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Show MONDAY, JUNE 15, 1970 2333- THE DAILY RECORD Release of Mortgages - Warranty Deeds Utah Livestock Prod to Veigh 604 233 etux Cummings b0.5 615 Life Ins to John New York - Kenneth bOH - Hattie Todd Eager, dba Eager toRonald Reeltovs Griffith etux C C - Prud fed Savings to Robert Ensign Steorts etux 631 801 - Ditto 632 Diel finance Steorts etux 633 Co to Robert 809 E - National JACL Doi etux 661 815 Bid Knudeen 822 825 Ln - 328 Thomas metropolitan Life to Joseph Reddinq etux 773 Cooperative Doyle etux Sec to Sherman Dial finance to frank 77F 8ol Carl R Oiiran - - 8? 2 - L 373 - Bradley etux Golden L John 3 Wohlfond etux to Roland Grow etux Johr David - L Ferr. 3 Johnson to Johr-aoi- etux U - Audrey f Call?- P Headley - 31' Lick ei Leo Theos 1. 1 L tux to 1st Sec derntem'. to Vandersteeii etal Vns ' 3k .r-pa- ret ' Iionher tux to Calvin tux '.illi.am L. ?00 Jen si L -- '.ihite tux tux to P.lo'.ar'1 - Lortor. Investment to Schultz eta k. . .ill - nil see Lenox - Sanders etux tc !5u"isid atux ' -- i Price etux tn Wallace Jhoroer etux A yO3 ickelser. etux - iCm.rmth Z to i.rs ic: . licelhardt ;I0o 39 R .V 833 Venable Investment to J Clair Payzant etux etux to Theos etal rrustees to - Rchi arris Verv. 3riks&r etal. to Mck - arsaret 835 - Alvir. !:R5 John .etcalf etux to Health Industries Ricr.ard L Theos - - Jerrett etux to Farbourr. etux 875 329 M rjorterse'. etux to Jejre A Luo J Mliille etux to iu3 J etux etux Lee A W j P7V ouraret etux Ruc.;miller etux to G Jor. son Boise Cascade to Sheridan 3 Smith iinn d i.atthews John 'J H 3 r.orton etux to David ' Richard G Ino to forma J Jones Norton Investment to Bertel dloomquist etux etux to Robert etux Denman Ror? H Grant Sangartar etux to Philip Palmar etux Alan S 838 Dial finat ce to Detain '.etcalf etux 7t ftn 'orris Ray 3 Hagen Starr etux etux to Triangle Storm In cert 1 etux to Henry Dan - A lo i Davis etux 743 - to Preston metropolitan Life to 739 B - etux etux Capitol Thrift L Norton etux 672 7 - Deeeret fed Savings to Dennis 670 8S A Royal Const - to Loren Bk etux foowery ?.5b Alder to Elizabeth Parkinson John K Credit to Nisao Uueena County Sav H etal to Reinheldt ird-.ha- u r Sandbert' etux etal to '.11 ace 3 Baoon Pack - Arlene to Jordiir. 871 811 Homes Inc 659 twood etux Whitaker etux National mortgage to Uhran 636 54 '.V 3uilders Supply A Nelson etux 621 THREE PAGE Hiser L S Stead.-w- . In The Supreme Court of The State of Utah Carolyn J. Wiese, Plaintiff and Appellant, No. 11823 FILED May 8, 1970 v. Robert D. Wiese, Defendant and Respondent. L. M. Cummings, Clerk ELLETT, Justice; In March of 1967 the plaintiff herein obtained a divorce from the defendant based upon grounds of mental cruelty. At that time they had three children whose names and ages were as follows: Kurt, 10 years; Janice, years; and Michael, 5 years. The parties entered into a stipulation which among other things provided for a split custody arrangement whereby Janice would be with her mother, and the two boys with their father. The triad court accepted the stipulation as being fair and reasonable, but he wisely provided in the decree that the court would "reserve jurisdiction regarding custody of the minor children, subject to further hearing in the event either party make a showing that the present custody arrangements are not in the best interest of said children." plaintiff acted wisely and in the best interest of the boys in havirg hern examined. The fact that she did not first get the consent of the defendart is of no great moment. The evidence does not support the finding that the plaintiff had attempted to undermine the relationship of the two boys with their father. It seems to us that the plaintiff has at all times appeared to look out for the welfare of the children. It is the defendant himself who has attempted to poison the minds of the boys against their mother. The evidence would require a finding thar he had told Kurt that his mother was mentally unbalanced, an immoral woman who took dope and who took him (Kurt) to see Dr. Liebroder in order to prove him crazy so she could get custody of Michael. 8-- 12 The plaintiff filejl a petition to amend the original decree and to award to her the custody of the two boys. The trial court denied the petition, and she has appealed to this court from that ruling. I This is an equitable matter, and upon appeal the binding effect of the findmade by the trial court differs from that in a law matter. We may here ings review questions of both law and fact; and after making due allowance for the advantaged position of the trial judge to observe the demeanor of witnesses upon the stand, we may be persuaded that a finding is against the preponderance of the evidence to such an extent that we would be justified in disapproving it or even in making a finding of our own. Martinett v. Martinett, 8 Utah 2d 202, 331 P. 2d 821 (1958); Wilson v. Wilson, 5 Utah 2d 79, 296 P.2d 977 (1956); MacDonald v. MacDonald, 120 Utah 573, 236 P. 2d 1066 (1951); Jensen v. Howell, 75 Utah 64, 282 P. 1034 (1929). At the time of the hearing on the petition the trial court made findings which in substance insofar as material are as follows: (a) The plaintiff had unreasonably harassed defendant regarding visitation and custody of the minor boys. (b) The plaintiff and her present husband took the two boys to a clinical psychologist without the knowledge or consent of the defendant. (c) The plaintiff had attempted to undermine the relationship of the two boys with their father. (d) The older boy had elected to remain in the custody of the defendant. (e) The best interest of the boyr would lie in their remaining with their father. The last paragraph is a conclusion and must be based upon the other 'findof the ings. The firs) finding numbered (a) above is immaterial to the welfare defendant the noted his be that changed phone to children. In passing it should and sons talk to them. It an unlisted number so the plaintiff could not call her to talk effort some make would with her sons. she that to is only natural expect The plaintiff took her boys to Dr. Liebroder, a clinical psychologist, when it appeared to her that they might be in need of assistance. Later the defendant had the boys examined by a psychiatrist who sent them to Dr. Swaner, a clinical psychologist, for an examination and report. From the report and testimony of the psychologists, as hereafter referred to, it appears that the While it is tvue that Kurt told the judge he preferred to remain with the defendant, it is also true that Michael said he wanted to live with his mother. Neither child can bind he court by indicating a preference. The desire of the child is merely one of the factors to be considered in making a determination of the custody which will be for his best interest. Let us look at the evidence which came from the two clinical psychologists, one of which (Dr. Liebroder) was hired by the plaintiff, and the other (Dr. Swaner) by the defendant. Their findings did not conflict. Dr. Liebroder found that Michael indicated a feeling of depression, emotional turmoil, conflict, anxiety, and unsatisfied nurturant. needs, i. e. , needs which are usually satisfied by a mother. The doctor further testified that where there is a significant gap in a person's development, a load of needs which are unfulfilled, they do not disappear but remain and become expressed in some rather unwholesome ways; that a child deprived of certain kinds of important or key experiences may spend the rest of his life trying to seek those out. He further said that the absence of a maternal figure can result in considerable damage later on, and that the effects if prolonged cannot be reversed by any known treatment. Dr. Swaner testified that Michael needed to associate and be identified with a significant mother figure. Dr. Liebroder testified that during the examination Kurt expressed considerable concern about the welfare of his little brother, Michael. He further testified that Kurt felt the examination was instituted by his mother to prove that he was crazy, all as a part of her attempt to gain control of Michael. The doctor further said that Kurt revealed that he had been plagued by questions ccnce.TrJ.rg h:s mother's mental and moral conduct; that he indicated that he had been told that his mother had been maintaining an illicit relationship with a man in California, and that she had been taking drugs. He said that Kurt then said: I found out that she isn't having problems like I thought at I thought that she had been taking drugs. I have ... first. That is what has been separating me from my been told lies. mother. Regarding living with the plaintiff, he told the doctor: I'd have a mother to come home to. I've been missing that since the divorce. He said Kurt had difficulty in making friends and indicated that the best chances of helping him were to make the father and stepmother more aware of, and attentive to, the problems. (Both the father and stepmother worked and left home early in the morning. ) Dr. Swaner found Kurt to be a very intelligent lad, but with emotional disturbances reflecting insecurity, and he recommended psychiatric treatment. He testified that it is important for a boy of Kurt's age to ive a mother figure ln relationship to those whom he is around. on Page SUPREME COURT DECISION- S- ( Continued |