- Bookmark
- Share
- CaseIQ
IN RE THE MARRIAGE OF HOFFMAN
In re the Marriage of Darrell Hoffman and Leila Jean Hoffman, No. 84CA0268 (Colo. Ct. App. Mar. 14, 1985)
Factual and Procedural Background
The parties were married June 10, 1972, and their eleven-year marriage was dissolved by decree on May 25, 1983. The parties had two children (at the time of the permanent orders hearing a son age four and a daughter age eighteen months). After separating in April 1982, the wife left Colorado with the children and established residence in California. The husband filed for dissolution, seeking custody. At the permanent orders hearing the trial court awarded sole custody to the wife, allowed her the right to take the children to California, ordered the husband to pay child support of $125 per month per child, granted the husband reasonable and liberal visitation rights (including a two-week visitation immediately after the hearing), and ordered that the children be returned to Colorado within one year of the date of the order. The wife appealed orders relating to custody and child support. The children remained in California with the wife during the appeal.
Legal Issues Presented
- Whether the trial court erred by ordering that the children be returned to Colorado within one year of the date of the custody order.
- Whether the trial court erred in the amount of child support by considering the travel/transportation expenses the husband would incur to exercise visitation in California.
Arguments of the Parties
Appellant's (Wife's) Arguments
- The trial court erred in ordering the children returned to Colorado within one year because the court could not determine at the time of the order whether such a return would be in the children's best interests one year later.
- The trial court erred in fixing child support because it considered the husband's transportation costs to exercise visitation in California when setting the child support amount.
Appellee's (Husband's) Arguments
- The opinion does not contain a detailed account of the appellee's legal arguments beyond the trial court's rulings and the matters described above.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In re Marriage of McGee, 44 Colo. App. 330, 613 P.2d 348 (1980) | Authority of a court to permit removal of children from Colorado by the custodial parent. | Noted that the court's authority to permit removal was not challenged and therefore removal could be authorized when appropriate. |
| In re Marriage of Casida, 659 P.2d 56 (Colo. App. 1982) | Support for awarding custody to a parent who is permitted to take children out of state when based on best interests. | Used to support the trial court's initial determination that custody could be awarded to the mother along with the right to take the children to California. |
| Bernick v. Bernick, 31 Colo. App. 485, 505 P.2d 14 (1972) | Authority relating to custody awards and removal where best interests support such an award. | Also cited to support the trial court's award of custody to the mother with permission to relocate the children. |
| Sweimler v. Sweimler, 161 Colo. 595, 423 P.2d 842 (1967) | Limits on a court's ability to make determinations about future circumstances affecting children's best interests. | Applied to conclude the trial court could not validly order return of the children to Colorado in one year because it could not determine then whether that future move would be in the children's best interests. |
| Searle v. Searle, 115 Colo. 266, 172 P.2d 837 (1946) | Consideration of parental expenses in determining child support and the needs/ability to pay analysis. | Used to support the proposition that travel expenses related to visitation may be properly considered when assessing the noncustodial parent's ability to pay support and the children's needs. |
| In re Marriage of Krise, 660 P.2d 920 (Colo. App. 1983) | Recent appellate support for considering expenses related to visitation in child support determinations. | Cited to reinforce that transportation costs for exercising visitation may be considered in setting child support. |
Court's Reasoning and Analysis
The court divided its analysis into two parts corresponding to the appellant's contentions.
First, regarding the one-year return-to-Colorado provision, the court accepted that the trial court had authority to permit removal of the children and that awarding custody to the mother with the right to take the children to California could be appropriate when based on the children's best interests. However, the appellate court found that the trial court erred by ordering return of the children to Colorado in one year without making any finding that such a return would be in the children's best interests at that future time. The court reasoned it was impossible at the time of the order to determine what the children's best interests would be one year later; thus the prospective return order was speculative and unsupported. The court cited Sweimler v. Sweimler for the proposition that a court cannot validly make such a future-dated determination about the children's best interests.
Second, on the challenge to the child support amount, the court analyzed the trial court's consideration of the husband's travel expenses in the context of visitation rights. The trial court had found the husband to be a fit parent and had granted him reasonable and liberal visitation rights despite awarding custody to the wife. The appellate court concluded that the expense the husband would incur to exercise those visitation privileges was properly considered when assessing the husband's ability to pay child support and the needs of the children, citing statutory authority (section 14-10-115(1)(d), C.R.S.) and supporting case law (Searle; In re Marriage of Krise). The court therefore found no error in considering transportation costs in setting support.
Holding and Implications
Holding: The appellate court reversed the portion of the trial court's judgment directing that the children be returned to Colorado within one year of the date of the order, and it affirmed the remainder of the judgment.
Implications:
- Direct effect on the parties: The trial court's prospective one-year return order is vacated; the custody award to the wife, the visitation rights granted to the husband, and the child support obligation of $125 per month per child remain in effect as affirmed by the appellate court.
- No broader legal change was announced by the opinion beyond application of existing authority: the court applied established principles that a court may permit removal when custody and best interests support it, but a court may not make speculative future determinations about the children's best interests without appropriate findings.
Opinion by Judge Silverstein; Chief Judge Enoch and Justice Hodges concur. Appeal from Adams County District Court, Hon. Michael A. Obermeyer, Judge. Decided March 14, 1985; rehearing denied April 4, 1985.
Opinion by JUDGE SILVERSTEIN[fn*]. [fn*] Sitting by assignment of the Chief Justice under provisions of theColo. Const., Art. VI, Sec. 5(3), and 24-51-607(5), C.R.S. (1982 Repl. Vol. 10).
This eleven-year marriage was dissolved on May 25, 1983. The wife seeks review of the trial court's orders relative to custody and child support. We affirm in part and reverse in part.
The parties were married on June 10, 1972. The parties had two children who were, as of the date of the permanent orders hearing, a son age 4, and a daughter of 18 months. Following the separation of the parties in April of 1982, wife left Colorado with the children and took up residency in California. Husband then commenced this action for dissolution of marriage seeking, among other things, custody of the children.
Following a hearing, the trial court, in recognition of the age of the children and the circumstances of the husband and wife, specifically concluded "it would be in the best interests of the children that sole custody be awarded to the [wife]." The court ordered husband to pay child support in the sum of $125 per month per child and granted him certain visitation rights, and it also ordered that the children be returned to Colorado from California within one year of the date of the order.
Wife traveled to Colorado with the children for the hearing, and the court ordered that the children be returned to her custody following a two-week visitation period with husband commencing the day of the hearing. The children were then returned to California where they have remained with wife pending this appeal.
I.
On appeal wife contends the trial court erred in ordering the children returned to Colorado within one year after the date of the order. We agree.
The authority of the court to permit removal of the children from Colorado is not questioned. See In re Marriage of McGee, 44 Colo. App. 330, 613 P.2d 348 (1980).
Here, the court determined that, at the time of the hearing, it was in the best interests of the children that custody be awarded to the mother, with the right to take the children to California. See In re Marriage of Casida, 659 P.2d 56 (Colo.App. 1982); Bernick v. Bernick, 31 Colo. App. 485, 505 P.2d 14 (1972). However, the court, in ordering that the children be returned to Colorado in one year, made no finding that such a move would be in the best interests of the children, and, in fact, was in no position to do so.
When the trial court entered the order, it was impossible for it to determine what the effect would be on the children if its order to return the children were to be carried out and what the children's best interests might be one year following the grant of sole custody to wife. Thus, the trial court's order cannot stand. See Sweimler v. Sweimler, 161 Colo. 595, 423 P.2d 842 (1967).
II.
Wife next argues that the court erred in fixing the amount of child support since the court, in setting its award, considered the transportation costs husband would incur to effectuate visitation with the children in California. We disagree.
Section 14-10-129, C.R.S., directs that the non-custodial parent receive visitation rights unless the court finds the best interests of the children otherwise require. The trial court here, while awarding custody to wife, specifically found husband a fit and proper parent and granted him "reasonable and liberal" rights of visitation. The expense involved in exercising these rights was properly considered in connection with assessing the husband's ability to pay child support and the needs of the children. See ยง 14-10-115(1)(d), C.R.S. See also Searle v. Searle, 115 Colo. 266, 172 P.2d 837 (1946); and In re Marriage of Krise, 660 P.2d 920 (Colo.App. 1983).
That part of the judgment directing return of the children to Colorado is reversed, and the remainder of the judgment is affirmed.
CHIEF JUDGE ENOCH and JUSTICE HODGES concur.
Alert