In Re the Marriage of Henne , 1980 Colo. App. LEXIS 753 ( 1980 )

COYTE, Judge,

dissenting: I dissent.

I concur with the majority opinion on all issues except its treatment of the appeal on the custody issue. The appeal of the order of the trial court taking custody from the mother should also be reversed.

The mother had no notice of the proceedings and the ex parte order is void. Parker v. Parker, 142 Colo. 416, 350 P.2d 1067 (1960). This void order uproots the children from the State of California where they are living with the mother, and places them, as the order states, “temporarily” with the father, where the Department of Social Services would assume physical custody of the children and arrange for their initial placement with visitation being not less than once a week upon ultimate determination by the parties and the court.

Thus, in practical effect, the order takes the children from their mother until the bureaucratic process grinds to an eventual finality. To the law, this may be a “temporary” order, but in the lives of those involved, it is not.

Furthermore, the majority is reading too much into Olson v. Priest, 193 Colo. 22, 564 P.2d 122 (1977). The case was before the Supreme Court on an original proceeding. That mere circumstance cannot be used as precedential authority for the proposition that an ex parte custody order is not ap-pealable. Temporary maintenance and temporary child support are reviewable orders. By what magic is this void child custody order also not reviewable?

I would review the order as to the custody and since it was entered without notice to the mother, would find it void.