Opinion
Rehearing Denied Jan. 23, 1973.
Johnson, Anderson & Dressel, Samuel L. Anderson, Fort Collins, for plaintiff-appellant.
No appearance for defendant-appellee.
SILVERSTEIN, Chief Judge.
Mr. Aman, plaintiff in the trial court, appeals from a decree which modified the original divorce decree as to custody of the minor child of the parties and child support payments. The decree appealed from is affirmed.
Mr. Aman obtained a divorce from Barbra Aman, by default, in May 1970. He was awarded custody of their four-year-old daughter, subject to reasonable visitation by the mother at the father's home. In April 1972, Barbra Aman entered her first appearance in the action by filing a motion for modification of the decree. In her motion she asked for visitation rights outside Mr. Aman's home and that she be given custody of the child, together with child support, during school summer vacation. A hearing was held on the motion at which both parties testified.
Barbra Aman lives in South Dakota, where she has lived since shortly before the divorce. She testified that prior to, and for some time following, the divorce, she was emotionally upset and consulted with doctors about her problems; that because of her then condition, she did not seek custody of her child; that she is now stable and in a position to have the custody during the summer months. None of this testimony was disputed by Mr. Aman.
The court awarded the mother custody of the child for one month during the summer of 1972 and for a similar period in future years, subject to further orders. The mother was authorized to take the child to her home in South Dakota at her own expense and the father was ordered to pay fifty dollars for child support for the one-month period.
Mr. Aman asserts that there was not sufficient evidence of change of circumstances to support the modification of the previous order. He also contends that the award of child support was improper because there was no evidence as to his ability to pay.
The record discloses a change in circumstances in the mother's situation which change would justify the modification. Her evidence as to the change in her mental condition was not refuted, nor was her testimony on her improved living accommodations and facilities for the care of the child. The main concern in custody matters is the welfare of the child. The court found that this child's welfare would best be served by being with the mother for one month during the summer school vacation. The evidence supports this finding. There was no abuse of discretion in this regard which would warrant our interference with this order. Anderson v. Anderson, 124 Colo. 74, 234 P.2d 903.
Mr. Aman asserts that there was no evidence of his ability to pay the fifty dollars for the one month. He does not contend that he is unable to pay this sum. Although the record on this point is limited, it does appear that he was employed by Kodak, and that he was fully capable of supporting and maintaining the child. The mother's need for the support money was proven. There is sufficient evidence in the record to establish that there was no abuse of discretion in the child support award, and it will not be overturned. Pippinger v. Pippinger, 145 Colo. 140, 357 P.2d 911.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.