Opinion
Oct. 23, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1267
Pacheco & Auer, P.C., Norman R. Pacheco, Denver, for petitioner-appellee.
Belfor & Lapin, P.C., Bailey Belfor, Lakewood, for co-petitioner-appellant.
PIERCE, Judge.
Linda Ortiz (wife) appeals from an order denying her permission to remove from Colorado the children of a dissolved marriage, and from the refusal of the trial court to order her former husband to pay her attorney's fees in conjunction with the dissolution and subsequent proceedings. We reverse and remand.
I.
It is first contended that the trial court's determination that the children should not be removed to California must be overturned because the findings on that issue were based solely on the factor of the deprivation of visitation rights to be suffered by husband. We agree with this contention.
The portion of the trial court's order on this issue states as follows:
'(T)he Court having then received testimony of Linda only, FINDS that her grounds for wishing to leave Colorado as follows:
'1. Her present employment will end between one and two months from this date because of her employer's going out of business.
'2. She is unable to find other employment here at a rate of compensation near her present $500.00 per month salary.
'3. She wishes to remove to Sacramento, California area where she has two jobs offered, either being comparable to her present rate of compensation.
'4. That Sacramento, California area is the location of her parents' home.
'Deeming itself sufficiently advised, the Court FINDS that the primary reason for Linda's wishing to move is to live near her parents which is good as far as she is concerned, but which will deprive Gerald of his visitation rights. Therefore, permission to leave the State of Colorado is denied.'
While we realize that in determining whether to permit the removal of a child from the jurisdiction, the denial of the opportunity for the children to know one of their parents is a factor to be considered, Searle v. Searle, 115 Colo. 266, 172 P.2d 837, nevertheless the basic criterion to be applied is whether removal is in the best interests of the child involved. Nelson v. Card, 162 Colo. 274, 425 P.2d 276. Here, neither the record nor the orders issued by the court give any indication that the trial court based its decision on a consideration of the best interests of the children.
II.
We also agree that the trial court erred in refusing to admit testimony pertaining to the wife's financial status as it related to her plea for attorney's fees.
Although the allowance or denial of attorney's fees is normally within the discretion of the trial court, Stovall v. Crosby, 171 Colo. 70, 464 P.2d 868, Tower v. Tower,
Krall v. Krall,Here, although the trial court had before it some evidence pertaining to this issue such as testimony as to the value of the legal services supplied, See Hoffman v. Hoffman, 167 Colo. 432, 447 P.2d 1005, the record reveals that the trial court did not fully consider the financial status of the parties in that it refused to admit testimony by the wife as to her present financial situation. Rather, the trial court determined this question solely on the basis of information before it as to the income of the parties and the amount of money to be generated from the future sale of their home, without having considered their respective obligations and liabilities. The failure of the trial court to permit testimony relevant to this issue constitutes an abuse of discretion.
We therefore reverse the judgment entered and remand this matter with directions that the trial court hold such further hearings as may be necessary regarding the current situation of the parties and the children and make a redetermination as to the issue of removal of the children from the state based on the proper criteria. We further direct that the court afford the parties an opportunity to submit evidence relative to their financial resources and obligations in order that the court may redetermine the attorney's fee question.
Judgment reversed.
VanCISE and STERNBERG, JJ., concur.