Decided June 10, 1963. Rehearing denied June 25, 1963.
From an order granting plaintiff mother permission to remove minor children from the State of Colorado, the defendant brings error.
1. DIVORCE — Children — Removal from State — Policy of Law. It is against the policy of the law in Colorado to permit the removal of a child from the jurisdiction, unless its best interests would be served thereby.
2. Children — Welfare — Matters Considered. 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 child is entitled to the love, nurture, advice and training of both father and mother.
3. Minor Children — Removal from State — Reasons — Sufficiency. Where for all practical purposes an order authorizing removal of children of the parties to another state eliminates any opportunity for visitation by the father except during summer vacations, and there being no showing of any substantial reasons of health, cultural opportunities or other advantages contributing to the best interests of the children justifying such removal, such order was erroneous.
Error to the District Court of Boulder County, Hon. J. Robert Miller, County Judge, sitting as District Judge.
Mr. GERALD A. CAPLAN, for plaintiff in error.
Messrs. WILLIAMS ZOOK, Mr. JOEL H. GREENSTEIN, Mr. WILLIAM A. TRINE, for defendant in error.
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:
"1. The primary custody of the children of the parties: Patricia, age 6; Harvey, age 4; and Margaret, age 3, shall be granted to the plaintiff. It is understood and agreed that the defendant shall have the right of reasonable visitation to consist of the following:
"a. Defendant shall have the right to have custody of the children on alternate weekends from Friday evening until Sunday evening.
"b. The defendant shall have special rights of visitation during the time when he is on vacation from his employment with the University of Colorado.
"c. The defendant shall have the right to the custody of the children for a period of not to exceed thirty days during his summer vacation from the University of Colorado.
"2. The plaintiff agrees that she will not remove the children from the jurisdiction of Colorado without permission of the Court or the defendant."
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 court, nunc pro tunc, to the 13th day of March, 1962, permitting the mother to remove the children to Sebeka, Minnesota, and, in addition, determining certain other rights as to custody and support payments. On March 30, 1962, the father filed motions to "Amend Findings and Order" under Rule 52, Colorado Rules of Civil Procedure, and for a "New Trial" under Rule 59. Colorado Rules of Civil Procedure. On May 18, 1962, the district court denied said motions.
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: "It is against the policy of the law of Colorado to permit removal of a child from the jurisdiction unless the party seeking the verdict of removal proves that the best interests of the child would be served by said removal.
"A removal of a child from the jurisdiction rests in the sound discretion of the trial court but there must be some evidence supporting a conclusion that the children's welfare and best interests will be promoted by their removal.
"The record lacks sufficient evidence to establish that the best interests of the minor children would be served by their removal from the state of Colorado. The record shows that Mrs. Tanttila's reasons for removal were for her personal conveniences only. Therefore, the granting of the motion by the trial court was an abuse of its discretion and should be reversed."
The trial court made findings which include the following:
"That the welfare of the children would be best served by allowing the mother to move to the State of Minnesota where she will be better able to rear the children, carry out her custodial responsibilities under less economic stress and mental tension, and where she will be able to spend more time with the children and give them closer personal supervision."
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:
"Where the custody of a child is awarded in a divorce proceeding, the child becomes the ward of the court, and it is against the policy of the law to permit its removal to another jurisdiction unless its well-being and future welfare would be better subserved thereby."
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.
"While ordinarily the custody of a child should not be awarded to a non-resident, nor to one contemplating immediate removal from the state, it, nevertheless, is well established that when it is conducive to the child's best interests, the court may permit it to be removed from the jurisdiction." McGonigle, supra, p. 572.
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 by either parent may be a more serious ill than to refuse it in some part those things which money can buy."
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:
"They love him very much. He loves them. * * * I have told you that they loved their father and they have been very happy to be with him here."
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 "baby-sister" 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.
MR. JUSTICE HALL and MR. JUSTICE McWILLIAMS dissent.