Moore's Marriage, In re

• Decision Date: 04 February 1975
• Docket Number: No. 74--257,74--257
• Parties: In re the MARRIAGE OF Ida MOORE, Petitioner-Appellant, and Charles R. Moore, Respondent-Appellee. . II
• Court: Colorado Court of Appeals

Page 995

531 P.2d 995

35 Colo.App. 280

In re the MARRIAGE OF Ida MOORE, Petitioner-Appellant,

and

Charles R. Moore, Respondent-Appellee.

No. 74--257.

Colorado Court of Appeals, Div. II.

Feb. 4, 1975.

Asher, Kraemer & Kendall, James G. Felt, Colorado Springs, for petitioner-appellant.

No appearance for respondent-appellee.

STERNBERG, Judge.

This appeal arises from a dissolution of marriage proceeding. The wife contends that the court abused its discretion in awarding custody of the two young children to the husband, and in its division of property. We reverse.

The parties were married in December 1966, and two children, both boys, were born in 1968 and 1970. The husband, an army officer, was absent for much of the time the children were infants. Thus, of necessity, the children were cared for almost exclusively by the mother during that time. Marital difficulties arose and, in July 1973, the wife filed a petition for dissolution of marriage. The husband joined in the request that the marriage be dissolved. Both parties asked for custody of the children, and after a hearing in August 1973, the court awarded their temporary custody to the mother.

At the time of the hearing on temporary orders, the wife was living with another man, and the court expressed its strong concern over the impact of such fact upon the well-being of the children, and warned the wife that:

'(I)f you are presently keeping company with a man--and I say if--in the premises where the children are located, I strongly suggest to you at this time you completely cease from this conduct because if it continues and is brought to my attention under appropriate circumstances, you may rest assured the children will not remain with you any longer. . . . I will not tolerate the children living in an immoral situation and I cannot be as emphatic enough about this.'

The wife and her male friend then stopped living in the same home for approximately three months, but at the time of the hearing on permanent orders, they were again living together with the children.

At the time of the hearing on permanent orders in March 1974, the testimony of several witnesses, including the parties, was presented on the custody issue. The El Paso County Department of Public Welfare had previously conducted an investigation on that issue and recommended that custody be placed in the wife. While awarding custody to the husband, the court specifically stated that:

'(E)xcept for conduct by (the wife) in becoming and continuing to be involved in an adulterous situation, wherein the children of the marriage are residing in such situation, that the petitioner is a qualified parent and is otherwise a fit and proper person to have custody of said children.'

The court also noted that it had admonished the mother about her life style at the time of the temporary orders hearing, and further concluded:

'(T)hat such adulterous conduct in the opinion of the Court constitutes conduct of the temporary custodian of the children that can and does affect the parties' relationship to the children, and that such conduct is immoral, and that such conduct reflects upon the mental and physical well-being of the children and in fact is detrimental to the mental well-being of said children.'

I.

From our reading of the lengthy record in this case, it is apparent that there...