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Docket Number

No. 79CA0203

Attorney(S)

Stevens Moskovit, P.C., Roger E. Stevens, Harriet Templer Moskovit, for appellant. Sheldon, Bayer, McLean Glasman, P.C., Robert L. McGee, Jr., for appellee.

Judges

Opinion by CHIEF JUDGE ENOCH.

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Smart Summary

Case Summary: In re the Marriage of Scott Moreland McGee and Esther McGee, No. 79CA0203 (Colo. Ct. App. May 29, 1980)

Factual and Procedural Background

The parties were married in Switzerland in 1969. They lived mostly in the United States during the marriage, where their child was born. The mother retained Swiss citizenship; the father is a U.S. citizen. After a 1977 dissolution of marriage in the mother's absence (the mother and child had returned to Switzerland with the father's consent), the father was initially awarded custody. The parties later stipulated to set aside the earlier custody orders, both appeared at a subsequent hearing, and the trial court granted permanent custody to the mother, who resided in Switzerland. At the time of the custody decision the child was three years old. The trial court also restricted visitation: one week in 1979 and 1980, and two weeks annually for each of the next seven years, all to be exercised in the city where the mother and child reside. The father appealed, challenging the award of custody to the mother in a foreign country, the visitation limits, and the absence of a custodial investigation under § 14-10-127, C.R.S. 1973.

Legal Issues Presented

Whether the trial court abused its discretion by awarding permanent custody to the mother who resided in Switzerland.
Whether the trial court's limitation of the father's visitation (one week in 1979 and 1980, then two weeks annually for seven years) denied the father the reasonable visitation guaranteed under § 14-10-129(1), C.R.S. 1973, and was an abuse of discretion.
Whether the trial court was required to order sua sponte a custodial investigation under § 14-10-127, C.R.S. 1973, and whether any request for such an investigation was waived by untimely request or absence of timely process.

Arguments of the Parties

Appellant's (Father's) Arguments

Challenged the award of permanent custody to the mother in a foreign country as an abuse of discretion.
Contended the visitation limitations were unreasonably restrictive and denied the reasonable visitation rights guaranteed a noncustodial parent by § 14-10-129(1), C.R.S. 1973.
Asserted the trial court erred in making a custody determination without ordering a custodial investigation pursuant to § 14-10-127, C.R.S. 1973, arguing the statute's language is mandatory and requires the court to order an investigation sua sponte.
Alternatively argued that a suggestion made during the hearing should have been treated as a request for an investigation; contended the court should have ordered one on that basis.

The opinion does not contain a detailed account of appellee's (mother's) specific legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nelson v. Card, 162 Colo. 274, 425 P.2d 276 (1967)	Policy permitting removal of a child from the jurisdiction when removal serves the child's well-being and future interests.	The court relied on this policy to support that awarding custody to a mother residing in Switzerland was not necessarily an abuse of discretion when it served the child's best interests.
Crites v. Crites, 137 Colo. 220, 322 P.2d 1045 (1958)	The best interest of the child must predominate in custody determinations.	Invoked to emphasize that custody and visitation decisions must be guided by the child's welfare rather than parental punishment.
Searle v. Searle, 115 Colo. 266, 172 P.2d 837 (1946)	Importance of preserving the child's opportunity to know and associate with both parents; warning against denying such association.	Quoted to support the view that denying contact with a parent may be more harmful to the child than other deprivations; used to criticize excessive curtailment of visitation.
Harrison v. Harrison, 170 Colo. 397, 462 P.2d 119 (1969)	Even where one parent is found unfit as custodial parent, liberal visitation rights have been favored.	Used to support the general principle favoring liberal visitation and to argue against unduly restrictive visitation limitations.
In re Marriage of Armbeck, 33 Colo. App. 260, 518 P.2d 300 (1974)	Untimely request for a custodial investigation (or failure to secure report delivery within statutorily required time) results in waiver.	Applied to conclude that because a custodial investigation report was not timely requested or provided ten days before the hearing as required by statute, any right to the investigation was waived.

Court's Reasoning and Analysis

The court addressed custody and visitation separately.

Custody: The court reiterated that the child's best interest is the predominant consideration and that Colorado policy permits removal of a child from the jurisdiction if it serves the child's welfare (citing Nelson v. Card). The trial court had specifically found that either parent could be a fit custodial parent but that the mother had a stronger relationship with the child and the child had adjusted to living with the mother. The appellate court found evidence supported these findings and therefore held that awarding permanent custody to the mother in Switzerland was not an abuse of discretion.
Visitation: The court examined the visitation limitation and found it excessively restrictive (one week in 1979 and 1980, then two weeks annually for seven years). The court observed that the trial court's justification appeared rooted in frustration over the father's work habits and past conduct during the marriage, which are not valid bases for severely limiting visitation. Citing statutes and precedent (Crites, Searle, Harrison), the court emphasized the child's well-being and the preference for liberal visitation. Because the trial court had found the father fit to be a custodial parent and there was no finding that reasonable visitation would endanger the child's physical health or emotional development under § 14-10-129(1), the appellate court concluded the visitation limitation was unreasonable and an abuse of discretion.
Custodial Investigation (§ 14-10-127): The court held the trial court had no duty to order a custodial investigation sua sponte under the 1973 version of the statute. The court further reasoned that no prejudice resulted from the absence of an investigation because the father admitted at trial he had no strong criticism of the mother as custodian. The court also addressed an alternate contention: even if counsel's remarks were tantamount to a request for investigation, such a request was untimely because the statute mandates providing copies of any investigation report to both parties ten days prior to the hearing; thus the father waived any right to request the investigation (citing In re Marriage of Armbeck). The court noted the legislature subsequently clarified the statute to give trial courts discretion to order investigations.

Holding and Implications

Holding: The appellate court affirmed the trial court's award of permanent custody to the mother residing in Switzerland and reversed the portion of the trial court's orders limiting the father's visitation; the matter was remanded with directions to allow more reasonable visitation beginning in 1980.

Implications:

The mother’s status as custodial parent is affirmed and stands despite her residence in Switzerland, based on findings that awarding custody to her best served the child's interests.
The visitation schedule imposed by the trial court was found unreasonable and constituted an abuse of discretion; the case was remanded for the trial court to establish more reasonable visitation rights commencing in 1980.
The court held that under the 1973 statute the trial court was not required to order a custodial investigation sua sponte and that an untimely request for such an investigation is waived; the opinion notes the legislature later clarified the statute to make the investigation discretionary. The opinion does not purport to establish a new rule of broad application beyond these holdings; its direct effect is the affirmation of custody to the mother and the reversal/remand as to visitation.

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In re the Marriage of Scott Moreland McGee and Esther McGee

1. DISSOLUTION OF MARRIAGE — Award of Child Custody — Mother — Resided in Switzerland — Not Abuse of Discretion. Where there was evidence to support finding that although either parent could have been a fit custodial parent, the relationship of the child and mother was stronger and that the best interest of the child would support permanent custody with the mother, the trial court did not abuse its discretion in awarding custody of minor child to mother, who resided in Switzerland.

Opinion by CHIEF JUDGE ENOCH.

This appeal arises out of a dispute over custody and visitation of the only child of a marriage dissolved in 1977. We affirm that portion of the orders by the trial court relating to permanent custody, but reverse the part of the orders dealing with visitation.

The parties met and married in Switzerland in 1969, and although they lived during most of the marriage in the United States, where the child was born, the mother retained Swiss citizenship. The father has always been a citizen of the United States. At the time of the decree of dissolution, the parties already were separated, the mother and child, with the consent of the father, having returned to Switzerland, and the father remaining in Colorado. Those proceedings were in the absence of the mother and child. The father was awarded custody.

Prior to the proceedings now on appeal, the parties stipulated to set aside the earlier custody orders and both parties appeared at the hearing. After hearing evidence, the court granted permanent custody to the mother in Switzerland. All visitation with the child, then three years old, was to be exercised in the city where the mother and child might reside. The father was allowed one week of visitation in 1979 and 1980, and thereafter, two weeks each year until the child reaches the age of 12.

The father contends that it was an abuse of the trial court's discretion to award permanent custody to the mother in a foreign country. We disagree.

The best interest of the child must predominate in any custody determination. Section 14-10-124, C.R.S. 1973. And the policy of the law in Colorado is to permit removal of a child from the jurisdiction where it will serve the well-being and future interests of the child. Nelson v. Card, 162 Colo. 274, 425 P.2d 276 (1967).

[1] The trial court specifically found that although either party would be a fit and proper custodial parent, the interests of the child would best be served by her being in the custody of the mother. The evidence supports the court's finding that the relationship of the child with her mother was stronger than with her father and that the child had made an adjustment to a home with the mother. Therefore, there was no abuse of discretion by the court in granting custody to the mother.

The father also challenges the court's order for visitation on grounds that it does not allow him the reasonable visitation guaranteed a noncustodial parent under § 14-10-129(1), C.R.S. 1973. We agree.

In that portion of its orders dealing with visitation, the trial court relied not only on its findings of a lack of recent contact between the father and child, but also on a finding that the mother was more "career oriented" than the father, and that the father "was not a particularly good provider when the family was intact." In the interest of the child, the trial court also reasoned that visitation should take place in the city where the mother and child reside until the child becomes reacquainted with her father.

[2] While we do not disagree that, perhaps at least initially, the child should renew contact with her father in her own home environment, we do not agree that the visitation rights (one week in 1979 and 1980, and two weeks for each of the next seven years) should be so drastically curtailed. There is nothing in the record to justify such a limitation other than the court's apparent frustration over the father's work habits and conduct during the marriage.

It is the well-being of the child rather than the reward or punishment of a parent that ought to guide every aspect of a custody determination, including visitation. Section 14-10-124, C.R.S. 1973. See Crites v. Crites, 137 Colo. 220, 322 P.2d 1045 (1958); Searle v. Searle, 115 Colo. 266, 172 P.2d 837 (1946). Even when one parent has been found not fit to be the custodial parent, liberal visitation rights have been favored. Harrison v. Harrison, 170 Colo. 397, 462 P.2d 119 (1969). The often-quoted remark in Searle v. Searle, supra, bears repeating here:

"'[T]o deny to the child an opportunity to know, associate with, love and be loved by either parent may be a more serious ill than to refuse it in some part those things which money can buy.'" [ 115 Colo. at 272, 172 P.2d at 840.]

The court found that the father was fit and proper to be a custodial parent and there was no finding by the court, nor anything in the record to indicate that reasonable visitation by the father would "endanger the child's physical health or significantly impair [her] emotional development." Section 14-10-129(1), C.R.S. 1973. Under these circumstances we find the visitation limitation to be unreasonable and an abuse of discretion.

Finally, we address the father's contention that it was improper to make a custody determination in the absence of an investigation regarding custodial arrangements as provided in § 14-10-127, C.R.S. 1973. The father argues that the language of the statute is mandatory and that the statute should be interpreted to require the court sua sponte to order such an investigation, even where the parties do not request it. We find no error.

[3] The trial court had no duty on its own under § 14-10-127, C.R.S. 1973, to order a custodial investigation. And here, the court had no reason to order the investigation. The father admitted at trial that he had no strong criticism of the mother as a custodian, except his belief that she would set higher goals and expectations, whereas he would be a more flexible and understanding parent. Thus, because he did not dispute the mother's qualifications as custodian, the absence of an investigation could not have been prejudicial to his interests.

The General Assembly has since clarified the statute to specify that the trial court now has discretion on the issue of ordering a custodial investigation. Section 14-10-127, C.R.S. 1973 (1979 Cum. Supp.)

[5] The father argues alternately that the court should have ordered an investigation because of a suggestion made during the hearing. Even if we were to assume that the remarks of counsel were tantamount to a request for the investigation, such a request was not timely. Section 14-10-127(3), C.R.S. 1973, clearly mandates that where there is an investigation, the court must provide copies of the report to both parties ten days prior to the hearing. Hence, the father waived any right to request an investigation. See In re Marriage of Armbeck, 33 Colo. App. 260, 518 P.2d 300 (1974).

That part of the court's order creating the status of custodial parent in the mother is affirmed, and that part of the order fixing visitation rights by the father is reversed and the cause is remanded with directions to the trial court to allow more reasonable visitation rights beginning in 1980.

JUDGE SMITH and JUDGE RULAND concur.

IN RE MARRIAGE OF McGEE