July 22, 2018

Colorado Court of Appeals: Under Parties’ Circumstances, District Court was Correct in Finding No Presumptive Child Support Amount Existed

The Colorado Court of Appeals issued its opinion in In re Marriage of Boettcher on Thursday, March 8, 2018.

Post-Dissolution—Modification of Child Support—Child Support GuidelinesPresumptive AmountDiscretion—RetroactiveAttorney Fees.

The parties’ dissolution of marriage agreement that no child support would be owed by either of them was incorporated into the decree. Mother subsequently moved to modify child support, alleging changed income resulting in more than a 10% change in the amount of support that would be due. The district court ordered father to pay mother child support of $3,000 per month as of the date she moved to modify, as well as 70% of mother’s attorney fees.

On appeal, father argued that the district court erred by determining there was no rebuttable presumptive child support obligation when the parents’ combined incomes exceed the highest level of the statutory income schedule, $30,000. He argued that for combined incomes above this amount, the child support obligation at the highest level is the presumptive amount, such that any greater award constitutes a guidelines deviation. The statute’s plain language does not support this argument, but rather states that, in this circumstance, the judge may use discretion to determine child support, but that the obligation must not be less than it would be based on the highest level. Further, deviation does not apply when the court awards more than the amount of support from the schedule’s highest level. Here, father alone earns $92,356 per month and the parties together earn $105,699 per month. The district court was correct in finding that there was no presumptive child support amount under these circumstances, that there was a minimum presumptive amount under the guidelines, and that it could use its discretion to determine a higher amount. Further, the court made sufficient findings concerning the relevant statutory factors and properly exercised its discretion.

Father also argued that the court erred by retroactively modifying the child support back to the date that mother moved to modify. A child support modification should be effective as of the filing date of the motion unless the court finds this “would cause undue hardship or substantial injustice.” Father did not argue that applying the statute would cause undue hardship or substantial injustice, and the district court did not abuse its discretion.

Lastly, father argued it was an abuse of discretion for the court to award mother a portion of her attorney fees without making sufficient findings. The district court is afforded great latitude in apportioning costs and fees appropriate to the circumstances in a given case. The findings were amply supported by the record.

Mother contended the appeal was frivolous and requested appellate attorney fees. The court of appeals denied her request.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

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