Opinion
No. 74-050
Decided September 10, 1974.
Two years after entry of a divorce decree, defendant petitioned for a change of child custody pursuant to the terms of the Uniform Dissolution of Marriage Act. From a judgment denying that petition, defendant appealed.
Affirmed
1. DIVORCE — Child Custody — Dissolution of Marriage Act — Not Applicable — — Decree Entered — Prior — Effective Date — Petition — Properly Dismissed. The Uniform Dissolution of Marriage Act does not apply to proceedings between parents to change custody of children when the original order relative to custody was entered pursuant to Colorado statutes in effect prior to the Uniform Act; thus, where decree of divorce was entered prior to the effective date of the Uniform Act and in conjunction with that decree custody of the minor children of the parties was granted to plaintiff, petition for change of custody subsequently filed by defendant pursuant to the Uniform Act was properly dismissed.
Appeal from the District Court of Arapahoe County, Honorable M. O. Shivers, Jr., Judge.
Clarke Waggener, P.C., William P. Waggener, Henry V. S. Hall, for plaintiff-appellee.
J. F. Brauer, for defendant-appellant.
Defendant, Gary Spurling, appeals from a judgment denying his petition for change of child custody. We affirm.
The parties to this action were divorced by a decree of the Arapahoe County District Court entered February 27, 1970. In conjunction with the divorce, plaintiff, Judith Spurling, was granted custody of the two minor children by a court approved stipulation between the parties.
On September 15, 1972, defendant filed a motion in the Arapahoe County District Court for change of custody and requested a prehearing investigation pursuant to the provisions of the "Uniform Dissolution of Marriage Act," 1971 Perm. Supp., C.R.S. 1963, 46-1-27 and 46-1-31. The court granted the request for an investigation. Thereafter, during a hearing on the custody issue, defendant requested leave to withdraw his motion, which request defendant concedes here was based upon an adverse investigation report. The parties stipulated in open court to increased visitation privileges for defendant. The court granted leave to withdraw the motion, approved the stipulation, and directed counsel for defendant to prepare a written stipulation. Defendant refused to sign the written stipulation, and the court thereupon entered an order on May 12, 1973, containing the terms agree upon in open court. No appeal was taken from that order.
On June 21, 1973, defendant initiated another custody proceeding in a separate action in the Jefferson County District Court pursuant to 1971 Perm. Supp., C.R.S. 1963, 46-1-23. Plaintiff responded with a motion to change venue to the Arapahoe County District Court which was granted. The Arapahoe County District Court consolidated the petition with the prior divorce action in that court and dismissed the petition for custody without a hearing.
Defendant here contends that it was error for the Arapahoe County District Court to dismiss his petition without a hearing because the Uniform Dissolution of Marriage Act, 1971 Perm. Supp., C.R.S. 1963, 46-1-23, permits defendant to file a petition for custody in Jefferson County where the children now reside. We disagree with defendant's contention.
[1] While the present case was pending on appeal, this court announced its decision in Dockum v. Dockum, 34 Colo. App. 98, 522 P.2d 744. In that case, we held that the Uniform Dissolution of Marriage Act does not apply to proceedings between parents to change custody of children when the original order relative to custody was entered pursuant to Colorado statutes in effect prior to the Uniform Act. Moreover, since the Arapahoe County District Court was the court which had original custody jurisdiction, the petition for custody filed in Jefferson County was properly transferred under prior law to Arapahoe County. See Wood v. District Court, 181 Colo. 95, 508 P.2d 134.
The petition having been erroneously filed pursuant to the Uniform Act, the dismissal was proper. The judgment is affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE KELLY concur.