Marriage of Wall, In re, 91CA1882

• Decision Date: 22 October 1992
• Docket Number: No. 91CA1882,91CA1882
• Citation: 851 P.2d 224
• Parties: In re the MARRIAGE OF Karen S. WALL, Appellee, and Frank N. Wall, Appellant. . V
• Court: Colorado Court of Appeals

Page 224

851 P.2d 224

In re the MARRIAGE OF Karen S. WALL, Appellee,

and

Frank N. Wall, Appellant.

No. 91CA1882.

Colorado Court of Appeals,

Div. V.

Oct. 22, 1992.

Rehearing Denied Dec. 3, 1992.

Certiorari Granted May 10, 1993.

John C. Schaefer, Denver, for appellee.

Susan J. Dycus, Denver, for appellant.

Opinion by Judge HUME.

Frank N. Wall (father) appeals the trial court's modification of an order awarding him sole custody of the parties' children to one providing for joint custody. We affirm.

The marriage of father and Karen S. Wall (mother) was dissolved in 1987, and the decree incorporated the parties' agreement to share joint custody of their two children. Approximately two years later, the parties stipulated to, and the court approved, a modification of the decree, giving the father sole custody of the children. Thereafter, as pertinent here, mother filed a motion for modification of sole custody pursuant to § 14-10-131(2), C.R.S. (1987 Repl.Vol. 6B).

At the commencement of the hearing, the mother verbally amended her motion to request the resumption of joint custody and conceded that a continuance, if desired by the father, would be appropriate. However, the father did not object to the amendment of mother's motion, nor did he request a continuance either before or after the presentation of evidence.

The trial court considered and granted the mother's motion under the best interest standard of § 14-10-131.5(4), C.R.S. (1987 Repl.Vol. 6B). In addition, it specifically found that the additional element of proof imposed by § 14-10-131(2), and not found in § 14-10-131.5(4), i.e., endangerment to the children's physical health or significant impairment of their emotional development, had not been established.

Father contends that, since the mother requested a change from sole custody, the plain language of § 14-10-131(2) requires a finding of physical endangerment or significant emotional impairment before such change may be granted. He argues that, by focusing on the standard applicable to the form of custody being changed to, the statutory intent regarding modification of custody is ignored and the provisions of §§ 14-10-131(2) and 14-10-131.5 are rendered conflicting. We are not persuaded.

In construing a statute, our primary purpose is to determine and give effect to the legislative intent. Boulder County Board of Equalization v. M.D.C. Construction Co., 830 P.2d 975 (Colo.1992). We first look to the statutory language and give the words and phrases their plain and ordinary meaning, and we are obliged to construe an entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all of its parts. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo.1991).

If the intended scope of the statutory language is unclear, the court may consider the consequences of a particular construction. Jones v. Cox, 828 P.2d 218 (Colo.1992).

Accordingly, we must attempt to harmonize § 14-10-131.5(4) with § 14-10-131, to the extent this is possible. In doing so, the legislative background of the provisions regarding joint custody is helpful.

Until 1983, Colorado had no statutes recognizing the concept of joint legal custody. Prior to that time, the pertinent statute had dealt exclusively with procedures applicable to modification of custodial orders vesting custody solely with one parent or party. See Colo.Sess.Laws 1971, ch. 130, § 46-1-31 at 532.

In 1983, two separate joint custody bills were introduced for consideration by the General Assembly. One of those bills, Senate Bill 348, was patterned after California statutes in which the term "joint custody" embodied both "joint legal custody" (shared decision-making rights, responsibilities, and authority relating to the child's health, education and welfare) and "joint physical custody" (alternative residential stewardship of the child). Senate Bill 348 also contained a legislative preference in the form of a rebuttable presumption that parental joint custody is in the best interest of the child. That presumption would have required a court to make specific findings and to specify reasons why joint custody was not awarded in any parental custody proceedings. Senate Bill 348 was not adopted.

The second bill introduced in 1983, Senate Bill 286, as ultimately adopted by the General Assembly, defined "joint custody" as authority for shared decision-making and provided that orders awarding joint custody "may designate one party as a residential custodian." See Colo.Sess Laws 1983, ch. 178, § 14-10-123.5(1) at 645. The initial bill was also amended to limit the court's authority to award joint custody only to those situations in which there was agreement of the parties. See Colo.Sess. laws 1983, ch. 178, § 14-10-124(1.5)(5) at 647.

Although the General Assembly declined to enact a presumptive preference for joint custody, it did adopt the following aspirational language in the form of a legislative finding and declaration:

[I]t is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage. In order to effectuate this goal, the general assembly urges parents to share the rights and responsibilities of child-rearing, and to encourage the love, affection, and contact between the children and the parents.

Colo.Sess.Laws 1983, ch. 178, § 14-10-124(1) at 647.

As a part of Senate bill 286, the previously existing statute governing modification of custody orders was amended as follows:

Modification OF SOLE CUSTODY. (1) If a motion for modification OF A DECREE GRANTING CUSTODY TO ONE PARTY has been filed ... no subsequent motion may be filed within two years after disposition of the prior motion unless ... there is reason to believe that the child's present environment may endanger his physical health or significantly impair his emotional development.

See Colo.Sess.Laws 1983, ch. 178, § 14-10-131(1) at 648 (amendatory language capitalized). Identical language was also added to the substantive standard for modification in § 14-10-131(2). See Colo.Sess Laws 1983, ch. 178 at 648.

As a part of the same bill, an entirely new section was added, as follows:

Joint custody modification-termination. (1) Except as provided in subsection (3) of this section, an 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 interest of the child, as specified in section 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.

....

(2) No motion for modification of joint custody may be filed within two years after disposition of a prior motion for modification unless ... adequate cause for hearing the motion is established....

....

(4) Any order awarding custody of a minor child entered by a court of this state ... may be modified from sole custody to joint custody at any time pursuant to this section. (emphasis added)

Colo.Sess.Laws 1983, ch. 178, § 14-10-131.5 at 646 and 647.

In 1987, the General Assembly again amended § 14-10-124(1.5) so as to confer authority upon the trial court to enter a joint custody decree on the motion of either party or upon the court's own motion. The factors to be considered by the court in determining the best interest of the child were also restated and broadened by the same amendment. In addition, the term "joint custody" was redefined to delineate more clearly the concept of joint decision-making authority and to separate that concept from the concept of residential custodianship of the child. See Colo.Sess.Laws...