In re the Marriage of Mendoza

KELLY, Judge. Linda Pilcher Mendoza appeals an order of the trial court granting her former husband’s petition for modification of custody of the parties’ youngest child, and denying her motion for attorneys’ fees and defined visitation rights. We reverse and remand for further proceedings. The mother contends that there was insufficient evidence to warrant the trial court’s conclusion under § 14-10-131(2), C.R.S.1973, that the present environment of the youngest child significantly impairs her emotional development and that a change of environment would be to her advantage. She argues that the evidence of her inability properly to supervise the older children of the parties was irrelevant to the questions which must be determined under the statute prior to entry of an order modifying the custody of the youngest child. We agree. By agreement incorporated into the decree of dissolution, the mother retained custody of the three minor children of the parties. There was no appeal from this order. After the dissolution, the oldest child became emancipated. By petition for modification, the father sought custody of the two younger children, aged 15 and 7 years. The trial court found both parents to be fit; awarded custody of the middle child to the mother, and custody of the youngest child to the father. The death of the middle child pending this appeal renders moot the issues as to her custody. The major portion of the testimony at the custody hearing focused on the middle child. The mother conceded that after the child entered junior high school, she could not control her daughter, and the child began to experience peer problems, to miss school frequently, and to earn poor grades. At the mother’s request, the father assumed custody for six weeks, during which time the child’s attitude, school attendance, and academic performance improved. A mental health worker who counseled the fifteen-year-old child testified that the mother was under constant pressure, partly attributable to her new husband; and that she was unable to confront her problems in a timely fashion, resulting in inconsistent parenting. His written report to the Morgan County Social Services Department indicates that such inconsistency causes conflicts in children; however, there was no testimony that the youngest child displayed any emotional problems. Indeed, in his answer brief, the father concedes that there is no evidence that the youngest child has shown any of the behavioral problems afflicting her older sisters. Based on the express wishes of the middle child, the trial court concluded that it was in her best interests to remain in the custody of her mother. Nevertheless, the trial court found that the present environment of the youngest child significantly impaired her emotional development, and accordingly, her custody was changed to her father. The findings in support of this change were based solely on the mother’s inability to discipline the children as well as the father could, particularly in relationship to their schooling, and upon the father’s remarriage and stable home. “Had this matter been before the court for an original custody determination pursuant to §§ 14-10-123 and 124, C.R.S. 1973, awarding the custody in the first instance to the [father] might have been a proper exercise of judicial discretion. However, that was not the situation before the trial court .... This matter was before the court on a motion for modification of the prior custody decree, [128] and determination of such a motion is controlled by the provisions of § 14-10-131(2), C.R.S.1973. “Although appellate courts are reluctant to disturb rulings of the trial court in custody matters, Christian v. Randall, 33 Colo.App. 129, 516 P.2d 132, the statute is clear, and the trial court must comply with its provisions.” In re Marriage of Larington, 38 Colo.App. 408, 561 P.2d 17 (1976). Here, as in Larington, the court’s findings do not indicate endangered physical health or impairment of emotional development as required by the statute. And, even if there were such findings, the evidence would not support them. Hence, the order changing custody of the youngest child cannot stand. The mother also contends that the trial court abused its discretion in denying her motion for attorneys’ fees under § 14-10-119, C.R.S.1973 (1979 Cum.Supp.). There is evidence in the record on which the trial court could properly have based an award of attorneys’ fees to the mother. However, the trial court made no written findings of fact in support of its denial of an award. Accordingly, we have no basis on which to review the ruling. The order changing the custody of the youngest child from the mother to the father is reversed, and the cause is remanded with instructions to reinstate the original order granting custody to the mother, and for reconsideration and entry of findings and order on the mother’s motion for attorneys’ fees. PIERCE, J., concurs. VAN CISE, J., dissents.