Pusey v. Pusey

728 P.2d 117 (Utah 1986)

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Nature of the Case

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Facts

The parties were married twelve years and had two sons, aged twelve and nine at the time of trial in 1984. H and his mother owned a corporation, Fun Fair, Inc., at the time H married W. In 1975, the parties purchased a home in Bountiful with joint funds. In 1982, the parties formed Load Alert, Inc., which purchased real property known as the Western General Dairy facility. Both parties were officers of the corporation. At trial, defendant claimed that Load Alert obtained a loan of $69,000 from Fun Fair, Inc., to acquire or remodel the Western General Dairy facility. Additional small debts of Load Alert amounted to $4,000. The trial court found that H had failed to carry his burden of proving that the purported $69,000 loan of Load Alert did in fact exist. It established the net worth of Load Alert at $123,587, after deducting debts of $4,000, and the equity in the Bountiful home as $43,000. Of a total marital estate of $166,587, W was awarded $83,293.50, $43,000 awarded to her as the equity in the home and $40,293.50 assessed as a money judgment against defendant and liened against the dairy. Fun Fair, Inc., was awarded to H. The trial court conversed with the parties' two minor children in chambers and learned that the older boy expressed a marked preference for living with his father, whereas the younger boy indicated equal attachment to both parents. In spite of recommendations by a social worker that the parties be awarded joint custody the trial court awarded custody of the older boy to H and custody of the younger to W, with reasonable visitation rights in both parties. H appealed the trial court's award of one-half of the Load Alert property to plaintiff as inherently inconsistent with the court's finding that the assets of Fun Fair, Inc., were defendant's premarital assets not subject to division with plaintiff. He contends that the award is inconsistent with decisions from this Court which have uniformly returned premarital assets to the owner spouse and, also, that the court should have returned to him the $69,000 loan obtained from Fun Fair before dividing the marital estate. W cross-appeals from that portion of the divorce decree awarding custody of the older son of the marriage to H and requests that both children be awarded to her.