Opinion
Rehearing Denied Nov. 26, 1974.
Page 640
No appearance by plaintiff-appellee.
John Perrott, Berthoud, for defendant-appellant.
RULAND, Judge.
Felix L. Gonzales (father) appeals from an order of the district court confirming previous orders relative to custody of two minor children. We affirm.
The parties were divorced April 21, 1971. At that time the court divided custody of the seven minor children between the parties. Custody of Felix, Doloras, and Danial was awarded to the father. Ruth, Edward, Ernest, and Leo remained in the custody of the mother. Thereafter each party filed opposing motions requesting the court to modify its original custody order, and on February 24, 1972, the court determined there had been a change of circumstance in the case of only one child, Ruth, and transferred custody from the mother to the father.
In a juvenile proceeding on June 20, 1972, the child Edward was found to be a 'child in need of supervision' and the care and custody of that child was placed with the Larimer County Department of Public Welfare. Prompted by this situation, on February 7, 1973, the father again moved for transfer of the custody of Edward, Ernest, and Leo to him, alleging that they were subject to immoral environmental conditions which would permanently and adversely affect their character.
The mother responded by motion requesting that the court transfer custody of Doloras to her and requesting that support be awarded for that child. In support of her motion, the mother alleged that the father had not been providing proper care and control of the children, that they had been allowed to roam the streets, and that despite the prior custody order, Doloras had been living with the mother for six months. Additionally, the mother requested that her attorney's fees and court costs be assessed to the father.
After hearing on the motions, the trial court determined that the issues as to custody of Edward were moot, his custody having been determined by the juvenile court. The court also found that there had been no showing of change of circumstance as to Ernest and Leo, but that there had been a change of circumstance as to Doloras and ordered that her custody be transferred to the mother. Based upon the father's financial situation, the mother was allowed no additional support; however, the father was assessed the sum of $150 for her attorney's fees.
In this appeal, the father contends the court erred in not awarding him custody of Ernest and Leo and that the court abused its discretion in awarding attorney's fees to the mother. In reviewing an order affecting the custody of a child, the appellate court will make every reasonable presumption in favor of the actions of the trial court and may interfere only in cases where there is a clear abuse of discretion. Anderson v. Anderson, 124 Colo. 74, 234 P.2d 903; Searle v. Searle, 115 Colo. 266, 172 P.2d 837. The record before us reveals no abuse of discretion. The father's position is that the mother was, and is, not capable or interested enough in the welfare of her minor children to have their care. As evidence of that position, the father presented testimony showing that the mother allowed a daughter, age 23 to have overnight guests of the opposite sex when Ernest and Leo were present. It is clear that the court considered this evidence, determined that this activity had ceased, and cautioned the mother to insure that it did not reoccur.
Defendant also points to the fact that the child Edward was declared a 'child in need of supervision' while in the custody of his mother, and asserts that such adjudication not only demonstrates the mother's inability to supervise that child but also illustrates the unhealthful atmosphere in which the two youngest sons, Ernest and Leo are being reared. However, the record reveals that the same judge heard the original divorce proceedings between the parties, the subsequent motions regarding custody, and, sitting as a juvenile court, determined the status of Edward as a 'child in need of supervision.' Hence, this trial court was well versed in the continuing circumstances of the Gonzales family, and we find no error.
Relative to the award of attorney's fees, the father makes no allegation that the sum awarded is unreasonable, but only alleges that in view of the mother's conduct, the award is improper and that the court's action penalizes the father for attempting to improve the welfare of his children. However, we note that the mother is a welfare recipient and has by the order in question been awarded custody of another child without being granted additional support. Under the circumstances, we find no abuse of discretion in the court's award. See Laws v. Laws, 164 Colo. 80, 432 P.2d 632.
Order affirmed.
VanCISE and STERNBERG, JJ., concur.