Smith v. Smith
| Citation | 474 P.2d 619,172 Colo. 516 |
| Decision Date | 21 September 1970 |
| Docket Number | No. 24205,24205 |
| Parties | Joan SMITH, Plaintiff in Error, v. Edward G. SMITH, aka Ed G. Smith, Defendant in Error. |
| Court | Supreme Court of Colorado |
Burns & Wall, Peter J. Wall, Hindry & Meyer, Jay L. Gueck, Erickson & Littel, Denver, for plaintiff in error.
William E. Myrick, Denver, John A. Criswell, Englewood, for defendant in error.
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. 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.
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.
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 the particular circumstances of that case.
In this case, the court heard testimony from friends and relatives on both sides. He heard the testimony of three expert witnesses. He also heard the testimony of the parties. The friends and relatives stated that either party could be considered an excellent parent, depending, of course, on which side called them. The experts differed in their conclusions. The court specifically stated for the record that it was the testimony of the wife herself which was primarily responsible for his ruling. Referring to her testimony, he said:
We have carefully reviewed the wife's testimony in the record. We do not find the trial court's ruling to be an abuse of the discretion entrusted to it.
One of the experts said that he felt the mother to be the best guardian for the child at his current age of one year, but felt that the mother's psychiatric problems would begin to tell on the child as he reached four or five. In reference to this, the trial court ruled that he must look at the whole picture, and decided that it would be best to merely allow the mother liberal visitation rights for the first few years. We agree that this is a proper method. The court did order the father to hire a housekeeper.
It has been the consistent position of this court that whenever we are called upon to review a matter within the sound discretion of a trial judge, we will not reverse his finding unless it constitutes a clear abuse...
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