Coulter v. Coulter

• Decision Date: 14 December 1959
• Docket Number: No. 18649,18649
• Citation: 347 P.2d 492,141 Colo. 237
• Parties: Frances M. COULTER, Plaintiff in Error, v. David F. COULTER, Defendant in Error.
• Court: Colorado Supreme Court

Page 492

347 P.2d 492

141 Colo. 237

Frances M. COULTER, Plaintiff in Error, v. David F. COULTER, Defendant in Error.

No. 18649.

Supreme Court of Colorado, En Banc.

Dec. 14, 1959.

Greenberg & Yoelin, Denver, for plaintiff in error.

T. Lee Witcher, Canon City, for defendant in error.

DOYLE, Justice.

The matter here presented for review concerns an order of the district court denying a petition for modification of the award of custody of a minor child made in a 1952 divorce decree 'subject to the further order of the court.' The plaintiff in error here was the wife, defendant in the divorce action, and petitioner in the trial court. She seeks reversal of the order denying her petition. Defendant in error was the plaintiff in the original divorce action.

The interlocutory decree of divorce was granted to the plaintiff-husband on May 31, 1952. Its pertinent provision reads:

'* * * It is further

'Ordered, Adjudged and Decreed, that the sole care, custody and control of the minor child, Namely: Roderick James Coulter is hereby awarded to The mother of the plaintiff herein, Mrs. Marion G. Coulter until the further order of this Court.'

Mrs. Coulter and her husband are 53 years of age and were shown by the evidence to have had a family of six children, one of whom although grown is still at home. She has had custody of the child since he was a baby, following the separation of the plaintiff and defendant on December 1, 1951.

During their brief marriage the plaintiff and defendant had lived in Canon City, but when the separation occurred defendant moved to Denver, taking the child with her. Her testimony shows that she had no place to keep the child--that she was then only 18 years of age, was living with her sister in Denver and working as a waitress. She voluntarily delivered custody of the child to her mother-in-law and shortly afterwards a stipulation was entered into in which defendant agreed to such custody arrangement until the further order of the court.

As a justification for this relinquishment, defendant testified that plaintiff had failed to provide support, that she was then in ill health, was impoverished and was mentally and emotionally upset to the extent that her judgment was impaired.

At the time of the hearing she had been remarried for four years. She had seen the child at irregular intervals during the seven year period he was in the custody of Mrs. Coulter. Normally she visited him once every three months and states the reason for the infrequency of her visits was that she was required to travel to Canon City. During one Christmas holiday period the child visited in her home.

The basis for her present petition is that she is now remarried to a man who is in business, and she is now financially able to care for the child; has an adequate and stable home and is in a position to devote her full attention to the child.

The record is remarkably free of disputed facts. The defendant readily concedes that the child has been and is now receiving proper care and training; that the home now provided by the grandparents is a proper one. There is no suggestion that the child has not or is not now responding in his present environment. As we understand defendant's position, it is that she is capable of providing similar environmental comforts and imluences and, in addition, can furnish a mother's love and attention. The record is also free of evidence indicating personal rancor, so often present in controversies of this kind. The only rift arises from the claim of defendant that she has not had free visitation access to the child. On some occasions the child has not been present, according to her testimony, when she arrived, and her visits have been discouraged. This was denied by Mr. and Mrs. Coulter.

The trial court's denial of defendant's petition was based mainly on its conclusion that the grant of custody to the grandparents was intended to be more or less permanent in nature. The court also seemed to be persuaded by the fact that the defendant's remarriage had occurred some four years prior to the filing of the petition, during which time she had failed to make any effort to effect a change in custody. The court finally concluded:

'And it is the opinion of the Court that this situation that we find ourselves in now with respect to the care and custody of this child, the agreement in connection with which she was given custody of the child, is such that it overcomes the strict rule of law as laid down by the Courts, that it is an exception and supersedes the strict rule of law, and that the circumstances are such, the evidence is such, that I can't come to the conclusion or the belief that it would be for the best interests of this child to change or modify the decree.

'I think the petition, the evidence fails to support the petition, and the evidence of the plaintiff in this case takes it out of the strict legal rule, and that it is for the best interest of this child that this petition be denied, and is denied.'

In support of her demand for reversal, defendant relies on the following cases: Wilson v. Mitchell, 48 Colo. 454, 111 P. 21, 30 L.R.A.,N.S., 507; Averch v. Averch, 104 Colo. 365, 90 P.2d 962; Fouts v. Pedrick, 111 Colo. 141, 137 P.2d 1019; Emerson v. Emerson, 117 Colo. 384, 188 P.2d 252; Phillips v. Christensen, 121 Colo. 380, 216 P.2d 659.

It is true that Wilson v. Mitchell, supra [48 Colo. 454, 111 P. 26], which has been consistently cited with approval in subsequent cases, upheld the right of the natural mother to custody as against the paternal grandparents and announced that a...