Madsen v. Madsen

HENRIOD, Justice.

Appeal from those portions of a divorce decree which award property in lieu of alimony and the right of visitation with the children. Affirmed in part, reversed in part and remanded, with instructions. No costs awarded.

The parties married on July 22, 1949, and had 2 children during the 2t/2 years they lived together. On January 5, 1952, plaintiff filed for divorce. A third child was born to the parties shortly thereafter. The case dragged on through a number of hearings until December 1953, nearly 2 years later, when a decree was entered awarding plaintiff a divorce, $25 per month support money for each child, custody of the children, subject to a right of visitation 3 times each month for 12 hours, and once a month for 2 days, with those children who had attained the age of 36 months, defendant being allowed to take them from plaintiff’s presence during such periods, and a one-half interest in a *425parcel of property owned by defendant. During the protracted litigation, the parties and their counsel had stipulated that it would he agreeable if the court awarded $1,000 cash in lieu of alimony, payable in 6 months, and $30 per month as support money for each child. Such stipulation apparently lulled plaintiff into a false sense of security, sufficient to impel her to not proffer any evidence as to her ability to and need for support of the children. In so assuming she erred, since the trial court, in divorce matters, where the state is an interested party, need not abide, necessarily, with the terms of the litigants’ stipulations,1 although such stipulations should be respected and great weight given thereto. Plaintiff’s only complaint in this respect, would be, not that the court was duty bound and erroneously refused to carry out the terms agreed upon, but that it abused its discretion by entering an inequitable decree,2 a matter we must determine on review. Unless there is a clear abuse of discretion, we cannot disturb the trial court on such matters, and we believe that the $25 per month awarded instead of the stipulated $30, and the one-half interest in about 50 acres of land instead of the agreed $1,000 cash, under the facts of this case, whose voluminous record cannot be detailed here, but where, however, there is evidence to show considerable self-sufficiency on the part of plaintiff, and a physical ailment on the part of defendant, which was at least a threat to his earning, capacity, was not such an abuse of discre-. tion contemplated by the authorities as to, warrant reversal.

As to the award of visiting rights to the defendant, we are faced with a decidedly different problem — a shifting around which might affect the physical, moral and social welfare of 3 tots of tender years, even more than a defendant’s failure to pay support money. There is no evidence in the record that shows any lack of affection by either spouse and none to show that the defendant would harm, or that the children’s welfare would be impaired, by the carrying out of the quite unusual order for visitation entered here. On the other hand there is no evidence to show how these children would be housed when their father came and took them away, by whom they would be clothed, fed and otherwise taken care of, or otherwise how they might be treated. In cases where little children’s welfare hangs in the balance, we cannot gamble it on an absence of evidence or on any presumption that tender care will be given by the natural parent. There should he clear, affirmative and guaranteeing evidence that the welfare of children such as these would not be jeopardized by execution of the order. No such evidence appears in this record, and *426we are compelled to remand the case with instructions to proceed in accordance with the views herein expressed as to rights of visitation.

McDonough, c. j., and crockett and WADE, JJ., concur.

. Barraclough v. Barraclough, 100 Utah 196, 111 P.2d 792; Callister v. Callister, 1 Utah 2d 34, 261 P.2d 944.

. Allen v. Allen, 109 Utah 99, 165 P.2d 872, and cases cited therein; Tremayne v. Tremayne, 116 Utah 483, 211 P.2d 452.