Plaintiff in error will be referred to as the father, and defendant in error as the mother. The parties were formerly husband and wife and were the parents of three children who were of the ages of seven, five and four respectively at the time of the entry of the judgment to which this writ of error is directed.
The mother commenced an action for divorce in the district court of Boulder County and on December 20, 1961, a decree of divorce entered therein. A stipulation was entered into by the parties and made a part of the divorce decree, which provided:
January 25, 1962, the mother filed a motion seeking the court's permission to remove the three minor children from Boulder, Colorado, to Sebeka, Minnesota. On March 13, 1962, the court heard argument of counsel on the above motion and on March 20, 1962, an order was signed by
The father is here on writ of error seeking review of the judgment authorizing removal of the children to the State of Minnesota. As grounds for reversal it is urged by counsel for the father that:
The trial court made findings which include the following:
The question for our determination is, whether there is sufficient competent evidence in the record before us to justify this conclusion.
It is well established in Colorado that it is against the policy of the law to permit the removal of a child from the jurisdiction unless its best interests would be better served thereby. In McGonigle v. McGonigle, 112 Colo. 569, 151 P.2d 977 (1944), we find the following pertinent language:
However, should it be established that removal of the child from the jurisdiction would be conducive to the child's best interests, then the court should permit removal from the jurisdiction.
In Searle v. Searle, 115 Colo. 266, 172 P.2d 837, the following is said:
"In determining what is for the best welfare of a child of tender years, the courts must consider not only food, clothing, shelter, care, education, and environment, but must also bear in mind that every such child is entitled to the love, nurture, advice, and training of both father and mother, and to deny to the child an opportunity to know, associate with, love, and be loved
In the instant case the record shows that the father had been contributing the sum of $280.00 per month for the support of the mother and children; that other assets in the form of real estate are to be disposed of and the proceeds derived from the sale thereof are to be divided equally between the father and the mother. The mother testified concerning the relationship between the father and the children as follows:
For all practical purposes the order authorizing removal of the children to the State of Minnesota eliminates any opportunity for visitation rights by the father except during summer vacations. There is no showing in the record before us of any substantial reasons of health, cultural opportunities or other advantages contributing to the best interests of the children, justifying their removal from the State of Colorado. In fact, the contrary overwhelmingly appears. The father has indicated a willingness to do more than at present required in the way of providing "babysitter" support in order to have his children available for visitation rights as originally contemplated.
The father has adequate means with which to supply all the reasonable requirements of his children, and their support and maintenance is a prior claim upon his earning capacity. There is no need for the mother to live "more cheaply" in a town far removed from this jurisdiction. Even if there was such a need, there was a lack of competent evidence to establish cheaper living costs in Minnesota. If the best interests of the children require that the mother spend more time with them and less time at work, the resources of the father are adequate and the trial court upon application could so adjudge if the showing made justified such an order. We reach the inescapable conclusion, as counsel for the father has suggested, that the fundamental reasons prompting the mother in seeking removal were for her own personal conveniences only.
The judgment is reversed and the cause remanded with directions to vacate the order authorizing the removal of the minor children of the parties to the State of Minnesota.
HALL and McWILLIAMS, JJ., dissent.
McWILLIAMS, Justice (dissenting).
The trial court after full hearing granted Inez's motion requesting permission to remove the three children of the parties from the State of Colorado to the State of Minnesota, with the proviso that Walter should have the right to custody of the three in Colorado during the summer vacation.
In granting the aforementioned motion, the trial court found, inter alia:
The issue to be resolved is whether there was evidence before the trial court which would warrant and support its commendably detailed and explicit findings. The majority holds that "there is no showing * * * of any substantial reasons of health, cultural opportunities or other advantages contributing to the best interests of the children, justifying their removal from the State of Colorado", and that "in fact, the exact contrary overwhelmingly appears." I do not so view the record, and with such appraisal of the evidence I am in respectful but quite definite disagreement.
The only witnesses at the hearing were the parties themselves, each of whom was allowed to testify virtually without objection as to their respective wishes and desires in connection with the contemplated move of the children to Minnesota, and their reasons in connection therewith.
From the record I learn that Inez and Walter were reared and educated in Minnesota, Inez being a registered nurse and Walter having received his bachelor's degree in chemical engineering, a master's degree in physics, as well as a doctorate degree. The Tanttila family only moved to Boulder in about 1958 when Walter accepted a teaching position at the university. Three and one-half years later their marriage was terminated by a judicial finding that a divorce should be granted to both parties on the statutory grounds that both were guilty of "extreme and repeated acts of cruelty, constituting mental cruelty." Pursuant to stipulation the decree in divorce provided that custody of the three children be placed with Inez, with Walter having the right to custody of all children on alternate weekends, "from Friday evening until Sunday evening." Walter also was similarly ordered to pay $180 per month as support money for the three children, and $100 per month as alimony.
Only a few days after the entry of the divorce decree Walter married a woman who had two children by a prior marriage, and they proceeded to set up their own home.
Being unable to run her household on $280 per month, Inez found it necessary to obtain part-time employment with the Boulder Medical Center, occasionally working from 8:30 in the morning until 5:30 in the evening, and on other occasions working only the morning or afternoon shifts. The children were turned over to a baby sitter when Inez was away from the home.
Inez in effect testified that in her view the interests of her three children would be better served if she could work less and spend more time in the home, and that
Without recounting all of Inez's testimony, it seems apparent to me, at least, that the dominant reason for moving to Minnesota was Inez's desire and definite expectation to be more of a full-time mother, which most certainly is in the best interests of her children.
Additionally, the record establishes that subsequent to the divorce there was everincreasing bickering between Inez and Walter, occurring on several occasions in the presence of the children when Walter came to take the children for the weekend into his new home. The older child was said to be already showing symptoms of "divided loyalty".
In short, I find ample evidence to support the action of the trial court. What is in the "best interest" of a minor child is not always capable of being proved with mathematical certainty. Many factors must be considered and weighed by the trial judge, whose responsibility in this type of proceeding is generally difficult and quite frequently most delicate in nature. In the instant case, an experienced and capable judge not only heard the parties, but of equal importance had the opportunity to observe their demeanor on the witness stand. All we can do here is read a cold record, whereas the trial court not only heard the parties, but figuratively speaking looked into their very hearts. Under these circumstances I am disinclined to second guess the trial judge on which course of action is for the best interest of the Tanttila children, and even if I disagreed with his decision (which I do not), I would not substitute my judgment for his.
Nor am I impressed, as the majority appears to be with Walter's "willingness to do more than at present required, in the way or providing `baby sitters' support in order to have his children available for visitation rights as originally contemplated." As I understand it, Walter suggests that his present wife should and would quit her outside employment, thereby making it possible for her to "baby sit" with Inez's three children while Inez herself was working. No doubt Walter is sincere in this offer and perhaps such arrangement would be preferable to having the children cared for by a stranger, but the much better course of action, so clearly discerned by the trial court, is to have the three very young children cared for by their own mother.
I would affirm the judgment.
I am authorized to say that MR. JUSTICE HALL joins in this dissent.