Marriage of Wall, In re

• Decision Date: 07 February 1994
• Docket Number: No. 93SC001,93SC001
• Citation: 868 P.2d 387
• Parties: In re the MARRIAGE OF Frank N. WALL, Petitioner, and Karen S. Wall, Respondent.
• Court: Colorado Supreme Court

Page 387

868 P.2d 387

In re the MARRIAGE OF Frank N. WALL, Petitioner and Karen S. Wall, Respondent.

No. 93SC001.

Supreme Court of Colorado En Banc.

Feb. 7, 1994.

Susan J. Dycus, Denver, for petitioner.

John C. Schaefer, Denver, for respondent.

Justice SCOTT delivered the Opinion of the Court.

We granted certiorari to review the decision of the court of appeals in the case In re the Marriage of Karen S. Wall and Frank N. Wall, 851 P.2d 224 (1992). In that case the court of appeals held that a motion by a non-custodial parent seeking a modification from sole custody to joint custody may be granted without a showing of endangerment to a child's health or an impairment of the child's emotional development as is required under section 14-10-131(2), 6B C.R.S. (1987), and that instead, the proper standard for assessing the propriety of such a motion is governed by section 14-10-131.5(4), 6B C.R.S. (1987), the "best interest of the child" standard. In so holding, the court of appeals upheld the trial court's order modifying custody of the Wall children from sole custody in the father to joint custody in the father and the mother. We affirm the judgment of the court of appeals.

I

On June 17, 1987, a court decree was entered dissolving the marriage of petitioner Frank N. Wall (hereafter "the father") and respondent Karin S. Wall ¹ (hereafter "the mother"). The decree incorporated the parties' agreement to share joint legal custody with the mother designated as the primary residential custodian of their two children, who were then four years and eighteen months old, respectively. Beginning in early 1989 and throughout most of that year, the mother experienced serious health problems, ² and as a result she was unable to discharge her duties as custodial parent. In June, 1989, when the mother's health did not improve, the father suggested to the mother that he assume the full care of their children. The mother agreed, and on June 5, 1989, the mother and father stipulated to a modification of the joint custody order. The trial court approved the stipulation and entered an order awarding sole custody to the father and providing liberal visitation rights to the mother until further order of the court.

Over a year later, on December 6, 1990, the mother filed a motion seeking a modification of the June, 1989, order granting sole custody of the children to the father. The mother specifically asked that the trial court grant her sole custody of the children, and as grounds she asserted her recovery from her physical and emotional maladies and her ability to resume duties as residential custodial parent. She also alleged facts that, if proven, would satisfy the statutory criteria for a change of sole custody under section 14-10-131(2)(c), 6B C.R.S. (1987), ³ the provision of the state Uniform Dissolution of Marriage Act entitled "modification of sole custody." In her motion, the mother claimed that the current living environment in the custody of the father endangered the physical health of the children and significantly impaired their emotional development. A hearing was held on October 3, 1991, wherein, pursuant to C.R.C.P. 15(b) ⁴ and without objection from the father, the mother amended her pending motion for custody modification to request an award of joint custody. ⁵

By order dated November 13, 1991, the trial court granted the mother's motion to modify custody after setting forth specific findings of fact. In its order, the trial court held that the children's physical or emotional health was not jeopardized by virtue of the father having sole custody of the children; however, the trial court concluded that the children's best interests lay in having the mother participate as fully as possible in important decisions regarding the children. In addition, although the trial court held that the father should continue as primary residential custodian of the children, it ultimately determined that the change from sole custody to joint custody would be in the best interests of the minor children and that the harm likely to be caused would be outweighed by the advantage of such change to the children. Consistent with its findings, the court awarded joint custody and continued the father as the primary residential custodian.

On appeal to the court of appeals, the father argued that section 14-10-131(2) governed motions for a change from sole custody to joint custody. The father asserted that under the express and unambiguous language of that provision, a prior custody decree is not subject to modification unless the trial court makes a special finding that the child's environment either endangers the child's physical health or significantly impairs the child's emotional development. According to the father, the trial court failed to apply section 14-10-131(2) and in its place, erroneously applied the criteria contained in section 14-10-131.5(4) ⁶ the "best interest" standard, as defined by section 14-10-124(1.5), 6B C.R.S. (1987). ⁷ The father thus contended that the trial court's approval of the mother's motion for modification of sole to joint custody was in error.

Following its analysis that included a review of the inception and evolution of joint custody legislation in Colorado, see In re Marriage of Wall, 851 P.2d 224, 225-227 (Colo.App.1992), the court of appeals rejected the father's argument on the ground that the legislative history of the relevant statutory provisions

discloses a legislative choice to apply a less stringent standard to motions to convert prior sole custody decrees or orders into joint custody awards than that applied in changing sole custody from one parent or party to the sole custody of another. This choice is in keeping with the aspirational policy ... expressed in [section] 14-10-124(1), [6B] C.R.S. (1987). It is also reflective of the legislative recognition that a change in legal custody does not necessarily result in as disruptive a change to the child as that occasioned by a change in residential custody.

In re Marriage of Wall, 851 P.2d at 227. The court of appeals also concluded that

to the extent that the language of [section] 14-10-131 is in conflict with that of [section] 14-10-131.5(4), the latter provision, having been the later adopted substantive change, is controlling. In addition, [section] 14-10-131.5(4) more specifically applies to changes from sole to joint custody, while [section] 14-10-131 applies generally to modification of sole custody orders. Thus, under [section] 2-4-205, [1B] C.R.S. (1980), the more specific applicable statute is deemed controlling.

....

We conclude that the provisions of [section] 14-10-131 apply only if a request is made to change a prior order or decree placing sole custody with one party to an order placing sole custody with a different parent or party.

Id. (citations omitted). Thus the court of appeals held that a motion for a modification from sole custody to joint custody was not subject to the terms of section 14-10-131(2), i.e., that such motions may be granted without a showing of endangerment to the children's health or an impairment of emotional development; that section 14-10-131.5(4) is the applicable statute in such instances; and finally, that the trial court's ruling granting a modification to joint custody is supported by the record. ⁸

We granted the father's petition for certiorari review of the court of appeals' judgment in order to determine which statute controls joint custody determinations and the appropriate standard to be applied by courts. Because the court of appeals was correct in its holding that section 14-10-131.5 is the controlling statute in those cases where a non-custodial parent seeks a modification from sole custody to joint custody, we affirm.

II

A

In order to determine which of the statutory provisions raised by the parties in this case is applicable to motions for modification of sole custody to joint custody, it is necessary to examine the plain language of relevant statutes and to conduct an analysis cognizant of their historical context. We thus begin our analysis with an examination of section 14-10-131(2)(c), ⁹ the provision of the Colorado Uniform Dissolution of Marriage Act (the Act) entitled "modification of sole custody." That statute provides as follows:

14-10-131. Modification of sole custody.

....

(2) 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 ... 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:

....

(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.

Although this section is substantially unchanged from the original version which was enacted in 1963, section 46-1-31(2)(a) and (d), 12 C.R.S. (Cum.Supp.1963), repealed and reenacted June, 1971, ch. 130, sec. 1, § 46-1-31(2)(a) and (d), 1971 Colo.Sess.Laws 520, 532, in June, 1983, certain amendatory terms were added to the provision by the General Assembly. Those terms, now assimilated into section 14-10-131, can be noted in the following highlighted portions of that provision: "14-10-131. Modification of SOLE CUSTODY.... The court shall not modify a prior custody decree GRANTING CUSTODY TO ONE PARTY unless it finds ... 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." Ch. 178, sec. 5, § 14-10-131(2), 1983 Colo.Sess.Laws 645, 648 (amendatory language capitalized and underscored) (now § 14-10-131(2), 6B C.R.S. (1987))....