Opinion
April 21, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 654
John W. Lentz, Samuel A. Anderson, Littleton, for plaintiff in error.
Myrick, Criswell & Branney, John A. Criswell, Englewood, for defendant in error.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado, and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties to this action obtained a divorce decree in the State of Alabama in 1962 and, by stipulation made a part of that decree, were each awarded the custody of one of their two boys. Liberal visitation rights were arranged and both boys were with their mother for the summer of 1966.
The mother (plaintiff in error and plaintiff below) remarried during that summer and, prior to the time that the older boy was to be returned to his father's custody, filed this complaint in Colorado asking a change of custody of this boy to her, alleging a change in circumstances and that it would be to the boy's best interests that the custody be changed.
The father was, at that time, a resident of the State of New York, and was served in that state. He came to the State of Colorado to investigate the matter and was personally served in his state, after which he removed the boy from the state. He then went back to the Alabama Court and asked that custody of both boys be given to him. The mother appeared by counsel under a plea of abatement in the Alabama Court. However, abatement was not granted, and after a hearing on the father's request for change of custody, the Alabama Court suspended the visitation rights of the mother as to the older child and gave her 60 days in which to show cause why the custody of the younger child should not be transferred to the father.
In the meantime, the father filed a motion to dismiss, for want of subject matter jurisdiction in the Colorado action, which was heard in March of 1967 and resulted in an order of the court which stated:
1. The parties were represented by counsel.
2. That the facts surrounding the controversy took place in the State of Alabama.
3. That an action was pending in the State of Alabama on the same issues.
4. That the child in question was not physically within the jurisdiction of the Colorado court.
5. That the action should be litigated where the child was presently located and where more meaningful inquiries and investigations could be made.
6. That in the interest of justice the action should be heard in the State of Alabama.
The court then dismissed the action.
We rule that the trial court's dismissal of this action was proper under the circumstances. The applicable law is quite clearly set forth in the case of Fahrenbruch v. People ex rel. Taber, Colo., 453 P.2d 601. The factual situation was very similar to the instant case. In that case the court stated at 605--606:
'Contrary to the mother's assertion, the domicile of the children remained that of their legal custodian, their father, and their presence in Colorado on a visit with the father's consent did not change their domicile from that of their father to that of their mother. It is well-settled that in the event of divorce the domicile of the child follows that of the parent to whom custody is decreed. Evans v. Evans, Supra. The trial court was correct under the circumstances of this case in holding that the Nebraska Court's jurisdiction continued over the children and that the Colorado Court should not interfere with that jurisdiction. Any change of circumstances sufficient to warrant a change of custody should be presented to the Nebraska Court.'
See also, McMillin v. McMillin, 114 Colo. 247, 158 P.2d 444, 160 A.L.R. 396; Evans v. Evans, 136 Colo. 6, 314 P.2d 291; Lynn v. People, 158 Colo. 282, 406 P.2d 96.
The mother contends that the facts in the present case exempt it from the rule in Fahrenbruch, supra, in that there was no evidentiary hearing held on the question of jurisdiction, and that the mother's complaint in the Colorado action shows a compelling need to protect the interests of the child from the orders of the Alabama Court.
Since counsel for the mother has not furnished us with a transcript of the hearing of March, 1967 on the motion to dismiss, we must assume that the proceedings were proper and the court had before it sufficient evidence to indicate that it was without jurisdiction in this matter. Howard v. Lester, 153 Colo. 199, 385 P.2d 121.
We have reviewed the complaint filed by the mother and find that in substance it only alleges a change of circumstances, and that it would be in the best interests of the child for custody to be returned to his mother. We rule that the allegations of the complaint, even though they are taken as true, fall far short of requiring the Colorado Courts to take jurisdiction as a matter of necessity for the protection of the child.
Judgment is affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.