Opinion
No. 21245.
Decided March 27, 1967.
Action in divorce. From an order which permitted former wife to remove daughter from this state to another state, the former husband brought error.
Affirmed.
1. DIVORCE — Child — Removal — Subsequent Marriage — Different State — Best Interests — Propriety. Where divorced wife remarried and was permitted by court to remove only child of parties from Colorado to California based on fact that second husband was offered better position in latter state, and where former husband was given reasonable visitation rights, held, under such circumstances, trial court did not abuse its discretion in authorizing wife to take child to California; especially, where record reflects best interests of child would be served in permitting such removal.
2. Custody — Welfare of Child — Desires of Parents. In custody cases, the welfare of the child governs, and to that welfare the rights and personal desires of the parents are subservient.
3. Injured Feelings — Divorced Parents — Best Interests of Child. Injured feelings of divorced parents must give way to what the court feels is for the best interests of the child.
4. Rights of Father — Best Interests of Child — Conscientious Effort — Trial Court. Record discloses a conscientious effort on the part of the trial court to recognize the legitimate rights of the father and also to give proper emphasis to the best interests of the child in question.
Error to the County Court of Adams County, Honorable Oyer G. Leary, Judge.
Edison and Berman, for plaintiff in error.
Landrum and Pierce, for defendant in error.
The writ of error issued in this case is directed to an order of the trial court entered in a divorce action under which the former wife of Ray J. Nelson was permitted to remove their daughter (the only child born of the marriage) from the State of Colorado to the State of California. Subsequent to the entry of the divorce decree the mother, hereinafter referred to as Martha, had married one David Charles Card, Jr. who was employed by the Colorado School of Mines Research Foundation. In December 1963 Card was offered employment with the Jet Propulsion Laboratories of Pasadena, California, at a substantial increase in salary. This position offered a more promising future for him and those dependent upon him. Two children had been born to him and Martha since their marriage.
In authorizing the removal of the child from Colorado to California the trial court ordered that:
"1. Prior to removing said minor child, plaintiff shall post a bond the amount of $5,000 to assure return of said child to the State of Colorado.
"2. The defendant was granted summer visitation rights for a period of one month each year.
"3. The defendant was granted a visitation period period of two weeks at Easter of each year.
"4. In the event the defendant went to California, he would be granted reasonable visitation rights.
"5. The plaintiff was ordered to keep the court and the defendant notified at all times of the child's residence address."
All of these conditions have been complied with, and during the pendency of the action in this court the child has been residing in California with Martha and the other members of the Card family.
In essence, it is argued that the trial court abused its discretion in authorizing Martha to take the child to the State of California; and that upon the record before us we should vacate the order permitting the move and direct that the child be returned to Colorado. Opinions of this court relied upon by counsel for the father as supporting his position are clearly distinguishable on the facts.
[1, 2] The record has been carefully examined and under the circumstances disclosed we cannot say that any abuse of discretion on the part of the trial court is shown. The trial court specifically found that the best interests of the child would be served in permitting her removal to California. There is evidence to support this finding. We have repeatedly held that the welfare of the child governs, and to that welfare the rights and personal desires of the parents are subservient. Schlabach v. Schlabach, 155 Colo. 377, 394 P.2d 844.
[3, 4] A change in the father's visitation privileges is an unfortunate but not unusual result of a broken marriage. Injured feelings of the divorced parents must give way to what the court feels is for the best interests of the child. The record discloses a conscientious effort on the part of the trial court to recognize the legitimate rights of the father and also to give proper emphasis to the best interests of this little girl.
The judgment is affirmed.
MR. JUSTICE DAY, MR. JUSTICE McWILLIAMS and MR. JUSTICE HODGES concur.