## Facts

- Kathleen S. Pusey and Robert O. Pusey were married for twelve years and had two sons, ages twelve and nine at the 1984 trial.
- Robert and his mother owned Fun Fair, Inc. before the marriage.
- During the marriage, the parties bought a home using joint funds and formed Load Alert, Inc.; both spouses served as corporate officers.
- Load Alert acquired the Western General Dairy facility; Robert asserted Load Alert owed Fun Fair a $69,000 loan plus about $4,000 in other debts.
- The trial court found Robert failed to prove the $69,000 loan existed, deducted only the $4,000 debt, valued Load Alert’s net worth at $123,587, and valued home equity at $43,000.
- The court treated the marital estate as $166,587 and awarded Kathleen $83,293.50 (home equity plus a money judgment secured by a lien), while awarding Fun Fair to Robert.
- The trial judge interviewed the children in chambers: the older child strongly preferred living with his father; the younger indicated equal attachment to both parents.
- Despite recommendations favoring joint custody and testimony that Kathleen was the better custodial parent, the trial court awarded custody of the older son to Robert and the younger son to Kathleen, with visitation for both parents.

## Issues

1. Whether the trial court abused its discretion in valuing and dividing marital property by declining to recognize the claimed $69,000 corporate loan and by awarding Kathleen one-half of Load Alert’s value.
2. Whether the trial court abused its discretion by ordering Robert to pay $3,000 toward Kathleen’s attorney fees.
3. Whether the custody award violated constitutional and statutory standards by rejecting any maternal preference and awarding custody of the older child to the father.

## Decision

- Affirmed the property division.
- Affirmed the refusal to treat the asserted $69,000 obligation as a proven debt of Load Alert.
- Affirmed the $3,000 attorney-fee award to Kathleen.
- Affirmed the split custody award.
- Held that custody determinations must be made under a gender-neutral best-interests standard; reliance on parental gender as a determining factor is barred by the Utah Constitution and the Fourteenth Amendment.

## Legal Principles

- Trial courts have broad discretion in equitable distribution of marital property; appellate review is limited to abuse of discretion.
- A party asserting an offsetting debt that materially affects valuation bears the burden of proving the debt’s existence; unproven obligations need not be credited in valuation.
- Attorney-fee awards in divorce are discretionary and may be based on the requesting spouse’s financial circumstances and the overall equities.
- Child custody must be decided on a gender-neutral best-interests-of-the-child analysis; gender-based presumptions, including the tender-years doctrine, cannot be determinative.
- A child’s stated preference and the practical stability of each proposed custodial arrangement are relevant best-interests considerations, and trial courts receive deference in weighing custody evidence.

## Conclusion

The court affirmed the divorce decree, concluding that the trial court reasonably valued and divided the marital estate after rejecting an unproven corporate loan claim, properly awarded partial attorney fees, and correctly determined custody under a constitutionally required gender-neutral best-interests standard rather than any maternal preference.


Pusey v. Pusey, 728 P.2d 117 (Utah 1986)