dissenting:
I respectfully dissent.
Appellate courts are reluctant to disturb trial court rulings in custody matters, see In re Marriage of Larington, 38 Colo.App. 408, 561 P.2d 17 (1976), and such rulings should not be disturbed if they are supported by the evidence. See Coulter v. Coulter, 141 Colo. 237, 347 P.2d 492 (1959). Here, the trial court found that the statutory criteria for modification of custody had been met. See § 14-10-131, C.R.S.1973. There was sufficient evidence to support this finding.
As the majority opinion indicates, most of the testimony concerned the middle child, and there was no evidence of the youngest child having behavioral or emotional problems. However, the trial court could reasonably infer from the evidence establishing lack of supervision of the older children that the mother also lacked the ability to supervise the youngest child, see People in the Interest of C.R., 38 Colo.App. 252, 557 P.2d 1225 (1976), and based on that inference could find that the lack of supervision significantly impairs the emotional development of the youngest child. In addition, it was the opinion of a psychologist who examined the mother that she was under constant pressure and needed “a great deal of time to spend alone” before she could resume her parental duties. Furthermore, evidence of the father’s ability to provide a stable home, in contrast to the instability resulting from continued custody in the mother, demonstrates the advantage resulting from a modification. Cf. In re Marriage of Larington, supra. Accordingly, I would affirm the trial court’s modification of custody.
Even if the evidence was insufficient to support a modification under § 14-10-131, C.R.S.1973, the court’s finding that it was in the best interests of the child that her custody be with the father was amply supported by the evidence. On that finding the trial court’s order should be affirmed.
Courts are required by statute, § 14-10-124, C.R.S.1973, to determine custody in accordance with the best interests of the child. But, here, no best interests determination was made at the time of the 1977 custody order. The parties had entered into a written agreement which provided, among other things, that the wife would have the custody of the children. In its decree of dissolution, the court did not address the matter of custody, but merely *129found this agreement “not unconscionable as to support, maintenance, and property,” and ordered the parties to perform its provisions.
Where, as here, there was no adversary hearing and no best interests determination at the time of the original custody order, cf. In re Marriage of Larington, supra, a motion for change of custody should be decided on a “best interests of the child” standard, § 14-10-124, C.R.S.1973, rather than the “changed circumstances” test of § 14-10-131, C.R.S.1973. See In re Custody of Ross, 47 Or.App. 631, 614 P.2d 1225 (1980); Williams v. Zacher, 35 Or.App. 129, 581 P.2d 91 (1978); Brooks v. Brooks, 20 Or.App. 43, 530 P.2d 547 (1975). See also Noonen v. Noonen, 166 Colo. 331, 443 P.2d 723 (1968) (court can modify support order even without changed circumstances where first order resulted solely from an agreement and was not an order entered after a contested hearing). Once a best interests determination has been made, proceedings for subsequent modifications should be governed by § 14-10-131, C.R.S.1973.
Since I would affirm the order changing the custody, I would also affirm the court’s denial of the mother’s request for attorney’s fees and suit money. Their allowance is a matter within the sound discretion of the trial court. With the father being the prevailing party, there would be no abuse of discretion in refusing the mother’s request. See In re Marriage of Peterson, 40 Colo.App. 115, 572 P.2d 849 (1977); Krall v. Krall, 31 Colo.App. 538, 504 P.2d 681 (1972).