Marriage of Finer, In re, 94CA1562

• Decision Date: 22 February 1996
• Docket Number: No. 94CA1562,94CA1562
• Citation: 920 P.2d 325
• Parties: In re the MARRIAGE OF Carol Linton FINER, Appellant, and Joseph P. Finer, Appellee. . I
• Court: Colorado Court of Appeals

Page 325

920 P.2d 325

In re the MARRIAGE OF Carol Linton FINER, Appellant,

and

Joseph P. Finer, Appellee.

No. 94CA1562.

Colorado Court of Appeals,

Div. I.

Feb. 22, 1996.

As Modified on Denial of Rehearing

May 16, 1996.

Quade, Fonata & Bonin, P.C., Barbara Quade, A. Elizabeth Henson, Denver, for Appellant.

Cox, Mustain-Wood & Walker, Mary Jane Truesdell Cox, Littleton, for Appellee.

Opinion by Judge CRISWELL.

Carol Linton Finer (wife) appeals from the permanent orders entered in conjunction with the decree dissolving her marriage to Joseph P. Finer (husband). We affirm in part, reverse in part, and remand with directions.

The parties, who were married in 1987 and separated in 1992, have one child. Temporary sole custody of the child was granted to wife, but after two custody evaluations were performed, husband was awarded permanent sole custody.

Wife was a homemaker during the marriage, but planned to resume her premarital teaching career after the dissolution. At the time of the hearing before the trial court, she was contemplating taking a position on the east coast.

Consequently, the trial court's orders contained alternatives with respect to parenting time, child support, and maintenance to address wife's possible move out of state or, on the other hand, her continued residence in Colorado. However, because wife ultimately moved out of state, any error with respect to the alternative order has been rendered moot. Similarly, the issue respecting the order for payment of private school tuition is also moot because husband enrolled the child in public school. See In re Marriage of Hartley, 886 P.2d 665 (Colo.1994) (courts will not render opinions on issues that have become moot because of later events). Thus, we limit our review to the orders applicable to wife in the event of her move outside Colorado.

I. CUSTODY AND VISITATION

A.

Wife first contends that, because the trial court failed to make a specific finding that the award of sole custody to husband was in the child's best interests, its findings do not support the custody determination. We disagree.

The best interests of the child dictate the outcome of any custody dispute. In re Marriage of Lester, 791 P.2d 1244 (Colo.App.1990). To determine what constitutes the best interests of a child, the court must look to all relevant factors, including the thirteen statutory factors listed in § 14-10-124(1.5), C.R.S. (1987 Repl.Vol. 6B). In re Marriage of Hartley, supra. Although specific findings as to each factor need not be made, the findings must be sufficient to allow the reviewing court to determine that the decision is supported by competent evidence. In re Marriage of Dickman, 670 P.2d 20 (Colo.App.1983).

Here, in its lengthy permanent orders, the trial court initially recognized that one of the issues presented to it was a "[d]etermination of what is in the best interest of the minor child pursuant to C.R.S. § 14-10-124...." It then made numerous findings relating to the statutorily relevant factors. The court found, inter alia, that wife was unable to read her child's needs accurately; that husband was able to foster the sharing of love, affection, and contact between the child and wife, while wife had tended to alienate her daughter from husband; and that husband could, more so than wife, allow the child to develop her own personality and needs separate from husband's needs. Additionally, the court found that the parties had a very acrimonious relationship and were unable to communicate or agree on issues involving the child.

Although the trial court did not specifically state that the award to husband of sole custody was in the child's best interests, it did recognize the need for resolving the issue of the child's best interests. And, it coupled this acknowledgment with findings addressing the relevant statutory factors involved in determining the best interests of a child. Implicit in the court's discussion and findings is a determination that award of sole custody to father would be in the child's best interests. And, because there is competent evidence to support the custody determination, including a custody evaluation and recommendation of the guardian ad litem (GAL) favorable to husband, we will not disturb it on review. See In re Marriage of Rinow, 624 P.2d 365 (Colo.App.1981).

B.

Next, wife contends that, because the trial court order unreasonably limited her parenting time, it constituted an abuse of discretion. We agree.

The determination of parenting time is a matter within the sound discretion of the trial court, taking into consideration the child's best interests and the policy of encouraging a parent-child relationship. In re Marriage of Velasquez, 773 P.2d 635 (Colo.App.1989). Reasonable parenting time is mandated unless the court finds that it would endanger the child's physical health or significantly impair the child's emotional development. Section 14-10-129(1), C.R.S. (1995 Cum.Supp.).

Here, the trial court's order provides that, after May 1995, wife will have parenting time with the child only for one week at Christmas and four weeks each summer. Given wife's extensive time spent with the child prior to the entry of permanent orders, we conclude that such limited parenting time is unreasonable. See In re Marriage of Velasquez, supra. Indeed, even husband concedes that additional parenting time might be appropriate during the school year. We do not limit the court's authority to increase parenting time only in this manner; we do agree, however, that a remand to the trial court for reconsideration of this issue is necessary.

C.

Wife's final contention regarding custody is that the trial court abused its discretion in ordering that the GAL continue, for an indefinite time into the future, his involvement in this case. As part of the order continuing the GAL's appointment, the trial court required the parties to confer with him before seeking any further relief from the court. Given the circumstances here, we agree that the court erred in entering such orders.

There may exist some question whether the statutes governing marriage dissolutions authorize the court to continue a GAL's appointment beyond the entry of a final decree (and during any appellate proceedings relating thereto). The several statutes governing GAL appointments contain varying provisions and the authority of a court with respect to continuing such appointments may vary accordingly. See In Interest of A.R.W., 903 P.2d 10 (Colo.App.1994).

In People in Interest of M.C.P., 768 P.2d 1253 (Colo.App.1988), it was held that, in dependency and neglect proceedings, see § 19-3-203, C.R.S. (1995 Cum.Supp.), a GAL's appointment normally continues, absent special circumstances, until a final decree of adoption is entered or the juvenile court's jurisdiction is terminated.

In In Interest of A.R.W., supra, a division of this court held that, absent special circumstances, there was no authority under the Uniform Parentage Act, see § 19-4-110, C.R.S. (1995 Cum.Supp.), to continue a GAL's appointment beyond the entry of a final paternity decree and orders respecting custody, support, and parenting time.

Under the dissolution statute, § 14-10-116, C.R.S. (1995 Cum.Supp.), the GAL is to represent the interests of the minor child "with respect to custody, support, and parenting time." Hence, the purpose of a GAL in a dissolution proceeding in which, as here, custody is in dispute "is to determine and recommend those available alternatives which are in the best interests of the child." In re Marriage of Barnthouse, 765 P.2d 610, 612 (Colo.App.1988), cert. denied, 490 U.S. 1021, 109 S.Ct. 1747, 104 L.Ed.2d 184 (1989).

Here, the GAL has accomplished that purpose. During the course of the proceedings in the trial court, he made specific recommendations with respect to various issues involving the child's interests, and the court considered those recommendations in entering its orders. And, to the extent that the GAL's appointment was continued for purposes of this appeal and for any reconsideration of any such issues that this court may require, no party questions the validity of the order continuing his appointment.

However, it appears that the reason for the court's indefinite continuance of the GAL's appointment here was the parties' present perceived inability to communicate with one another. On its face, the court's order would seem to require the GAL to act as a mediator between them and to compel a fee-incurring consultation with the GAL before either party may apply to the court for further relief.

We will assume, arguendo, that a dissolution court, given extraordinary circumstances, may authorize a GAL to continue in office beyond the entry of final orders, so long as the purpose of that continuing appointment is to allow the GAL to perform his or her proper statutory functions. And, we have no doubt but that, if either party seeks to modify any permanent orders that relate to custody, support, or parenting time, the court may authorize the re-appointment of a GAL.

Here, however, the mere present inability of the parties to communicate is not a sufficient ground to continue the appointment of the GAL so that he may act as a mediator or facilitator for them. At least within the circumstances of this case, that is not a proper function of a GAL. We conclude, therefore, that the trial court abused its discretion in continuing the GAL's appointment indefinitely for this purpose.

II. CHILD SUPPORT AND FINANCIAL ISSUES

A.

Wife contends that, for purposes of computing child support, it was error to exclude from husband's monthly gross income his commissions and bonuses. Under the circumstances, we perceive no error.

We recognize that § 14-10-115(7)(a)(I)(A), C.R.S. (1995 Cum.Supp.) specifically includes bonuses and commissions in the definition of gross income used to calculate child support. However, here, the trial court made a factual finding, which...