Opinion
Sept. 29, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 349
John C. Lafferty, Grand Junction, for plaintiff in error.
Terrance Lee Farina, Grand Junction, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This case involves the custody of the minor child of the parties. The mother brought suit for divorce and asked for custody of the child, a son age three. While the case was pending, the court placed the child in the temporary custody of its paternal grandmother. A decree of divorce was granted to the mother on April 30, 1968, and custody of the child was awarded to the grandmother. Thereafter, on October 3, 1968, upon the mother's petition, the court changed the custody from the paternal grandmother to the mother. The father, by writ of error, seeks reversal of the order changing custody.
Custody was originally awarded to the grandmother because the mother was employed and it would be necessary for the mother to leave the child with a babysitter during the day. The court felt tat the best interest of the child would be served by placing the child in the care of the grandmother while the mother was working. Although this arrangement was continued when the divorce decree was entered, the court referred to the order as a 'stop gap measure' which would not be continued longer than necessary. At the time of the hearing on the motion for change of custody, the mother had remarried and was no longer employed. She then had a suitable home and was able to care properly for the child.
The general rule in cases involving the custody of minor children is that 'the interest and welfare of the child is the primary and controlling question'. Averch v. Averch, 104 Colo. 365, 90 P.2d 962. Accord, Smith v. Smith, Colo., 474 P.2d 619, September 21, 1970. In the present case the court found that 'the best interest of the child lies in the mother having custody'. This finding is supported by the evidence and the court's order based on this finding is affirmed.
The father, relying upon Coulter v. Coulter, 141 Colo. 237, 347 P.2d 492, contends that the fact that the mother had remarried and was no longer employed was not a change in circumstances authorizing the change of custody. In Coulter, supra, the court's denial of a mother's motion for change in custody from the grandmother to her was upheld. The court found no abuse of discretion by the trial court and said that in controversies of this nature the reviewing court must necessarily rely on the judgment and discretion of the trial court, and that, absent circumstances clearly disclosing an abuse of discretion, the trial court's order should be upheld. In the present case, the trial court did not abuse its discretion in awarding custody to the mother, and the rule in Coulter forecloses appellate interference.
While this case was pending, the court ordered the Public Welfare Department to conduct a custody investigation pursuant to 1967 Perm.Supp., C.R.S.1963, 46--1--5(7). The father did not object to the entry of this order and filed no objection or exception to the report. The father's objection to the court's use of the report was made for the first time in the motion for a new trial.
In Anderson v. Anderson, Colo., 445 P.2d 397, our Supreme Court held that reports of investigations pursuant to 1967 Perm.Supp., C.R.S.1963, 46--1--5(7) are hearsay documents and if the conclusions reached therein are objected to it is necessary that competent evidence, upon which the conclusions were based, be presented in open court. The report in the present case consists principally of background information concerning the parties and contains no conclusions concerning the disposition of the custody of the child.
The court held four separate hearings concerning custody of this child and all of its orders were based upon the sworn testimony of the parties and the other witnesses and not upon hearsay evidence. The father's claims of error with respect to the court's use of the report of the investigation by the Welfare Department are unfounded.
The judgment is affirmed.
ENOCH and PIERCE, JJ., concur.