Opinion
May 4, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Elwood M. Haynie, Colorado Springs, for plaintiff in error.
Harden, Olson & Napheys, B. F. Napheys III, Fort Collins, for defendant in error.
SILVERSTEIN, Chief Judge.
This case was transferred from the Supreme Court pursuant to statute.
This appeal is from a final order awarding the custody of two small children to their father and also dividing the property of the parties. The wife alleges an abuse of judicial discretion in both instances. We do not agree and affirm the trial court.
As to the first question the mother argues that she should have custody of the children because she is their mother and because she is able to provide a home for them. She further argues that the father is not a fit and proper person to have custody.
The fact of motherhood gives her no special standing under Colorado law.
'* * * no party shall be presumed to be able to serve the best interests of the child better than any other party because of sex.' 1967 Perm.Supp., C.R.S.1963, 46--2--4(6).
As to her other contentions regarding custody, the court found as a matter of fact, after hearing sharply disputed evidence, that the best interests of the children dictated that they remain in their father's custody.
'* * * the finding of the trial court, if supported by the evidence, will not be disturbed by this Court even though we might have reached a different conclusion had we been the trier of the facts. Moreover, it is also our duty in such cases to search the record for evidence most favorable to the judgment of the trial court.' Adler v. Adler, 167 Colo. 145, 445 P.2d 906.
The record and evidence support the findings of the trial court. Therefore we affirm. Engleman v. Engleman, 145 Colo. 299, 358 P.2d 864.
Nor do we find an abuse of discretion in the property settlement.
'We emphasize once more that matters of alimony and property settlements between husband and wife are within the sound discretion of the trial judge, whose determination of those matters will not be disturbed if they are supported by the evidence.' Moats v. Moats, 168 Colo. 120, 450 P.2d 64.
In this case the trial court's order gave roughly two-thirds of the property to the husband who had custody of the children and one-third to the wife. Under the facts presented this was not an improper or inequitable distribution of the property.
Judgment affirmed.
ENOCH and DUFFORD, JJ., concur.