Aylor v. Aylor
| Decision Date | 14 December 1970 |
| Docket Number | No. 24428,24428 |
| Citation | 478 P.2d 302,173 Colo. 294 |
| Parties | William Ray AYLOR, Plaintiff in Error, v. Bonita Elizabeth AYLOR, Defendant in Error. |
| Court | Colorado Supreme Court |
James E. Fairchild, Jr., Denver, Blaise J. Jacobucci, Brighton, for plaintiff in error.
No appearance for defendant in error.
On December 27, 1967, the trial court entered a decree of divorce dissolving the marriage of the parties and awarding custody of the two minor children to the father who is the plaintiff in error. The mother of the children is the defendant in error.
This case is here on a Writ of Error directed to a subsequent custodial order awarding the custody of the children to the mother.
The children, at the time of the divorce, were awarded to the father with visitation rights in the mother. The mother was working at the time and was not able to provide a home for the children, whereas the father and his mother had a suitable home.
The mother thereafter remarried, established a home and petitioned the court for the children's custody on the basis of that change in her circumstances. The court, after a series of hearings, awarded the custody of the children to the mother and it is this order which the father seeks to reverse.
In his motion for new trial and here the father sets forth twelve alleged errors. For purposes of discussion, several assignments of error will be consolidated and others will be treated individually and some disposed of without comment. We find no error which is sufficient to justify a reversal.
Several errors challenge the sufficiency of the evidence to support the court's finding of a sufficient change in circumstances to justify taking the custody of the children from the father and awarding it to the mother. In regard to this argument, it is only necessary to show a change of circumstances or new facts which were not in existence at the time of the prior order. The new family situation of the wife is sufficient to justify a change of custody, providing always that the interest and welfare of the children is the primary and controlling consideration of the court in ordering the change of custody. Searle v. Searle, 115 Colo. 266, 172 P.2d 837; Averch v. Averch, 104 Colo. 365, 90 P.2d 962.
A review of the record discloses sufficient evidence to show not only the changed circumstances, but, also, that the change in custody was in the best interests of the children.
The father questions the trial court's characterization of all custody orders as 'interlocutory.' An award of custody is a final order and appealable, but the court retains jurisdiction of the children for the very purpose of being able to make such custody orders as will best serve the interests of the children. See C.R.S.1963, 46--1--5(4). We perceive no error in the court's characterization of his orders. As a matter of law the father could have appealed any Final order regardless of the label placed upon it by the court.
The father challenges the constitutionality of 1969 Perm.Supp., 1963 C.R.S. 46--1--5(7), on its face and as it was applied in the instant case. Subsection (7) reads:
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