Wiederspahn v. Wiederspahn

• Decision Date: 17 April 1961
• Docket Number: No. 19121,19121
• Citation: 361 P.2d 125
• Parties: Robert G. WIEDERSPAHN, Plaintiff in Error, v. Beverly J. WIEDERSPAHN, Defendant in Error.
• Court: Colorado Supreme Court

Page 125

361 P.2d 125

146 Colo. 214

Robert G. WIEDERSPAHN, Plaintiff in Error, v.Beverly J. WIEDERSPAHN, Defendant in Error.

No. 19121.

Supreme Court of Colorado, In Department.

April 17, 1961.

Lawther & Dudley, Westminster, for plaintiff in error.

Creamer & Creamer, Denver, for defendant in error.

SUTTON, Justice.

The parties appear here in reverse order to their appearances below.They will be referred to as they appeared in the trial court.

On November 10, 1958, plaintiff was granted a divorce from the defendant.Under the terms of the decree, she was granted custody of the minor child of these parties, Robert G. Wiederspahn, Jr., subject to rights of reasonable visitation by the defendant.Subsequently, she petitioned the trial court to permit her to remove this child with her from the State of Colorado to the State of Missouri.According to her petition, she contemplated remarriage, and it would be necessary for her husband to live in Missouri, where she desired to move with her child.The record indicates that plaintiff was in fact remarried on May 22, 1959, and that she and her present husband were then living in Kansas City, Missouri.In her petition plaintiff also asked the trial court to grant an order restraining defendant from 'annoying her, using foul and vulgar language toward her and in her presence, and directing the defendant not to call for the child of these parties when he is intoxicated or under the influence of intoxicating liquor.'

There were extensive findings of fact by the trial court after hearing testimony and argument.The relevant issues of law were briefed by counsel.The trial court found that defendant had been conducting himself in accord with the statements made in plaintiff's petition, and issued the requested restraining order.The court also found that there was no evidence from which to conclude that plaintiff's home would not be a fit and proper place in which to rear a child.It accordingly held that plaintiff was entitled to the continued care, custody and control of this child, who is now four years old.In its order the court provided that the child shall be returned to Jefferson County in the spring of each year, for a period of three weeks, and then be returned to the custody of the plaintiff, all at plaintiff's expense.Defendant by writ of error seeks reversal of the order of the trial court.

It is a well established principle that findings of fact by the trial court, when supported by sufficient competent evidence, will not be disturbed on review, absent a showing of abuse of discretion.This principle has been approved many times by this court.SeeTrenchard v. V. J. Dunton Realty Co.(1959)141 Colo. 360, 347 P.2d 959.The reasons for this salutary rule are well known.There are matters relating to weight of the evidence and the credit to be accorded the testimony of witnesses not apparent on the bare face of the record presented for review.The trial court is thus best fitted to make a determination of the fact.These considerations are particularly applicable in an action involving the custody of a child.Questions of custody must of necessity rest upon the judgment of the trier of facts, hence are best left in the hands of the trial court, and its determination should not be disturbed if there is sufficient competent evidence to support its conclusion.As...