Opinion
Sept. 16, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Valjean H. McCurdy, Arvada, for plaintiff-appellee.
Lyle E. Miller, Golden, for defendant-appellant.
VanCISE, Judge.
The mother, Sandra K. Trujillo (formerly Forester), appeals from a judgment changing the custody of three small children from her to the father, Ronald R. Forester. We reverse.
The parties were divorced in Colorado in November 1969. Custody of the children (born April 28, 1965, March 23, 1967, and September 10, 1969, respectively) was awarded to the mother. On the father's petition for change of custody, the court held a two-day hearing in June 1974.
At the conclusion of that hearing, the court made findings which, being supported by evidence, are binding on review. These were: That until recently there had been no problems concerning the custody and visitation of the children; that the children lived at their maternal grandparents' home just outside of Golden, Colorado; that these grandparents, along with the great-grandmother, had taken care of the children since their birth; that the great-grandmother took care of them before and after school, and that each evening the grandmother picked them up and took them back to her home; and that on the weekends that were designated for visitation purposes, the paternal grandparents took the children from the maternal grandparents' home to their house, where the father and his present wife would visit them.
The court further fund that: During this period, the mother left the children with the grandparents, went to Alaska for a month, and later traveled to California with the man whom she subsequently married; that at the time of the hearing, she and her present husband were living in the grandparents' home, as they had for a time prior to their marriage; that both were employed outside the home, and indicated their intention to buy a house in the Denver area. Additional findings were that the father wanted to take the children to his home in Grand Junction; that his present wife was agreeable to this; that they have no other children; and that, as stated by the court, 'from all indications it would be a very pleasant arrangement.'
The court referred to the reports from the probation department as indicating 'that both parents are good parents who could have custody of the children.' It further observed 'that there is no question that these children have really been lucky, that they are undoubtedly beautiful children, and so far in their lives have done real well and received a lot of love and affection from the grandparents and from (the great grandmother); but that isn't the way it should be.'
The court then ordered 'that the custody of these children shall stay with their mother.' In so ordering, it stated:
'In this case the court is going to continue the matter for six months. I am going to give the mother another chance to establish herself and indicate to the court her desire to raise these children by her own efforts . . .. If not, then we'll see what happens at that hearing.'
The mother's request for an additional probation department investigation of the home and school situation prior to the next hearing was denied.
At the December hearing, the only evidence presented was the testimony of the mother. She testified that before school started in the fall, she and her husband and the children had moved from her parents' home to a rented four-bedroom house in Arvada and were living there at the time of the hearing. Each child had a separate bedroom. Because both she and her husband were working, on school days she took the children to the same school in Golden they had previously been attending, so that the children could, as always before, go to their great-grandmother's home after school. Her home was a block from school, and the mother would pick them up there after work and bring them back to the Arvada home.
At the conclusion of this hearing, the court concluded that 'the mother here has not shown a desire to raise the children,' and ordered the custody of the children changed to the father. Execution of the order was stayed by the trial court, and subsequently by this court, pending the out-come of this appeal.
The issue presented is whether, under the circumstances shown, the court abused its discretion in changing the custody from the mother to the father. The resolution of that issue is governed by the 1958 divorce statute (C.R.S.1963, 46--1--5(4), and 1967 Perm.Supp., C.R.S.1963, 46--1--5(7)).
Here, after the two-day hearing in June, the court ordered the custody left with the mother despite the showing made by the father. Six months later, on the uncontroverted showing that living conditions for the children had been improved, and in the absence of any evidence that the mother was unfit or that the welfare of the children so required, the same court abruptly ordered the children removed from the mother and placed with the father. Under these circumstances, the order was an abuse of discretion and must be reversed. Pearson v. Pearson, 141 Colo. 336, 347 P.2d 779; Bird v. Bird, 132 Colo. 116, 285 P.2d 816. See Wiederspahn v. Wiederspahn, 146 Colo. 214, 361 P.2d 125; In re the Marriage of Moore, Colo.App., 531 P.2d 995; Christian v. Randall, 33 Colo.App. 129, 516 P.2d 132.
The judgment is reversed and the cause is remanded with directions to enter an order denying the motion for change of custody.
PIERCE and STERNBERG, JJ., concur.