June 26, 2019

Colorado Court of Appeals: In re the Marriage of White and Martin

on June 10, 2010.

Post-Dissolution of Marriage—Motion to Modify—Child Support—Change in Residence.

In this post-dissolution of marriage matter between David D. Martin (father) and Holly Budean White (mother), father appealed from the order modifying child support. The order was affirmed.

When the parties’ marriage was dissolved, their child lived primarily with mother, and the court ordered father to pay child support. In June 2007, when the child was nearly 16 years old, mother agreed that the child could live primarily with father, and that he could stop paying child support. Father, in turn, agreed that mother would not pay child support, provided that the child continued to have overnight visits with mother. However, in August 2008, father filed a motion to modify child support, asking that mother pay child support and contribute to the child’s uninsured medical expenses. In pertinent part, the court found that the child lived primarily with father beginning in June 2007 and ordered mother to pay child support as of the date father filed his motion, August 2008, taking into account equitable considerations.

Father contended that the trial court was required to modify mother’s child support obligation as of the date the parties allowed the child to move to father’s residence. The general rule is that the provisions of any decree regarding child support may be modified only as to installments accruing after the filing of the motion for modification. CRS § 14-10-122(5) is an exception to this general rule. Under the plain meaning of § 14-10-122(5), when a mutually agreed change of physical care occurs and the court modifies the provision for child support of the obligor under an existing child support order, it must modify that provision as of the date the parties allowed the child to move. Here, because mother was not the obligor under the existing child support order, CRS § 14-10-122(1)(d) prohibited the court from ordering mother to pay child support installments accruing before father filed the motion for modification. Accordingly, the court did not err when it did not order mother to pay child support retroactively to the date of the change of custody.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.
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