Nelson v. District Court In and For Second Judicial Dist., 26596

• Decision Date: 29 October 1974
• Docket Number: No. 26596,26596
• Citation: 527 P.2d 811,186 Colo. 381
• Parties: Application of Jean NELSON on behalf of Michael John Schweitzer, a minor, Petitioner, v. DISTRICT COURT IN AND FOR the SECOND JUDICIAL DISTRICT and Honorable Robert T. Kingsley, one of the Judges, Respondents.
• Court: Colorado Supreme Court

Page 811

527 P.2d 811

186 Colo. 381

Application of Jean NELSON on behalf of Michael John

Schweitzer, a minor, Petitioner, v. DISTRICT COURT IN AND FOR the SECOND JUDICIAL DISTRICT and Honorable Robert T. Kingsley, one of the Judges,

Respondents.

No. 26596.

Supreme Court of Colorado, En Banc.

Oct. 29, 1974.

Robert W. Caddes, Denver, for petitioner.

Friedman, Bader & Dufty, Michael C. Schaefer, Denver, for respondents.

ERICKSON, Justice.

Jean Nelson, in this original proceeding, seeks relief in the nature of mandamus and prohibition. She alleges (1) that the trial court continued a hearing on her petition for habeas corpus and denied her the statutory right to a hearing within five days, and (2) that the trial court lacks jurisdiction to hear a petition for permanent custody and should be prohibited from determining the custody issue. We grant relief in the nature of mandamus, but deny the writ of prohibition. The rule to show cause is made absolute in part and discharged in part.

I.

Denise and Richard Schweitzer were married in Denver, Colorado in 1971. One child, Michael Schweitzer, who is now two years old, is the issue of their marriage. They obtained a decree of divorce on February 27, 1974, in Oklahoma, where Richard was stationed in the military service.

The decree provided that 'it is in the best interests of the child (Michael) that temporary care and custody . . . be placed in Jean Nelson of Bainville, Montana.' The court granted liberal visitation privileges to both parents and granted Denise an additional one-week visitation period during the Christmas holidays. Richard was directed to pay the custodian $50 per month for Michael's care and maintenance beginning April 5, 1974.

Jean Nelson took immediate custody of Michael and returned to Montana, where she resides and is domiciled. After the divorce, both Denise and Richard moved to Denver and established Colorado as their respective legal domiciles.

On July 8, 1974, Jean brought Michael to Denver to enable him to visit his mother. Denise, however, refused to relinquish Michael when Jean was prepared to return to Montana. As a result, Jean filed a petition for habeas corpus in the district court, as provided in C.R.S. 1963, 65--1--2. In response, Penise sought to have the trial court determine the issue of Michael's permanent custody. The lower court consolidated both petitions and ordered the case to be continued pending notification to the father.

II.

The legal issues before us are: (1) Did the trial court correctly continue the habeas corpus proceeding on the ground that the child, Michael, requested the delay? (2) Does the trial court have subject matter jurisdiction, as defined in the Uniform Child Custody Jurisdiction Act, to determine questions relating to Michael's permanent custody?

III.

The attorneys for the mother argue that the trial court properly continued the hearing on the habeas corpus petition beyond the five-day statutory time limit. C.R.S. 1963, 65--1--3(1). They assert that Michael, in effect, requested the continuance by filing the custody petition through his mother. We disagree.

Although the child is nominally the petitioner in both the habeas corpus and custody cases, the interests represented in the two actions are diametrically opposed. We will not place form over substance by concluding that identical captions on both petitions reflect identical legal interests. Jean Nelson seeks expeditions enforcement of the custody order, while Denise Schweitzer seeks a determination concerning Michael's permanent custody. A continuance in the habeas corpus proceeding entirely defeats the purpose for which Jean Nelson and Michael pursued that course of action--immediate restoration of the child to his legal custodian. Concomitantly, the continuance fully effectuated Denise's interests, for she was permitted to retain Michael until the father could be located and notified of the pending action.

We remand the case to the trial court with directions that it hear the habeas corpus petition without delay.

IV.

The second question which we must rule on is whether the trial court has jurisdiction to decide the issues raised in the petition for permanent custody. The standard is set forth in the Uniform Child Custody Jurisdiction Act (Colo.Sess.Laws 1973, ch. 163, 46--6--1 et seq.), which must be construed to effectuate its purpose of permitting courts to act in the child's best interest. Wheeler v. District Court, Colo., 526 P.2d 658 (Announced September 23, 1974). In pertinent part, Section 46--6--3(1)(c) provides that courts of this state shall be 'competent to decide child custody matters . . . if':

'It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with the state, and there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.'

We hold that the trial court properly applied this law in concluding that it had jurisdiction. Both parents have a significant connection with Colorado. They are both domiciled in this state. The difficult decision is whether Michael has the requisite nexus to give the court of this state a basis to hear and determine the custody issue. Michael is not domiciled in Colorado, but in Montana, the domicile of his legal custodian. Cf. Fahrenbruch v. People ex rel. Taber, 169 Colo. 70, 453 P.2d 601 (1969); Evans v. Evans, 136 Colo. 6, 314 P.2d 291 (1957) (dictum). However, that fact alone does not deprive Colorado of jurisdiction because Michael has other significant contacts and connections with this state.

All of the individuals who have an interest in his future care, well-being and custody were either domiciled in this state or sought to enforce their legal rights, by way of habeas corpus or permanent custody petitions in the courts of Colorado.

Finally, sufficient evidence was available in this state from which the trial court could have concluded that the Colorado court could best resolve the issues relating to Michael's future care and training. Both the parents and the maternal and paternal grandparents reside in Colorado.

V.

Petitioner contends that the trial court does not have jurisdiction because the mother abducted Michael and should not be allowed to utilize the forum convenient to her because of her...