Peterson v. Schwartzmann, 15792.

Decision Date07 April 1947
Docket Number15792.
Citation179 P.2d 662,116 Colo. 235
PartiesPETERSON v. SCHWARTZMANN et al.
CourtColorado Supreme Court

Error to Arapahoe County Court; Henry Bruce Teller, Judge.

Proceeding in the matter of the People, in the interest of Glenda Jean Peterson, on the petition of Jack Schwartzmann, State Humane Officer, and B. W. and Izora Richards, against Glen O Peterson and Marie Josephine Peterson. From an order awarding the custody of Glenda Jean Peterson to B. W. and Izora Richards, Glen O. Peterson brings error.

Case remanded with instruction that proceedings be dismissed.

Child custody order rendered in divorce proceeding is always subject to be reopened upon showing of change of situation.

Morton M. David, Nathan I. Golden, and Fred L Schwartz, all of Denver, for plaintiff in error.

Earl J Hower and Edward H. Sherman, both of Denver, for defendant in error.

STONE Justice.

On the twentieth day of February, 1946, Marie Josephine Peterson obtained an interlocutory decree of divorce from Glen O Peterson, respondent below and plaintiff in error here, in the county court of Jefferson County, Colorado. By the terms of that decree the mother was awarded custody of their minor daughter, Glenda Jean then approximately twenty months of age Less than four months later, after a contested hearing at which the mother appeared in person and by counsel, the court revoked that order and awarded the custody of the child to the father, plaintiff in error, Glen O. Peterson, who thereupon placed the child in a registered and licensed nursery home south of the Denver line in Arapahoe County. Seventeen days after the award of custody to plaintiff in error, the parents of Marie Josephine Peterson, B. W. and Izora Richards, together with a state humane officer, filed petition in the county court of Arapahoe County in which both Glen O. Peterson and Marie Josephine Peterson were named as respondents, alleging that said minor was a dependent child and asking that she be so adjudged. Marie Josephine Peterson promptly filed answer admitting the allegations of the pretition and joining therein and asked that the custody and care of the minor child be awarded to her parents, the petitioners therein. The record discloses that she, with her three minor children by other marriage, was residing in the basement apartment of her parents home so that their custody of the child would virtually be hers. After apt challenge to the jurisdiction had been overruled and answer denying dependency filed, the matter was heard to the court in July 30, 1946, when the child was adjudged to be a dependent and her custody awarded to petitioners Richards. Of the several grounds for reversal here urged we need consider only two: first, as to the jurisdiction of the court, and second, as to the sufficiency of the evidence.

Jurisdiction was first challenged on the ground that the county court of Jefferson county had acquired jurisdiction over custody of the child as an incident to the divorce proceeding, and that its jurisdiction was exclusive. This contention is true as between the parties to that proceeding; but the nature and objects of the two proceedings are different. The one involves preference as between the parents; the other, the duty of the state to interfere. 'The jurisdiction of the divorce court is exercised as between the husband and the wife; that of the juvenile court 'as between the state, or, so to speak, the child, and the parents of the child.' * * * The two courts may have simultaneous, though not concurrent, jurisdiction concerning the custody of the child.' Ross v. Ross, 89 Colo. 536, 5 P.2d 246, 248, 78 A.L.R. 313.

Challenge was further interposed to the jurisdiction of the Arapahoe County court on the ground that the father to whom the custody of the minor had been awarded was a resident of the City and County of Denver; that the legal residence of the minor followed that of the parent having custody, and that the county of residence was the proper county in which to bring the action. Hudson v. Hattingley, 69 Colo 528, 195 P. 113, is cited in support of this contention. The statute ('35 C.S.A., chap. 33, sec. 2) provides that county courts and juvenile courts in the several counties shall have jurisdiction in dependency cases. The county court of Arapahoe County has jurisdiction over the abstract subject of judicial inquiry equally with the juvenile court of the City and County of Denver. The question here raised, and the question discussed in Hudson v. Mattingley, supra, is not, then, one of jurisdiction, but rather one of venue. The statute, section 3, chapter 33, '35 C.S.A., provides that any officer therein specified 'or any person who is a resident of the county, having knowledge of a child in his county who appears to be a dependent or neglected child, may file with the clerk of the county court, or juvenile court, a petition * * *.' (Emphasis supplied.) Where the proper officer files a petition in dependency in the county where the child is found and the conditions alleged as constituting dependency also exist therein, as in the...

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8 cases
  • Trueblood v. Pierce
    • United States
    • Colorado Supreme Court
    • April 7, 1947
  • People in the Interest of Murley, In re, 16554
    • United States
    • Colorado Supreme Court
    • December 24, 1951
    ...the state does the juvenile court determine the question of its custody and such custody is in behalf of the state. Peterson v. Schwartzmann, 116 Colo. 235; 179 P.2d 662. Upon adjudication of dependency, all right of the parents as to custody is lost. The child may be committed to the state......
  • Cullen v. People on Petition of Baer
    • United States
    • Colorado Supreme Court
    • July 8, 1963
    ...courts in dependency actions has been discussed by this court in Hudson v. Mattingley, 69 Colo. 528, 195 P. 113; Peterson v. Schwartzmann, 116 Colo. 235, 179 P.2d 662; Geisler v. People, 135 Colo. 121, 308 P.2d 1000. The statute and the cases reveal that the court committed error in refusin......
  • Jones v. Koulos
    • United States
    • Colorado Supreme Court
    • February 29, 1960
    ...Colo. 238, 323 P.2d 628, wherein this court cited with approval Ziemer v. Wheeler, 89 Colo. 242, 1 P.2d 579 and also Peterson v. Schwartzmann, 116 Colo. 235, 179 P.2d 662, there was no evidence of abandonment such as revealed by the evidence herein. As we said in the Diernfeld case, if 'thr......
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5 books & journal articles
  • ARTICLE 3 DEPENDENCY AND NEGLECT
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (CBA) Title 19 Children's Code
    • Invalid date
    ...exist therein, the venue of a dependency action is in that county despite technical legal residence elsewhere. Peterson v. Schwartzmann, 116 Colo. 235, 179 P.2d 662 (1947). ■ 19-3-201.5. Change of venue - county department and county attorney responsibilities - rules. (1) Each county depart......
  • ARTICLE 1
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (2022 ed.) (CBA) Title 19 Children's Code
    • Invalid date
    ...316 (1963). Statute as basis of jurisdiction. Johnson v. People, 170 Colo. 137, 459 P.2d 579 (1969). Applied in Peterson v. Schwartzmann, 116 Colo. 235, 179 P.2d 662 (1947); People in Interest of Unborn Child v. Estergard, 169 Colo. 445, 457 P.2d 698 (1969).C. Paternity. This section confer......
  • ARTICLE 3
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (2022 ed.) (CBA) Title 19 Children's Code
    • Invalid date
    ...exist therein, the venue of a dependency action is in that county despite technical legal residence elsewhere. Peterson v. Schwartzmann, 116 Colo. 235, 179 P.2d 662 (1947). ■ 19-3-201.5. Change of venue - county department and county attorney responsibilities - rules. (1) Each county depart......
  • ARTICLE 1 GENERAL PROVISIONS
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (CBA) Title 19 Children's Code
    • Invalid date
    ...316 (1963). Statute as basis of jurisdiction. Johnson v. People, 170 Colo. 137, 459 P.2d 579 (1969). Applied in Peterson v. Schwartzmann, 116 Colo. 235, 179 P.2d 662 (1947); People in Interest of Unborn Child v. Estergard, 169 Colo. 445, 457 P.2d 698 (1969).C. Paternity. This section confer......
  • Request a trial to view additional results

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