Marriage of Francis, In re

• Decision Date: 03 June 1996
• Docket Number: No. 94SC538,94SC538
• Citation: 919 P.2d 776
• Parties: In Re the MARRIAGE OF Joanna Krystyna FRANCIS, now known as Joanna Krystyna Chobot, Petitioner, and Steven G. Francis, Respondent.
• Court: Colorado Supreme Court

Page 776

919 P.2d 776

In Re the MARRIAGE OF Joanna Krystyna FRANCIS, now known as

Joanna Krystyna Chobot, Petitioner,

and

Steven G. Francis, Respondent.

No. 94SC538.

Supreme Court of Colorado,

En Banc.

June 3, 1996.

Rehearing Denied July 29, 1996.

Lang, Pauly & Gregerson, Ltd., Susan M. Lach, Minneapolis, Minnesota, for Petitioner.

Holland & Hart, Stephen G. Masciocchi, Frederick G. Meyer, Denver, for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

We granted certiorari in In re Marriage of Francis, 892 P.2d 359 (Colo.App.1994), on the following issue:

Did the trial court adopt the correct legal standards and properly apply them to the facts in entering its order of July 5, 1993, concerning custody and visitation; in particular, and without limitation, did the trial court adopt and properly apply the correct legal standards in ordering a change of custody of the four younger children from sole custody in the mother to joint custody, including a change in residential custody, in the event the mother decides "to attend schooling outside the State of Colorado?" ¹

We conclude that when a trial court considers modification of a sole custody decree that would result in changing the residential custody of the child, the court must apply the "endangerment standard" as set forth in section 14-10-131, 6B C.R.S. (1987). We further conclude that when the court is considering a removal motion that involves a change in the residential custody of the children, it must similarly apply section 14-10-131. We cannot determine whether the trial court analyzed the evidence under these stricter standards. We therefore reverse the court of appeals, with directions to remand to the trial court for reconsideration and rehearing of the appropriate pending motions under the proper standard.

I.

The marriage of Joanna Krystyna Chobot, the petitioner, and Steven G. Francis, the respondent, was dissolved on May 30, 1992. The parties stipulated in a separation agreement that Chobot would have sole custody of the parties' five minor children, who at that time ranged in age from four to fourteen. Francis was to have parenting time as specified in the separation agreement.

At the time of entry of the dissolution decree, the parties had lived in Fort Collins, Colorado for all of the children's lives. The separation agreement included a provision documenting their intent that: "it is in the best interests of the children to have continued interaction with both parents in the Fort Collins area. The parties make the statement knowing that Respondent (Mother) presently intends to go to school outside of the Fort Collins area...."

In March of 1993, Chobot was accepted into a two year program at a physician's assistant's school on Long Island, New York. She had applied to numerous other programs, but was accepted only at the program in New York. At no time during the initial dissolution proceedings or in the hearings relating to the move to New York was the appropriateness of Chobot's decision to pursue physician's assistant's training questioned. ²

When Francis learned of Chobot's intent to attend the New York program, he filed a motion for modification of custody seeking a change in the custody of all five children from sole custody in Chobot either to joint custody or to sole custody vested in him. He also filed a motion to prohibit Chobot from removing the children from the state. Chobot filed a motion to amend the visitation schedule to accommodate the prospective move. The trial court held a three day hearing on the pending motions during which evidence was introduced from numerous witnesses both in person and by deposition. On July 5, 1993, the trial court ruled that Chobot was restrained from removing the children from Colorado; and that if Chobot chose to attend schooling outside the state, custody of the four younger children would be modified from sole to joint with residential custody vesting in Francis. If Chobot chose to remain in the Fort Collins area, then sole custody of the four youngest children would remain vested in her. The trial court modified custody of the oldest child from sole to joint irrespective of any pending move.

Chobot appealed the trial court ruling to the Colorado Court of Appeals where it was affirmed. The court of appeals determined that In re Marriage of Wall, 868 P.2d 387 (Colo.1994) (Wall II ), aff'g, In re Marriage of Wall, 851 P.2d 224 (Colo.App.1992) (Wall I ), required the trial court to apply the "best interests" standard enunciated in section 14-10-131.5(1), 6B C.R.S. (1987), when considering a change from sole to joint custody; and that the trial court in this case applied the standard appropriately and should therefore be affirmed. Judge Ney dissented on the grounds that Wall II did not involve a change in residential custody. He contended that a change of residential custody should invoke the stricter "endangerment" standard of section 14-10-131, 6B C.R.S. (1987).

We granted certiorari to determine: 1) what standard a trial court should apply when ruling upon a motion for change of custody from sole to joint that involves a change in the child's residential custody; 2) what standard applies in a removal situation that could result in a change of the primary residential custodian; and 3) whether the trial court in this case applied the standards correctly.

II.

The tension presented by the law applicable to this case arises out of the differences between two legal standards. The first standard appears in section 14-10-131, 6B C.R.S. (1987), under the caption "Modification of sole custody." It is referred to as the "endangerment standard" and it reads as follows:

The court shall not modify a prior custody decree granting custody to one party unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. In applying these standards, the court shall retain the custodian established by the prior decree unless:

(a) The custodian agrees to the modification;

(b) The child has been integrated into the family of the petitioner with the consent of the custodian; or

(c) The child's present environment endangers his physical health or significantly impairs his emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

§ 14-10-131, 6B C.R.S. (1987).

The second standard is referred to as the "best interests standard." It appears in section 14-10-131.5, 6B C.R.S. (1987), under the caption "Joint custody modification--termination":

(1) [A]n award of joint custody may be modified or terminated upon motion of one or both parties or on the court's own motion, if such modification or termination is in the best interests of the child, as specified in 14-10-124(1.5), and the harm likely to be caused by the change of environment is outweighed by the advantage of such change to the child. The court shall also take into account the pattern of involvement of the parties with the child.

. . . . .

(4) Any order awarding custody of a minor child entered by a court of this state or any order of a court in another state which is enforceable by a court of this state pursuant to 14-10-123 may be modified from sole custody to joint custody at any time pursuant to this section.

§ 14-10-131.5(1) & (4), 6B C.R.S. (1987).

Hence, one statute contemplates that a trial court shall examine only the best interests of the child in changing custody. The other mandates that the court determine whether the child would be endangered by remaining with the custodial parent before granting a change of custody. The titles of the two statutes imply that when the trial court is considering modification of a sole custody decree, it is to apply the endangerment standard; but when it is considering modification of a joint custody decree, it is to apply the best interests standard. However, the last sentence of section 14-10-131.5 appears to indicate that sole custody may also be modified to joint custody under the terms of the best interests standard.

Petitioner Chobot argues that the trial court improperly applied the best interests standard to the facts of this case in concluding that it would be in the children's best interests to remain in Fort Collins. She contends that when a change in a child's principal residential custody is at issue, the appropriate standard is the endangerment standard and that there was no evidence in the record that the children's placement in their mother's sole custody was endangering them.

Respondent Francis contends that the appropriate standard to be applied when the pending issue is a change from sole to joint custody is the best interests standard. Francis further contends that the trial court made findings in its order under both standards: first, that the children's best interests would be served by remaining in the Fort Collins area; and second, that a move to New York "would be the creation of an environment which could significantly impair their emotional development."

We conclude that the public policy and legislative history underlying the two different standards require courts to focus on the practical impact of a custodial order upon the children, not just the legal consequences. In this case the practical effect of the trial court's orders was to change the children's residential custody from one parent to the other, contingent upon the happening of a future event: to wit, the mother's move to New York. Therefore, the trial court was required to apply the endangerment standard in evaluating the motions before it.

III.

The threshold issue presented to the trial court was whether Chobot should be permitted to remove the children to New York. However...