, 1970. From the adverse ruling of the Juvenile Court petitioner Patsy McIntosh has appealed. Our consideration of the matter before us leads us to the conclusion that only an issue of fact is presented to this Court for review. It is clear that the petitioner in the Juvenile Court, and appellant here, hid the burden of proving the allegations other petition for restoration of custody by a preponderance of the evidence. After review of the record we cannot say that the Juvenile Court abused its discretion by failing to find in favor of petitioner upon the evidence before it. Cicero Scott, the father of the children here involved, did not file a An amicus curiae did appear and by permission of the Court filed a brief and presented an oral argument. The Court '9 amicus urges the Court in these proceedings to two prior decisions of brief in this court. re-exam- the Court, namely, In Re Thornton, and Anderson v. Anderson. These cases dealt with certain aspects of overlapping jurisdiction between the district courts in divorce proceedings and proceedings before the juvenile courts in the interest of dependent, neglected and delinquent children. 3 These matters are not before us on this appeal and we decline to the cases here. The order of the Juvenile Court is affirmed. No costs awarded. WE CONCUR: ing, the court denied the petition, concluding that Mr. H, besides being abusive, was not a California resident at the time of the California proceedings, and that the court there had no jurisdiction. Custody of the child was awarded to Mrs. H in the divorce action. All this occurred before Mr. H and his counsel learned of the default divorce proceeding had earlier in the day at 10:00 a.m. E. R. Callister, Justice Justice A. H. Ellett, 1. Our empathy extends to any trial court's restraint in a case like this, hut we are of the opinion that under the circumstances here, it was error not to grant the motion to vacate the default decree so far as the custody aspect thereof is concerned. Jr., F. Henri Henriod, Justice Counsel for Mr. H promptly moved the court to vacate the default decree, which in turn promptly was denied. Until that time no evidence had been adduced of any substantial probative nature with respect to the child's welfare or the fitness of either or both of the parties to have the custody of the child, - who, as is the case too often, was but an innocent spectator in what appeared to be a cat and mouse vendetta waged by two irreconcilable combatants. Chief Justice J. Allan Crockett, 2. 3. Utah 2d 297, 422 P. 2d 199. Utah 2d 89. 416 P. 2d 308. In restate in the Interest of Graham, 18 18 The local forum, from facts gleanable from a rather unsatisfactory and the minor's presence in this State, presents a proper jurisdicrecord tional situs for a determination, after competent, substantial evidence is adduced, of what may be for the best interests of the minor, with an eye focused on the correlative rights and obligations of the litigant parents. 110 Utah 159. 170 IN THE SUPREME COURT OF THE STATE OF UTAH -- - 00O00 No. 11913 Edward Lee Crouch, Plaintiff and Appellant, WE CONCUR: FILED March 23, 1970 v. State of Utah, Defendant and Respondent. J. Allan Crockett, Chief Justice E. R. Callister, Jr., Justice P.2d 172. L. M. Cummings, Clerk ELLETT, Justice: February 16, 1963, Mr. Crouch, the appellant, was convicted in Utah of the crime of burglary in the second degree and thereafter was sentenced to the Utah State Prison. He appealed to the Supreme Court of Utah but subsequently and before hearing moved to dismiss the appeal, which motion was by this court granted. In due time he was released from the Utah On R. L. Tuckett, Justice A. H. Ellett, Justice SUPREME 1 1 COURT DECISIONS-(Continu- ed on Page '4) t |