Pusey v. Pusey - 728 P.2d 117 (Utah Sup.Ct. 1986)

Rule:

The choice in competing child custody claims should be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent.

Facts:

The parties, Kathleen S. Pusey, plaintiff and Robert O. Pusey, defendant was married and had two sons at the time of trial. Defendant husband and his mother owned a corporation, Fun Fair, Inc., at the time defendant married plaintiff. The parties formed Load Alert, Inc., which purchased real property, both parties were officers of the corporation. At trial, defendant claimed that Load Alert obtained a loan from Fun Fair, Inc., to acquire or remodel the real property. The trial court found that defendant had failed to carry his burden of proving that the purported loan of Load Alert did in fact exist. Defendant husband appealed the order of a trial court, which in a decree of divorce awarded plaintiff wife half of the assets of the corporation the parties formed during their marriage and partial attorney fees. The wife cross-appealed that portion of the decree that awarded custody of the oldest son to the husband.

Issue:

Did the trial court err in awarding the custody of eldest son to defendant husband?

Answer:

No.

Conclusion:

The court upheld the divorce decree of the trial court, which awarded split custody of the minor children, half of the corporate assets to the plaintiff wife, and ordered the defendant husband to pay a portion of the wife's attorney fees. The court affirmed and found that the husband failed to establish the existence of the loan, and, therefore, the property award was without error. The court also found that because the plaintiff wife's testimony alone was sufficient to establish her need, the partial attorney fees award was proper. Moreover, the court determined that its earlier caselaw, which demonstrated a maternal preference in custody matters, was invalid, and overturned those precedents in favor of function related factors. The trial court correctly applied the factors, and, therefore, the split custody award, while not favored, was not an abuse of discretion.