Kuyatt v. District Court of the First Judicial District

817 P.2d 116, 1991 Colo. LEXIS 561, 1991 WL 179976

• Court: Supreme Court of Colorado
• Decided: September 16, 1991
• Docket: No. 91SA222
• Status: Published

Opinion

Justice ERICKSON

delivered the Opinion the Court.

This is an original proceeding pursuant to C.A.R. 21. We issued a rule to show cause in this original proceeding after a petition for a custody evaluation was filed and denied without specific findings in a dissolution of marriage proceeding. We now make the rule absolute. Custody of Carolyn Kuyatt, age 4, and Melissa Kuyatt, age 7, was in issue. Petitioner Susan Annette Kuyatt’s motion for a custody evaluation was denied without specific findings by the trial court to support the refusal of the requested custody evaluation.

The impoverishment of the petitioner and the method proposed for payment of the costs of the evaluation were not disputed.

In Hernandez v. District Court, 814 P.2d 379 (Colo.1991), we held that the word “shall” in section 14-10-127(l)(a)(I), 6B C.R.S. (1990 Supp.), required that the motion be granted in the absence of a finding that the motion was made for the purpose of delay. See also In re Marriage of Sepmeier, 782 P.2d 876 (Colo.App.1989). No such finding was made in this case.

Accordingly, the rule to show cause is made absolute and the case is remanded to the district court with directions to order a custody evaluation and for entry of appropriate orders for the payment of costs in accordance with the directions set forth in Hernandez v. District Court.