Smith v. Smith, No. 24205

Docket NºNo. 24205
Citation474 P.2d 619, 172 Colo. 516
Case DateSeptember 21, 1970
CourtSupreme Court of Colorado

Page 619

474 P.2d 619
172 Colo. 516
Joan SMITH, Plaintiff in Error,
v.
Edward G. SMITH, aka Ed G. Smith, Defendant in Error.
No. 24205.
Supreme Court of Colorado, In Department.
Sept. 21, 1970.

[172 Colo. 517]

Page 620

Burns & Wall, Peter J. Wall, Hindry & Meyer, Jay L. Gueck, Erickson & Littel, Denver, for plaintiff in error.

[172 Colo. 518] William E. Myrick, Denver, John A. Criswell, Englewood, for defendant in error.

PRINGLE, Justice.

Joan Smith brought an action against her husband, Edward G. Smith, seeking a divorce, custody of a minor child, alimony and a property division. The husband counterclaimed for divorce below and the trial court granted a divorce in favor of both parties. The wife contends (1) that the trial court erred in awarding custody of the parties' minor child to the father, (2) that the amount awarded to the wife in property settlement was inadequate. The husband alleges cross-error, contending that the amount of permanent alimony awarded to the wife constituted an abuse of discretion.

The parties were married May 4, 1966. The child, James John, was born January 5, 1968. The wife filed her complaint for divorce April 29, 1968, along with motions seeking (1) the return of the child who was with his father, (2) an order restraining the husband from disposing of any of his property, and (3) support and suit money orders. Temporary custody was placed in the mother on May 17, 1968, Nunc pro tunc May 3, 1968. At this hearing the court ordered both parties to see a psychiatrist so that expert testimony could be heard on the issue of permanent custody.

In the interim, the husband filed his counterclaim for divorce, and on September 4, 1968, both parties were granted a divorce.

Page 621

Custody of the child was allowed to remain with the mother until a later hearing could be held. The court also ordered that the parties undergo additional examination by a second psychiatrist, and further ordered the Jefferson County Welfare Department to conduct an investigation on the matter of custody, and file a written report.

[172 Colo. 519] On January 24, and 27, 1969, hearings were held on the issue of permanent custody. In its order of March 4, 1969, Nunc pro tunc January 24, 1969, the court awarded permanent custody of the child to the father. After another hearing, permanent orders regarding property division and alimony were issued April 7, 1969.

We will discuss the matter of custody first, and then consider the alleged error concerning alimony and the property settlement.

I.

This court has always been committed to the doctrine that the paramount consideration in awarding custody of children is the best interest of the child itself. Rippere v. Rippere, 157 Colo. 29, 400 P.2d 920. The enactment of 1969 Perm.Supp. C.R.S. 1963, 46--1--5(7), which provides, Inter alia, 'In any action for divorce or in any subsequent proceeding in which more than one party seeks the custody of any minor child, no party shall be presumed to be able to serve the best interests of the child better than any other party because of sex. * * *', in no way affects this principle. The best interests of the child must still be determined by the trial judge in each case based on...

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12 practice notes
  • Colorado Nat. Bank of Denver v. Friedman, No. 91SC706
    • United States
    • Colorado Supreme Court of Colorado
    • February 8, 1993
    ...an abuse of Page 167 such discretionary power." Moseley v. Lamirato, 149 Colo. 440, 447, 370 P.2d 450, 455 (1962); see Smith v. Smith, 172 Colo. 516, 474 P.2d 619, 621 (1970) (holding that whenever this court is called on to review a matter within the sound discretion of a trial judge, we w......
  • In re Lang, Bankruptcy No. B-79-14027 M
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Western District of New York
    • May 29, 1981
    ...v. Baker, 80 Wash.2d 736, 498 P.2d 315 (1972); Wis., Anderson v. Anderson, 72 Wis.2d 631, 242 N.W.2d 165 (1976). Colo., Smith v. Smith, 172 Colo. 516, 474 P.2d 619 (1970), while looking to the need and relative financial positions of the parties in awarding both alimony and counsel fees, al......
  • Sargeant v. Sargeant, No. 6567
    • United States
    • Nevada Supreme Court of Nevada
    • April 7, 1972
    ...207 Kan, 506, 485 P.2d 1365 (1971); Lowe v. Lowe, 182 S.E.2d 75 (S.C.1971); Swanson v. Swanson, 464 S.W.2d 225 (Mo.1971); Smith v. Smith, 172 Colo. 516, 474 P.2d 619 (1970). According great respect to the trial court's discretion we now declare Allis v. Allis, supra, overruled and all cases......
  • Lewis v. Lewis, Case No. 07SC134 (Colo. 8/18/2008), Case No. 07SC134.
    • United States
    • Colorado Supreme Court of Colorado
    • August 18, 2008
    ...enrichment. Id. at 420 (citing Colo. Nat'l Bank of Denver v. Friedman, 846 P.2d 159, 166-67 (Colo. 1993)); see also Smith v. Smith, 172 Colo. 516, 518, 474 P.2d 619, 621 (1970) (holding that when the Colorado Supreme Court is called on to review a matter within the sound discretion of a tri......
  • Request a trial to view additional results
12 cases
  • Colorado Nat. Bank of Denver v. Friedman, No. 91SC706
    • United States
    • Colorado Supreme Court of Colorado
    • February 8, 1993
    ...an abuse of Page 167 such discretionary power." Moseley v. Lamirato, 149 Colo. 440, 447, 370 P.2d 450, 455 (1962); see Smith v. Smith, 172 Colo. 516, 474 P.2d 619, 621 (1970) (holding that whenever this court is called on to review a matter within the sound discretion of a trial judge, we w......
  • In re Lang, Bankruptcy No. B-79-14027 M
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Western District of New York
    • May 29, 1981
    ...v. Baker, 80 Wash.2d 736, 498 P.2d 315 (1972); Wis., Anderson v. Anderson, 72 Wis.2d 631, 242 N.W.2d 165 (1976). Colo., Smith v. Smith, 172 Colo. 516, 474 P.2d 619 (1970), while looking to the need and relative financial positions of the parties in awarding both alimony and counsel fees, al......
  • Sargeant v. Sargeant, No. 6567
    • United States
    • Nevada Supreme Court of Nevada
    • April 7, 1972
    ...207 Kan, 506, 485 P.2d 1365 (1971); Lowe v. Lowe, 182 S.E.2d 75 (S.C.1971); Swanson v. Swanson, 464 S.W.2d 225 (Mo.1971); Smith v. Smith, 172 Colo. 516, 474 P.2d 619 (1970). According great respect to the trial court's discretion we now declare Allis v. Allis, supra, overruled and all cases......
  • Lewis v. Lewis, Case No. 07SC134 (Colo. 8/18/2008), Case No. 07SC134.
    • United States
    • Colorado Supreme Court of Colorado
    • August 18, 2008
    ...enrichment. Id. at 420 (citing Colo. Nat'l Bank of Denver v. Friedman, 846 P.2d 159, 166-67 (Colo. 1993)); see also Smith v. Smith, 172 Colo. 516, 518, 474 P.2d 619, 621 (1970) (holding that when the Colorado Supreme Court is called on to review a matter within the sound discretion of a tri......
  • Request a trial to view additional results

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