(561 P.2d 17)
No. 76-170Colorado Court of Appeals.
Decided November 26, 1976. Rehearing denied December 16, 1976. Certiorari denied March 14, 1977.
In dissolution of marriage proceeding, from trial court’s order changing custody of child from father to mother, father appealed.
Order Reversed
1. PARENT AND CHILD — Favorable Change — Mother’s Circumstances — Not Sufficient Basis — Modification of Custody Decree. Although appellate courts are reluctant to disturb rulings of the trial court in custody matters, the trial court must comply with the provisions of the child custody statute, and, under that statute, the mere fact that the mother’s circumstances have changed for the better does not constitute a sufficient basis for changing the original custody order.
2. Modification of Custody Decree — Scope of Inquiry — Limited by Statute. The statute controlling the modification of a prior child custody decree limits the scope of inquiry to a change in circumstances of the child or the custodial parent, and dictates that the court shall retain the custodian established by the prior decree absent a showing of endangerment to the child’s physical health or impairment of the child’s emotional development; thus, where the evidence would not support such findings and where there was no evidence to show any particular advantage to the child in a change of custody from the father to the mother, the trial court’s order so changing custody must be reversed.
Appeal from the District Court of Adams County, Honorable Jean J. Jacobucci, Judge.
Sloat Warren, Gerald C. Sloat, Bruce W. Warren, for appellant.
Reynard, Dorwart Booms, P.C., William F. Reynard, John K. Dorwart, for appellee.
Division II.
Page 409
Opinion by JUDGE VAN CISE.
The appellant, Randolph Larington (the father), appeals from an order granting the motion of appellee, Saralyn Jane Larington (the mother), for change of custody of their four-year-old child, Judy. We reverse.
On April 25, 1973, the parties’ marriage was dissolved, and custody of the child was granted to the father. In April 1974, the mother filed her motion for change of custody based on claimed difficulties in her visitation with the child, alleged conduct on the part of the father and his parents which she maintains was alienating the child’s affections for her, and her belief that continued placement with the father would cause mental distress to the child. On May 28, 1974, there was a partial hearing on her motion, at which time the court continued the matter for a year, prescribed interim visitation rights, and ordered a custody investigation.
The matter was then heard on July 29, 1975. Extensive testimony, including facts that had arisen since or that were unknown to the court at the time of the prior decree, together with the custody investigation report of the welfare department, was presented. All of the testimony reflected that the physical and emotional environment of the child in the father’s home was of a positive nature. And, one psychologist who recommended that custody be awarded to the mother even acknowledged repeatedly that the child was doing very well in the father’s custody.
At the close of the hearing, the court announced its findings, which included the statement that, with regard to the previous custody order, the court had found that both parents were adequate, had reluctantly made the temporary orders permanent, and had granted reasonable rights of visitation. With regard to the May 1974 hearing, when the matter was continued for a year, both parents were found to be competent custodial parents. It then went on to state in the 1975 order:
“The court further finds that at times the [mother] has not acted maturely in the past, and that both parties have made progress in their attitudes and actions, especially the [mother]. The court is concerned that the relatives of the [father] cannot say anything favorable about the [mother] and perpetuate discord and, thus, emotional trauma to the child.[1] The court further finds that all of the social histories, and particularly the social history prepared by the personnel of the Adams County Probation Department indicate that each party would be an adequate parent. The court points out that the permanent orders and the motions were continued in
Page 410
April, 1974, to this date, and because of a change in circumstances, including attitudes of the relatives of [the father], it is appropriate to deny the motion made by [the father], in re: C.R.S. 14-10-131. The court believes it is in the best interests of the child, Judy Larington, to live with her mother (respondent) at this time. The respondent is expected to continue to progress and receive counseling, if necessary, and the court finds that a change in environment would not be a disadvantage to the child . . . .”
Custody was then ordered changed to the mother.
Had this matter been before the court for an original custody determination pursuant to §§ 14-10-123 and 124, C.R.S. 1973, awarding the custody in the first instance to the mother might have been a proper exercise of judicial discretion. However, that was not the situation before the trial court. The original custody orders, the temporary order in November 1972, and the permanent order in April 1973, awarded custody to the father. This matter was before the court on a motion for modification of the prior custody decree, and determination of such a motion is controlled by the provisions of § 14-10-131(2), C.R.S. 1973. That statute provides:
“The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the custodian established by the prior decree unless . . .
“(c) The child’s present environment endangers his physical health or significantly impairs his emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.”
The custody investigation report, the psychologist’s reports, and all of the testimony established that, since the prior decree in 1973, the custodial parent’s circumstances have changed for the better in that he is out of the Navy, has a good job, has remarried and has an adequate home in a good environment for the child. The circumstances of the child have changed to that extent and, if anything, her physical health and emotional development have improved. There was nothing to show that the child’s present environment endangers her physical health or significantly impairs her emotional development; rather, the evidence is just to the contrary. Other than a stated preference by the court social worker and by the psychologist for a mother rather than a father to have the custody of the child, even though both are considered to be fit parents, there was no evidence to show any particular advantage to the child in a change of environment from the home of the father to the home of the mother.
Page 411
[1,2] Although appellate courts are reluctant to disturb rulings of the trial court in custody matters, Christian v. Randall, 33 Colo. App. 129, 516 P.2d 132, the statute is clear, and the trial court must comply with its provisions. The mere fact that the mother’s circumstances may have changed for the better does not constitute a sufficient basis for changing the original custody order. Coulter v. Coulter, 141 Colo. 237, 347 P.2d 492. For the sake of continuity and stability, the statute limits the scope of inquiry to the change in circumstances of the child or the custodial parent, and dictates that “the court shall retain the custodian established by the prior decree” absent the showing required by § 14-10-131(2)(c), C.R.S. 1973. The court’s findings do not comply with those requirements, and, even if there were such findings, the evidence would not support them.The order changing the custody from the father to the mother is reversed, and the cause is remanded with instructions to reinstate the original order granting custody to the father.
CHIEF JUDGE SILVERSTEIN and JUDGE PIERCE concur.