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512 P.2d 637 Jean Marie Rayer v Richard S. Rayer
Colorado Court of Appeals, Div. 1.
Jean Marie Rayer, Plaintiff-Appellant,
v.
Richard S. Rayer, Defendant-Appellee
No. 72-199.
July 17, 1973. Selected for Official Publication.
The District Court, El Paso County, Patrick M. Hinton, J., awarded divorce to the wife and custody of the four children of the marriage to the husband, granted the wife reasonable rights of visitation, divided the couple's property between them and awarded alimony to the wife in gross, and the wife appealed. The Court of Appeals, Smith, J. held that the trial court had not erred in considering an investigative report made by an officer of the juvenile probation department, even though the report was that the court had not erred in engaging in an informal conference with the author of the investigative report; that the trial court had not abused its discretion in conferring with the couple's children alone and without a record being made that the evidence supported the court's award of custody to the husband; and that, in view of that award of custody and surrounding circumstances, the court's award of alimony in gross to the wife was justified.
Affirmed.
Reports and recommendations. Court did not err in considering investigative report made by officer of juvenile probation department in arriving at its decision to award custody of minor children to father after awarding divorce to mother where, although investigative report was made part of recordand had been furnished perviously to both parties, it was not formally offered and received in evidence.
Where investigative report of juvenile probation department was made part of record in divorce proceeding and had been furnished previously to both parties and considered by court in rendering its decree, wife had right, although she did not choose to exercise it, to call and examine author of report.
Where there was no indication of record or from any other source that court's discussions with author of investigative report upon which it had relied in awarding custody of minor children in divorce proceeding had exceeded bounds of propriety, such discussions did not constitute reversible error.
Presumptions. Presumption was that in makingits decision as to award of custody of minor children during divorce procedeedings, trial court disregarded any incompetent evidence or additional information to which it might have had access by virtue of alleged conversations with author of investigative report made by officer of juvenile probation department.
Custody cases are not adversary proceedings, but hearings to determine whaqt placement of child will be in the child's best interest, and determination of custody is left to discretion of trial judge.
In absence of showing of abuse of trial court's discretion, appellate court would not disturb award of custody of four minor children to husband rather than to wife on ground that court had met with children privately without presence of counsel or court.
Behavior of parties in general. Mere fact of motherhood is not sufficient to give mother in divorce proceedings any special standing or preference as to custody, and prime criterion in court's determination is welfare of children.
In general. Even though divorce was awarded to wife, evidence was sufficient to support court's award of custody of four minor children to husband.
Whether court should award periodic alimony of alimony in gross is within sound discretion of court.
Nature and purpose of spousal support; property award distinguished.
Periodic alimony is generally favored because court retains jurisdiction of matter and may later modify award, and alimony in gross will not normally be awarded unless special circumstances are present which support such award.
Where there was no indication that wife could not find employment to support herself, husband was awarded custody of children and his finanaical condition wa such that his entire income was necessary to support children, and amount awarded for alimony in gross was not inadequate, award of alimony in gross was not abuse of the court's discretion.
Where wife was awarded divorce, husband was awarded custody of four children, and husband was awarded television repair business while wife as awarded income-producing rental property as part of alimony in gross, awards did not constitute abuse of trial court's discretion.
Where record indicated that trial court intended its order dividing parties' property to include award of attorney fees as part of its settlement of alimony and property division, court did not err in failing to make separate award to wife for attorney fees.
SMITH, Judge.
On December 31, 1971, Jean Marie Rayer, plaintiff, was granted a decree of divorce from Richard S. Rayer, defendant. The court, after a hearing, awarded custody of four children to defendant and granted plaintiff reasonable rights of visitation. The court also divided property between the parties and awarded alimony in gross Plaintiff appeals asserting various allegations of error which we find to be without merit. We therefore affirm.
Plaintiff asserts initially that the court improperly utilized an investigtive report made by an officer of the Juvenile Probation Department in arriving at its decision relative to custody. While it is true that the investigative report was not formally offered and received in evidence, this does not prevent the court from considering the conclusions or recommendations contained in the report.
The investigative report was made a part of the record and had been furnished preivously to both parties. Although she did not choose to do so, plaintiff had the right to cal and examine the author of the report. See Anderson v. Anderson, Aylor v. Aylor. The court did not err in its use of the investigative report.
evidence, or additional information to which it might have had access. Vanadium Corporation v. Wesco Stores Co., 135 Colo. 77, 308 P.2d 1011.
The trial court met with the children privately without the presence of counsel or a court reporter. Plaintiff points out that 1971 Perm.Supp., C.R.S.1963, 46-1-26, provides that the court may confer with a child privately but requires that a record of the interview be made a part of the record. In the present case, the court, without objection from counsel of either party, conducted private interviews of the children and made no record of the interviews. However, the statute cited by the plaintiff was not in effect at the time of this interview, and the court will be held to the standard of the common law existing at the time the interviews took place. In the absence of the statute, the conflict becomes one between the fundamental precept of due process that a judicial decision must be based on the evidence presented in open court with adequate opportunity for each other and the pressures upon a child involved in a custody hearing when the child is called upon to state a preference. See the discussion in Rea v. Rea, 195 Or. 252, 245 P.2d 884. However, as was pointed out in Oakes v. Oakes, 45 Ill.App2d 387, 195 N.E.2d 840, a hearing on custody is distinguishable from the ordinary adversary civil proceeding. Custody cases are not adversary proceedings, but hearings to determine what placement of the child will be the the child's best interests. The trial court, who is best able to appraise the circumstances of the parties, is best fitted to make the factual determinations regarding custody. For this reason the determination of custody is left to the discretion of the trial judge. Hence, in the absence of an abuse of that discretion, we will not disturb these determinations. Wiederspahn b. Wiederspahn, 146 Colo. 214m 361 P.2d 125.
In the present case, the court announced several times its intention to interview the children without the presence of counsel or of a reporter. No timely objection was made to such procedure and it is apparent from the record that both parties were aware of the preferences of the children which the court intended to ascertain in the interviews. After the interviews had been concluded, the court specifically solicited objections to the proceeding and none were forthcoming. Counsel made no request of the court that he state the substantive content of the statement made by the children, and, in fact, the actions of plaintiff-appellant implied consent to the form of the proceedings. Therefore, in spite of the requirement of the law now in effect, an in light of the large amount of discretion given the trial court in these matters, we o not feel that any procedural error which may have inadvertently been committed by the court was of such magnitude as to require reversal on this issue
Plaintiff argues that because the court did not find the mother unfit to have custody of the children, it erred by failing to award the custody of the minor children to her. The mere fact of motherhood is not sufficient to give plaintiff any special standing in the proceeding or preference as to custody. 1967 Perm.Supp., C.R.S1963, 46-2-4(6). The prime criterion in the court's determination is the welfare of the children. Breene v. Breene, 51 Colo. 342, 117P. 1000.
Plaintiff argues that the court's findings of fact are not sufficient to support the custody award under Cacic v Cacic, 164 Colo. 103, 432 P.2d 768. In that case the court made no findings nor gave any explanation to support its award of custody to their father. In the present case, the court found from the bench at the end of the hearing that the best interests of the children would be served by awarding the children to the defendant, and in so doing explained the facts and reasons upon which it based its decision. This is sufficient to meet the requirements of Cacic.
The court awarded alimony in gross to plaintiff. This is asserted to be error by plaintiff for the reason that she feels that the amount was inadequate an that the court should have retained jurisdiction to modify its alimony award. Whether the court should award periodic alimony or alimony in gross is within the sound discretion of the court. Carlson v. Carlson, Colo,m P.2d 1006. Periodic alimony is generally favored because the court retains jurisdiction of the matter an may later modify the award. Alimony in gross will not normally be aware unless special circumstances are present which support such award. Carlson, supra. In the present case the wife does not have custody of the children. There is no indication that the wife cannot find employment and support herself. In addition, the financial condition of defendant was such that because of his additional burden of the children his entire income was necessary to support the children, an and award in gross obviated the necessity of encumbering his earning capacity. The amount awarded for alimony was not so grossly inadequate, in our opinion, as to constitute an abuse of discretion.
Plaintiff complains that the court inequitably divided property between the parties. The basis of this claim is the failure of the court to determine a value of the defendant husband's television repair business. The record discloses that the sole assets of the business were the tools necessary to repair television sets and a certain inventory of sets to be repaired or sets to sold, many on consignment. The defendant's testimony supported the conclusion of the trial court that he would need the entire income from his business to support himself and the children. Defendant was awarded his business with its income producing potential, and plaintiff was awarded income producing potential, and plaintiff was awarded income producing rental property. This disparity in values awarded to the parties is not great, particularly in light of the continuing additional responsibility of the defendant father who retained custody of the four minor children of the parties. The division of property in a divorce proceeding again is a matter resting within the sound discretion of the trial court. Hyde v. Hyde, 169 Colo. 403, 457 P2d. 393. We find no abuse of that discretion.
Finally, plaintiff claims that it was error for the trial court to not have awarded attorney fees to her. The allowance of attorney fees was considered by the court in conjunction with matters of property settlement, and the issue must therefore depend upon whether the record reflects that the property settlement order contemplated attorney fees and whether as a whole it was fair and equitable. Krall v. Krall, 31 Colo.App. 538, 504 P2d. 681. We conclude that, in sustance, the property settlement order was fair and equitable and that the trial court intended its order to resolve attorney fees as part of its settlement of alimony and property division.
Judgment affirmed.
222 N.W.2d 435 Elaine Artis STOUWIE v Kenneth John STOUWIE
Father filed petition to modify divorce decree by changing custody of minor children from other to himself. The Mahaska District Court, Michael Enich, J., granted father's petition, and mother appealed. The Supreme Court, Reynoldson, J., held that substantial evidence supported the trial court's finding that a material change of circumstances had occurred, both at the time of filing the modification petition and at trial time, including the fact that, although the May 1969 divorce decree granted custody to the mother, the father and his second wife had had de facto custody for most of the time and had provided the children with an admittedly good home; accordingly, the trial court properly determined that the children should not be removed from what was concededly a good home to one which was untested.
Although, ordinarily, one expecting to introduce evidence of conditions occurring subsequent to the commencement of litigation will fill a supplemental pleading and amendment, failure to take those procedural steps would not prevent the court from considering all relevant facts to the point of trial in a child custody case; with the future of children at stake, the court cannot permit trial delay to confine it to a replay of a situation existing years before.
On petition of father to modify divorce decree by changing custody of minor children from other to himself, substantial evidence supported trial court's finding that a material change of circumstances had occurred, both at the time of filing the modification petition and at trial time, including the fact that, although the May 1969 divorced decree granted custody to the mother, the father and his second wife had had de facto custody for most of the time and had provided the children with an admittedly good home; accordingly, the trial court properly determined that the children should not be removed from what was concededly a good home to one which was untested.
On petition of father to modify divorce decree by changing custody of minor children from other to himself, court would not ignore the three years that the children were in the father's home pursuant to an illegal ex parte order, since there was no apparent effort by the mother's then counsel to bring to hearing her motions to dissolve the order or to try the petition for permanent custody, and since the three years included most of the children's respective lives.
At issue is custody of two children, Michelle Sue, born July 12, 1967, and Tammy Lynn, born September 27, 1968. They are children of Kenneth Stouwie and Elaine Stouwie Funk, parties to this litigation. In a divorce modification proceeding, litigation. In a divorced modification proceeding, Mahaska district court granted Kenneth's petition to transfer custody to him. Elaine appeals and we affirm.
Kenneth and Elaine were married January 29, 1966. When they were divorced May 1, 1969 custody was granted to Elaine pursuant to stipulation.
During the pre-divorced separation of these parties Kenneth began going with his present wife, Kristy. He married her on the day the divorce became final. Kristy then had custody of two children, issue of the first of her two prior marriages. Kenneth adopted these children. Another child has been born of his marriage to Kristy.
Kenneth and Kristy have moved four times during their marriage and he has changed employment three times. However, at time of trial Kenneth had held the same job for about two and one half years with Wausau Homes, Inc., at an annual salary of $12,300. For approximately the same period Kenneth, Kristy and the children had been living in an attractive 22 room rented house on a six acre tract in the country. Kenneth owned equities in a home and a commercial property in Ottumwa, Iowa. At time of the trial Kenneth was 28 and Kristy was 29.
Elaine's life was unsettled following the divorce. She also moved and changed employment several times. Usually she worked as a waitress cook or in a factory. She had a short-lived marriage to Robert Evans which lasted from February 14, 1970 until July of the same year, at which time she left him. In January 1972 she left the state for two months, traveling to Kentucky and Michigan with a construction worker.
In December of 1972 Elaine's marriage to Evans was legally terminated and in the same month she married Curtis Funk, who had been twice previously married Curtis is an over the road truck driver who earns approximately 18,000 annually. At trial time Elaine was 25 Curtis was 43, and his daughter by his first marriage, who lived with them was 19. They reside in an apartment in Knoxville, Iowa, but Elaine and Curtis testified if they obtained custody of Michelle and Tammy they would move to a home owned by Curtis near Des Moines.
Although the May 1969 divorce decree granted custody of these two children to Elaine, Kenneth and Kristy have had de facto custody for most of the time since that date. Elaine kept the children about 90 percent of the time until December 1969. From then until she married Evans in February 1970 she allowed the Stouwies to have the children 'most of the time,' apparently because she was working. While Elaine was living with Evans, Kenneth and Kristy kept Michelle and Tammy and she saw then only on visits. Elaine suggested this arrangement because the girls made Evans nervous and she feared for their safety.
Elaine asked for return of the children in August 1970, following her separation from Evans. Kenneth refused and filed a petition for modification on August 18, 1970. The same day an ex parte order was issued granting Kenneth temporary custody of Michelle and Tammy. He has retained custody since that date. Elaine has exercised visitation rights.
parte custodial order, which motion was never set for hearing. The record is clear the delay was not attributable to Kenneth or his counsel.
Substantial evidence was submitted concerning the parties' qualities as parents. Elaine and several other witnesses testified the Stouwies had provided excellent care for the children. No one disputed the record disclosing the Stouwies as a loving family providing their children a good home, religious training and education.
It was also uncontested that at time of trial Elaine and Curtis Funk had created a good home atmosphere for the children on visitations. The Funk's affection for Michelle and Tammy is reciprocated.
Evidence was introduced indicating at an earlier time Elaine failed to care for the children properly. Kenneth testified without objection several ladies who baby-sat for the children or visited Elaine's home when she had Michelle and Tammy expressed their concern to him. There was evidence (contested by Elaine) the children were usually dirty when the Stouwies received them for visitation. While under Elaine's care both children developed a rash which seems to be conceded was caused by nerves. Kenneth took them to a doctor for this condition. They also had a condition caused from dirty diapers. One child may have suffered anemia.
Throughout the period following dissolution, liberal visitations were allowed by each party having custody. Commendably, there is no hint either party has attempted to alienate the children from the other.
Trial court found there was a substantial and material change of circumstances at the time Kenneth filed the petition for modification, noting the unsettled nature of Elaine's personal life and her difficulty in her second marriage. Kenneth and Kristy were then taking good care of the children. Trial court additionally considered the circumstance that the Stouwies had continued to care for the children up to time of trial, and included it would be unwise to uproot them from a home in which they had thrived to place them in an untested situation. Kenneth was awarded permanent custody. Elaine was granted generous, specific visitation rights.
Elaine, appealing, asserts no substantial and material change of circumstances had occurred when the modification petition was filed August 18, 1970. She additionally contends the continued presence of the children in the Stouwie home for three years following that date, on the strength of an ex parte order, should not be considered evidence of a material change in circumstances.
Several rules which govern our deliberations in cases of this nature have been recently and succinctly summarized:
Our review is de novo. Although we are not bound by trial court findings we given them weight. The status of children should be quickly fixed and, thereafter, little disturbed. Siblings should not usually be separated. No hard and fast rule governs which parent should have custody. It is not a matter of reward or punishment. The issue is ultimately decided by determining under the whole record which parent can minister more effectively to the long-range best interest of the children.
In the same decision, 219 N.W.2d at 688 we abandoned the inference that the best interests of younger children are served by placing them in their mother's custody.
It is true that at one point in trial court's decision its findings of materially changed circumstances were confided to those apparent when the petition for modification was filed. Although ordinarily one expecting to introduce evidence of conditions occurring subsequent to commencement of litigation would file a supplemental pleading or an amendment failure to take those procedural steps would not, in our view, prevent the court from considering all relevant facts to point of trial in a child custody case. With the future of children at stake, the court cannot permit trial delay to confine it to a replay of a situation existing three years before.
Aside from that major consideration, we note no objection was made to questions eliciting facts after the petition was filed. Elaine also relied on certain such post-petition evidence, including her current marriage and her present capacity to provide a home for Michelle and Tammy.
Nonetheless, we believe trial court rightly found a material change of circumstances had occurred, both at time of filing the petition and at trial time.
We have already set out many of the relevant facts. Kenneth visited the children weekly when Elaine had them in her home. Uncontradicted evidence shows Elaine gave de facto custody of the children to Kenneth for substantial periods of time prior to her remarriage. She chose to live with Evans, her second husband, for four months knowing she would have to leave the children with Kenneth during that interval.
During this period prior to the filing of the petition as well as afterward, it was the Stouwies who provided the stability the children required. Following filing of the petition and prior to her third marriage Elaine visited them only irregularly. She spent two months out of state pursuing an adulterous relationship with a married male companion.
By trial time these children had been nurtured and loved in the Stouwie home for three years.
As we have already noted, we have been guided in these cases by the concenpt that custody should be quickly fixed and little disturbed. In re Marriage of Bowen, supra at 687; Jacobs v Jacobs, 216 N.W.2d 312, 314 (Iowa 1974). The court should avoid further disruption of the children's lives unless mandated by the circumstances. See Raabe V. Raabe, 191 N.W.2d 551, 553 (Iowa 1971).
We agree with trial court's determination these children should not be removed from what is conceded to be a good home to one which is untested.
Elaine's contention that we should not consider the three years Michelle and Tammy were in the Stouwie home pursuant to an illegal ex parte order appeals to a sense of fairness.
It is true we later held the type of order made here was illegal and void for lack of proper notice and hearing. Swift v Leary, 185 N.W.2d 816 (Iowa 1971).
But there was no apparent effort by Elaine's then counsel to bring to hearing her motion to dissolve the order, or to try the petition for permanent custody. Neither did Elaine seek a writ of certiorari in the court.
Such litigation delays have been noted before in our opinions. In Miller v. Miller, 202 N.W.2d 105, 113 (Iowa 1972) we said:
'One who expects to argue a change is imperative for the welfare of the children does nothing to enhance one's cause by allowing months or years to slip by without serious effort to expedite the appeal. In close cases-and most of them are-long delay may well tip the scales against uprooting children a second time.'
And in Raabe v. RAabe, 191 N.W.2d 551, 553 (Iowa) we suggested a permissible inference:
'Plaintiff's counsel neither applied for a stay order from this court nor pressed this appeal to a speedy conclusion. Under these circumstances we entertain a question of how anxious the father actually is to have the responsibility is to have the responsibility of this child.
Of course, Elaine testified her attorney during those years misinformed her about the law. It seems evident, however, that at no time prior to her marriage to Curtis Funk in December 1972 did Elaine have a stable environment withing which to receive the children. The month following that marriage she retained other counsel. She also started visitations on a more regular basis.
Elaine's argument we must ignore the three years these children were with the Stouwies under the illegal order would be persuasive, and perhaps controlling, if we were merely adjudicating parental rights. But the paramount issue must be the children's welfare. They are the only persons involved in this controversy who are wholly blameless. See In re Marriage of Bowen, supra, 219 N>W.2d at 688.
These three-now four-years for Michelle and Tammy include most of their respective lives. There is no way we can excise and discard their experiences over that interval.
These children have been and are now in a good home. Both these parties and their spouses love them, and, we believe, will continue cooperating to shelter the girls from further trauma. What we said in Eddars v. Suhr, 193 N.W.2d 113, 117 (Iowa 1971) applies with equal force here:
'We decline to take the children from an environment which we know worked to their advantage in favor of one where their experience may-or may not-be the same. We refuse to subject them to that risk.'
The decision of the district court is affirmed.
Affirmed.
Iowa 1974.
Stouwie v. Stouwie
222 N.W.2d 4235
End of Document
Colorado Court of Appeals, Div. 1.
Jean Marie Rayer, Plaintiff-Appellant,
v.
Richard S. Rayer, Defendant-Appellee
No. 72-199.
July 17, 1973. Selected for Official Publication.
The District Court, El Paso County, Patrick M. Hinton, J., awarded divorce to the wife and custody of the four children of the marriage to the husband, granted the wife reasonable rights of visitation, divided the couple's property between them and awarded alimony to the wife in gross, and the wife appealed. The Court of Appeals, Smith, J. held that the trial court had not erred in considering an investigative report made by an officer of the juvenile probation department, even though the report was that the court had not erred in engaging in an informal conference with the author of the investigative report; that the trial court had not abused its discretion in conferring with the couple's children alone and without a record being made that the evidence supported the court's award of custody to the husband; and that, in view of that award of custody and surrounding circumstances, the court's award of alimony in gross to the wife was justified.
Affirmed.
Reports and recommendations. Court did not err in considering investigative report made by officer of juvenile probation department in arriving at its decision to award custody of minor children to father after awarding divorce to mother where, although investigative report was made part of recordand had been furnished perviously to both parties, it was not formally offered and received in evidence.
Where investigative report of juvenile probation department was made part of record in divorce proceeding and had been furnished previously to both parties and considered by court in rendering its decree, wife had right, although she did not choose to exercise it, to call and examine author of report.
Where there was no indication of record or from any other source that court's discussions with author of investigative report upon which it had relied in awarding custody of minor children in divorce proceeding had exceeded bounds of propriety, such discussions did not constitute reversible error.
Presumptions. Presumption was that in makingits decision as to award of custody of minor children during divorce procedeedings, trial court disregarded any incompetent evidence or additional information to which it might have had access by virtue of alleged conversations with author of investigative report made by officer of juvenile probation department.
Custody cases are not adversary proceedings, but hearings to determine whaqt placement of child will be in the child's best interest, and determination of custody is left to discretion of trial judge.
In absence of showing of abuse of trial court's discretion, appellate court would not disturb award of custody of four minor children to husband rather than to wife on ground that court had met with children privately without presence of counsel or court.
Behavior of parties in general. Mere fact of motherhood is not sufficient to give mother in divorce proceedings any special standing or preference as to custody, and prime criterion in court's determination is welfare of children.
In general. Even though divorce was awarded to wife, evidence was sufficient to support court's award of custody of four minor children to husband.
Whether court should award periodic alimony of alimony in gross is within sound discretion of court.
Nature and purpose of spousal support; property award distinguished.
Periodic alimony is generally favored because court retains jurisdiction of matter and may later modify award, and alimony in gross will not normally be awarded unless special circumstances are present which support such award.
Where there was no indication that wife could not find employment to support herself, husband was awarded custody of children and his finanaical condition wa such that his entire income was necessary to support children, and amount awarded for alimony in gross was not inadequate, award of alimony in gross was not abuse of the court's discretion.
Where wife was awarded divorce, husband was awarded custody of four children, and husband was awarded television repair business while wife as awarded income-producing rental property as part of alimony in gross, awards did not constitute abuse of trial court's discretion.
Where record indicated that trial court intended its order dividing parties' property to include award of attorney fees as part of its settlement of alimony and property division, court did not err in failing to make separate award to wife for attorney fees.
SMITH, Judge.
On December 31, 1971, Jean Marie Rayer, plaintiff, was granted a decree of divorce from Richard S. Rayer, defendant. The court, after a hearing, awarded custody of four children to defendant and granted plaintiff reasonable rights of visitation. The court also divided property between the parties and awarded alimony in gross Plaintiff appeals asserting various allegations of error which we find to be without merit. We therefore affirm.
Plaintiff asserts initially that the court improperly utilized an investigtive report made by an officer of the Juvenile Probation Department in arriving at its decision relative to custody. While it is true that the investigative report was not formally offered and received in evidence, this does not prevent the court from considering the conclusions or recommendations contained in the report.
The investigative report was made a part of the record and had been furnished preivously to both parties. Although she did not choose to do so, plaintiff had the right to cal and examine the author of the report. See Anderson v. Anderson, Aylor v. Aylor. The court did not err in its use of the investigative report.
evidence, or additional information to which it might have had access. Vanadium Corporation v. Wesco Stores Co., 135 Colo. 77, 308 P.2d 1011.
The trial court met with the children privately without the presence of counsel or a court reporter. Plaintiff points out that 1971 Perm.Supp., C.R.S.1963, 46-1-26, provides that the court may confer with a child privately but requires that a record of the interview be made a part of the record. In the present case, the court, without objection from counsel of either party, conducted private interviews of the children and made no record of the interviews. However, the statute cited by the plaintiff was not in effect at the time of this interview, and the court will be held to the standard of the common law existing at the time the interviews took place. In the absence of the statute, the conflict becomes one between the fundamental precept of due process that a judicial decision must be based on the evidence presented in open court with adequate opportunity for each other and the pressures upon a child involved in a custody hearing when the child is called upon to state a preference. See the discussion in Rea v. Rea, 195 Or. 252, 245 P.2d 884. However, as was pointed out in Oakes v. Oakes, 45 Ill.App2d 387, 195 N.E.2d 840, a hearing on custody is distinguishable from the ordinary adversary civil proceeding. Custody cases are not adversary proceedings, but hearings to determine what placement of the child will be the the child's best interests. The trial court, who is best able to appraise the circumstances of the parties, is best fitted to make the factual determinations regarding custody. For this reason the determination of custody is left to the discretion of the trial judge. Hence, in the absence of an abuse of that discretion, we will not disturb these determinations. Wiederspahn b. Wiederspahn, 146 Colo. 214m 361 P.2d 125.
In the present case, the court announced several times its intention to interview the children without the presence of counsel or of a reporter. No timely objection was made to such procedure and it is apparent from the record that both parties were aware of the preferences of the children which the court intended to ascertain in the interviews. After the interviews had been concluded, the court specifically solicited objections to the proceeding and none were forthcoming. Counsel made no request of the court that he state the substantive content of the statement made by the children, and, in fact, the actions of plaintiff-appellant implied consent to the form of the proceedings. Therefore, in spite of the requirement of the law now in effect, an in light of the large amount of discretion given the trial court in these matters, we o not feel that any procedural error which may have inadvertently been committed by the court was of such magnitude as to require reversal on this issue
Plaintiff argues that because the court did not find the mother unfit to have custody of the children, it erred by failing to award the custody of the minor children to her. The mere fact of motherhood is not sufficient to give plaintiff any special standing in the proceeding or preference as to custody. 1967 Perm.Supp., C.R.S1963, 46-2-4(6). The prime criterion in the court's determination is the welfare of the children. Breene v. Breene, 51 Colo. 342, 117P. 1000.
Plaintiff argues that the court's findings of fact are not sufficient to support the custody award under Cacic v Cacic, 164 Colo. 103, 432 P.2d 768. In that case the court made no findings nor gave any explanation to support its award of custody to their father. In the present case, the court found from the bench at the end of the hearing that the best interests of the children would be served by awarding the children to the defendant, and in so doing explained the facts and reasons upon which it based its decision. This is sufficient to meet the requirements of Cacic.
The court awarded alimony in gross to plaintiff. This is asserted to be error by plaintiff for the reason that she feels that the amount was inadequate an that the court should have retained jurisdiction to modify its alimony award. Whether the court should award periodic alimony or alimony in gross is within the sound discretion of the court. Carlson v. Carlson, Colo,m P.2d 1006. Periodic alimony is generally favored because the court retains jurisdiction of the matter an may later modify the award. Alimony in gross will not normally be aware unless special circumstances are present which support such award. Carlson, supra. In the present case the wife does not have custody of the children. There is no indication that the wife cannot find employment and support herself. In addition, the financial condition of defendant was such that because of his additional burden of the children his entire income was necessary to support the children, an and award in gross obviated the necessity of encumbering his earning capacity. The amount awarded for alimony was not so grossly inadequate, in our opinion, as to constitute an abuse of discretion.
Plaintiff complains that the court inequitably divided property between the parties. The basis of this claim is the failure of the court to determine a value of the defendant husband's television repair business. The record discloses that the sole assets of the business were the tools necessary to repair television sets and a certain inventory of sets to be repaired or sets to sold, many on consignment. The defendant's testimony supported the conclusion of the trial court that he would need the entire income from his business to support himself and the children. Defendant was awarded his business with its income producing potential, and plaintiff was awarded income producing potential, and plaintiff was awarded income producing rental property. This disparity in values awarded to the parties is not great, particularly in light of the continuing additional responsibility of the defendant father who retained custody of the four minor children of the parties. The division of property in a divorce proceeding again is a matter resting within the sound discretion of the trial court. Hyde v. Hyde, 169 Colo. 403, 457 P2d. 393. We find no abuse of that discretion.
Finally, plaintiff claims that it was error for the trial court to not have awarded attorney fees to her. The allowance of attorney fees was considered by the court in conjunction with matters of property settlement, and the issue must therefore depend upon whether the record reflects that the property settlement order contemplated attorney fees and whether as a whole it was fair and equitable. Krall v. Krall, 31 Colo.App. 538, 504 P2d. 681. We conclude that, in sustance, the property settlement order was fair and equitable and that the trial court intended its order to resolve attorney fees as part of its settlement of alimony and property division.
Judgment affirmed.
222 N.W.2d 435 Elaine Artis STOUWIE v Kenneth John STOUWIE
Father filed petition to modify divorce decree by changing custody of minor children from other to himself. The Mahaska District Court, Michael Enich, J., granted father's petition, and mother appealed. The Supreme Court, Reynoldson, J., held that substantial evidence supported the trial court's finding that a material change of circumstances had occurred, both at the time of filing the modification petition and at trial time, including the fact that, although the May 1969 divorce decree granted custody to the mother, the father and his second wife had had de facto custody for most of the time and had provided the children with an admittedly good home; accordingly, the trial court properly determined that the children should not be removed from what was concededly a good home to one which was untested.
Although, ordinarily, one expecting to introduce evidence of conditions occurring subsequent to the commencement of litigation will fill a supplemental pleading and amendment, failure to take those procedural steps would not prevent the court from considering all relevant facts to the point of trial in a child custody case; with the future of children at stake, the court cannot permit trial delay to confine it to a replay of a situation existing years before.
On petition of father to modify divorce decree by changing custody of minor children from other to himself, substantial evidence supported trial court's finding that a material change of circumstances had occurred, both at the time of filing the modification petition and at trial time, including the fact that, although the May 1969 divorced decree granted custody to the mother, the father and his second wife had had de facto custody for most of the time and had provided the children with an admittedly good home; accordingly, the trial court properly determined that the children should not be removed from what was concededly a good home to one which was untested.
On petition of father to modify divorce decree by changing custody of minor children from other to himself, court would not ignore the three years that the children were in the father's home pursuant to an illegal ex parte order, since there was no apparent effort by the mother's then counsel to bring to hearing her motions to dissolve the order or to try the petition for permanent custody, and since the three years included most of the children's respective lives.
At issue is custody of two children, Michelle Sue, born July 12, 1967, and Tammy Lynn, born September 27, 1968. They are children of Kenneth Stouwie and Elaine Stouwie Funk, parties to this litigation. In a divorce modification proceeding, litigation. In a divorced modification proceeding, Mahaska district court granted Kenneth's petition to transfer custody to him. Elaine appeals and we affirm.
Kenneth and Elaine were married January 29, 1966. When they were divorced May 1, 1969 custody was granted to Elaine pursuant to stipulation.
During the pre-divorced separation of these parties Kenneth began going with his present wife, Kristy. He married her on the day the divorce became final. Kristy then had custody of two children, issue of the first of her two prior marriages. Kenneth adopted these children. Another child has been born of his marriage to Kristy.
Kenneth and Kristy have moved four times during their marriage and he has changed employment three times. However, at time of trial Kenneth had held the same job for about two and one half years with Wausau Homes, Inc., at an annual salary of $12,300. For approximately the same period Kenneth, Kristy and the children had been living in an attractive 22 room rented house on a six acre tract in the country. Kenneth owned equities in a home and a commercial property in Ottumwa, Iowa. At time of the trial Kenneth was 28 and Kristy was 29.
Elaine's life was unsettled following the divorce. She also moved and changed employment several times. Usually she worked as a waitress cook or in a factory. She had a short-lived marriage to Robert Evans which lasted from February 14, 1970 until July of the same year, at which time she left him. In January 1972 she left the state for two months, traveling to Kentucky and Michigan with a construction worker.
In December of 1972 Elaine's marriage to Evans was legally terminated and in the same month she married Curtis Funk, who had been twice previously married Curtis is an over the road truck driver who earns approximately 18,000 annually. At trial time Elaine was 25 Curtis was 43, and his daughter by his first marriage, who lived with them was 19. They reside in an apartment in Knoxville, Iowa, but Elaine and Curtis testified if they obtained custody of Michelle and Tammy they would move to a home owned by Curtis near Des Moines.
Although the May 1969 divorce decree granted custody of these two children to Elaine, Kenneth and Kristy have had de facto custody for most of the time since that date. Elaine kept the children about 90 percent of the time until December 1969. From then until she married Evans in February 1970 she allowed the Stouwies to have the children 'most of the time,' apparently because she was working. While Elaine was living with Evans, Kenneth and Kristy kept Michelle and Tammy and she saw then only on visits. Elaine suggested this arrangement because the girls made Evans nervous and she feared for their safety.
Elaine asked for return of the children in August 1970, following her separation from Evans. Kenneth refused and filed a petition for modification on August 18, 1970. The same day an ex parte order was issued granting Kenneth temporary custody of Michelle and Tammy. He has retained custody since that date. Elaine has exercised visitation rights.
parte custodial order, which motion was never set for hearing. The record is clear the delay was not attributable to Kenneth or his counsel.
Substantial evidence was submitted concerning the parties' qualities as parents. Elaine and several other witnesses testified the Stouwies had provided excellent care for the children. No one disputed the record disclosing the Stouwies as a loving family providing their children a good home, religious training and education.
It was also uncontested that at time of trial Elaine and Curtis Funk had created a good home atmosphere for the children on visitations. The Funk's affection for Michelle and Tammy is reciprocated.
Evidence was introduced indicating at an earlier time Elaine failed to care for the children properly. Kenneth testified without objection several ladies who baby-sat for the children or visited Elaine's home when she had Michelle and Tammy expressed their concern to him. There was evidence (contested by Elaine) the children were usually dirty when the Stouwies received them for visitation. While under Elaine's care both children developed a rash which seems to be conceded was caused by nerves. Kenneth took them to a doctor for this condition. They also had a condition caused from dirty diapers. One child may have suffered anemia.
Throughout the period following dissolution, liberal visitations were allowed by each party having custody. Commendably, there is no hint either party has attempted to alienate the children from the other.
Trial court found there was a substantial and material change of circumstances at the time Kenneth filed the petition for modification, noting the unsettled nature of Elaine's personal life and her difficulty in her second marriage. Kenneth and Kristy were then taking good care of the children. Trial court additionally considered the circumstance that the Stouwies had continued to care for the children up to time of trial, and included it would be unwise to uproot them from a home in which they had thrived to place them in an untested situation. Kenneth was awarded permanent custody. Elaine was granted generous, specific visitation rights.
Elaine, appealing, asserts no substantial and material change of circumstances had occurred when the modification petition was filed August 18, 1970. She additionally contends the continued presence of the children in the Stouwie home for three years following that date, on the strength of an ex parte order, should not be considered evidence of a material change in circumstances.
Several rules which govern our deliberations in cases of this nature have been recently and succinctly summarized:
Our review is de novo. Although we are not bound by trial court findings we given them weight. The status of children should be quickly fixed and, thereafter, little disturbed. Siblings should not usually be separated. No hard and fast rule governs which parent should have custody. It is not a matter of reward or punishment. The issue is ultimately decided by determining under the whole record which parent can minister more effectively to the long-range best interest of the children.
In the same decision, 219 N.W.2d at 688 we abandoned the inference that the best interests of younger children are served by placing them in their mother's custody.
It is true that at one point in trial court's decision its findings of materially changed circumstances were confided to those apparent when the petition for modification was filed. Although ordinarily one expecting to introduce evidence of conditions occurring subsequent to commencement of litigation would file a supplemental pleading or an amendment failure to take those procedural steps would not, in our view, prevent the court from considering all relevant facts to point of trial in a child custody case. With the future of children at stake, the court cannot permit trial delay to confine it to a replay of a situation existing three years before.
Aside from that major consideration, we note no objection was made to questions eliciting facts after the petition was filed. Elaine also relied on certain such post-petition evidence, including her current marriage and her present capacity to provide a home for Michelle and Tammy.
Nonetheless, we believe trial court rightly found a material change of circumstances had occurred, both at time of filing the petition and at trial time.
We have already set out many of the relevant facts. Kenneth visited the children weekly when Elaine had them in her home. Uncontradicted evidence shows Elaine gave de facto custody of the children to Kenneth for substantial periods of time prior to her remarriage. She chose to live with Evans, her second husband, for four months knowing she would have to leave the children with Kenneth during that interval.
During this period prior to the filing of the petition as well as afterward, it was the Stouwies who provided the stability the children required. Following filing of the petition and prior to her third marriage Elaine visited them only irregularly. She spent two months out of state pursuing an adulterous relationship with a married male companion.
By trial time these children had been nurtured and loved in the Stouwie home for three years.
As we have already noted, we have been guided in these cases by the concenpt that custody should be quickly fixed and little disturbed. In re Marriage of Bowen, supra at 687; Jacobs v Jacobs, 216 N.W.2d 312, 314 (Iowa 1974). The court should avoid further disruption of the children's lives unless mandated by the circumstances. See Raabe V. Raabe, 191 N.W.2d 551, 553 (Iowa 1971).
We agree with trial court's determination these children should not be removed from what is conceded to be a good home to one which is untested.
Elaine's contention that we should not consider the three years Michelle and Tammy were in the Stouwie home pursuant to an illegal ex parte order appeals to a sense of fairness.
It is true we later held the type of order made here was illegal and void for lack of proper notice and hearing. Swift v Leary, 185 N.W.2d 816 (Iowa 1971).
But there was no apparent effort by Elaine's then counsel to bring to hearing her motion to dissolve the order, or to try the petition for permanent custody. Neither did Elaine seek a writ of certiorari in the court.
Such litigation delays have been noted before in our opinions. In Miller v. Miller, 202 N.W.2d 105, 113 (Iowa 1972) we said:
'One who expects to argue a change is imperative for the welfare of the children does nothing to enhance one's cause by allowing months or years to slip by without serious effort to expedite the appeal. In close cases-and most of them are-long delay may well tip the scales against uprooting children a second time.'
And in Raabe v. RAabe, 191 N.W.2d 551, 553 (Iowa) we suggested a permissible inference:
'Plaintiff's counsel neither applied for a stay order from this court nor pressed this appeal to a speedy conclusion. Under these circumstances we entertain a question of how anxious the father actually is to have the responsibility is to have the responsibility of this child.
Of course, Elaine testified her attorney during those years misinformed her about the law. It seems evident, however, that at no time prior to her marriage to Curtis Funk in December 1972 did Elaine have a stable environment withing which to receive the children. The month following that marriage she retained other counsel. She also started visitations on a more regular basis.
Elaine's argument we must ignore the three years these children were with the Stouwies under the illegal order would be persuasive, and perhaps controlling, if we were merely adjudicating parental rights. But the paramount issue must be the children's welfare. They are the only persons involved in this controversy who are wholly blameless. See In re Marriage of Bowen, supra, 219 N>W.2d at 688.
These three-now four-years for Michelle and Tammy include most of their respective lives. There is no way we can excise and discard their experiences over that interval.
These children have been and are now in a good home. Both these parties and their spouses love them, and, we believe, will continue cooperating to shelter the girls from further trauma. What we said in Eddars v. Suhr, 193 N.W.2d 113, 117 (Iowa 1971) applies with equal force here:
'We decline to take the children from an environment which we know worked to their advantage in favor of one where their experience may-or may not-be the same. We refuse to subject them to that risk.'
The decision of the district court is affirmed.
Affirmed.
Iowa 1974.
Stouwie v. Stouwie
222 N.W.2d 4235
End of Document
