Opinion
Rehearing Denied Oct. 23, 1975.
Page 1287
Bernice M. Buchler, C. Charles Buchler, Englewood, for petitioner-appellee.
William E. Tucker, Denver, for respondent-appellant.
STERNBERG, Judge.
This is an appeal by the respondent-husband from an order of the district court changing custody of one of two sons of the parties from him to the petitioner-wife, clarifying an award of custody of their daughter to the wife, and increasing the amount of child support. Since the trial court applied the appropriate statutes correctly and did not abuse its discretion, we affirm the orders entered.
After an eighteen-year marriage, during which four children were born, a decree of dissolution was entered on December 6, 1973. Prior to that time, the parties had signed a separation agreement which was incorporated in the decree of dissolution.
Insofar as pertinent here, that agreement provided that the husband would have custody of two sons, Kenneth and Carl, while a daughter, Audrey, was placed 'in the care of the wife, and . . . in the custody of the husband.' Fifty dollars per month child support was to be paid by the husband to the wife for support of Audrey. The wife undertook to pay the minimal monthly costs for maintenance of a fourth child who was in a state institution.
Five months after the entry of the decree, the wife moved for a change of custody of Kenneth, and an increase in child support for Audrey. The filing of this motion was immediately followed by the filing of a motion by the husband to clarify the previous order. The court ordered a custody investigation to be conducted by the court's marriage counselor and, following a hearing on August 8, 1974, in accordance with the recommendation of the marriage counselor and based upon testimony presented to it, awarded custody of both Audrey and Kenneth to the wife. In regard to the contradictory language in the settlement agreement about care and custody of Audrey, the court concluded that 'custody' of Audrey had been placed in the husband because of an erroneous belief by the parties that it was necessary for him to have such 'custody' in order to make her eligible for various military benefits.
On appeal, the husband's principal contentions are that the court could not order a change of custody within two years of the original custody award, that none of the statutory tests permitting a change in custody were met, and that in any event, the court abused its discretion in its award of child support.
The husband would have us interpret s 14--10--131(1), C.R.S.1973, to prevent any change of custody within two years of entry of a decree awarding such custody. Merely to read that statute is to refute this argument. It says that '(i)f a motion for modification has been filed . . . no subsequent motion may be filed within two years . . .'; there is no time limit proscribing the filing of the First motion for modification.
In respect to the husband's second contention, s 14--10--131(2)(c), C.R.S.1973, empowers a court to change custody if it concludes that '(t)he child's present envoronment endangers his physical health or significantly impairs his emotional development and the harm likely to be caused by a change of envoronment is outweighed by the advantage of a change to the child.' There was ample evidence before the court from which it could infer that this statutory test was met. The trial court's discretion in matters relating to custody is broad, and every presumption in favor of validity of the court's decision will be exercised. Bernick v. Bernick, 31 Colo.App. 485, 505 P.2d 14.
Finally, the husband points out that he was on active duty in the Air Force at the time the decree of dissolution was entered, but at the time of the hearing on the motion for increase, he was retired and receiving under 50% Of his active duty pay; hence, he contends the court abused its discretion in ordering increased child support. We disagree. The record indicates the husband to be an able-bodied man who has recently remarried, and intends to embark on a new career of some unspecified nature. In such event, he would have his military pension of nearly $500 per month, plus what he was capable of earning. Under these circumstances, it was not an abuse of discretion for the trial court to increase the husband's obligation to pay support for his daughter from $50 to $75 per month. See Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006.
We have considered the other contentions of error and find them to be without merit.
Judgment affirmed.
PIERCE and VanCISE, JJ., concur.