July 21, 2019

Colorado Court of Appeals: When Voluntary Parenting Time Change Occurs, District Court May Order Retroactive Child Support

The Colorado Court of Appeals issued its opinion in In re Marriage of Garrett and Heine on Thursday, November 1, 2018.

Family LawPost-DissolutionModification of Child SupportRetroactive Child SupportParenting Time.

In this post-dissolution of marriage proceeding, both parents moved to modify parenting time. The district court entered a week on, week off parenting schedule and modified child support accordingly. In June 2015 the parents mutually agreed to modify this schedule so father would be the primary residential parent and mother would have parenting time every other weekend and one evening per week. Accordingly, father began paying mother a reduced amount of child support and then moved to modify child support in July 2016. The parties again agreed to change parenting time in February 2017, with mother the primary residential parent of one child and father the primary residential parent of the other child. The district court found that mother owed retroactive child support based on the substantial changes in parenting time beginning in June 2015, and it offset that amount against father’s current child support obligation.

On appeal, mother contended that the district court erred when it imputed income to her without finding she was voluntarily underemployed. If a parent is voluntarily underemployed, child support must be calculated based on the parent’s income. Here, the court did not explicitly find that mother was voluntarily underemployed and shirking her child support obligation and the record does not support such findings. Nor did the court make any findings concerning the reasonableness of mother’s efforts to secure a full-time position at her previous salary. Thus, the case was remanded to the district court for additional findings, reconsideration of mother’s income, and recalculation of child support accordingly.

Mother further contended that the district court erred in applying C.R.S. § 14-10-122(5) and ordering her to pay retroactive child support back to June 2015. When a voluntary change in parenting time occurs, a court may retroactively enter a child support order against either parent without regard to the parent’s status as obligor or obligee under the existing child support order. However, the record is not clear on whether the district court imposed the retroactive child support obligation as an act of discretion or imposed it under the mistaken view that it was required to do so. On remand, the district court must set forth the factors it considers in determining whether to impose such an obligation.

The order retroactively establishing a child support obligation for mother was affirmed. The portion of the order determining mother’s income was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

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.

Colorado Supreme Court: Laches Can Apply as Defense to Child Support Claim

The Colorado Supreme Court issued its opinion in In re Marriage of Johnson on Monday, September 26, 2016.

Interest on Child Support Debt—Laches.

The Supreme Court considered whether a father may rely on the doctrine of laches to defend against a mother’s claim for the interest on his child support debt. The Court concluded that laches may be asserted as a defense to a claim for interest on child support arrearages. The Court therefore reversed the judgment of the Court of Appeals, which had concluded otherwise, and remanded this case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

HB 16-1165: Changing Colorado Child Support Guidelines Pursuant to Commission’s Findings

On January 28, 2016, Reps. KC Becker & Lois Landgraf and Sen. Larry Crowder introduced HB 16-1165 – Concerning Statutory Changes Based on the Recommendations in the Report of the 2013-2015 Colorado Child Support Commission. The bill was introduced in the House Public Health Care & Human Services Committee, where it was amended and referred to the House Committee of the Whole for Second Reading. The bill passed Second Reading with amendments in the House and passed Third Reading unamended. In the Senate, it was introduced in the Health & Human Services Committee, where it passed through unamended. The bill passed Second and Third Reading in the Senate with no amendments and is now on its way to the governor for signature.

This bill makes several changes to the Colorado child support guidelines and related statutes. First, the bill permits the State Child Enforcement Agency to attach an administrative lien on insurance claim payments, awards, or settlements to satisfy and obligor’s past-due child support, past-due spousal maintenance, or a combination of the two. The bill applies to all child support and spousal maintenance obligations, regardless of when the obligation was ordered by the court. The lien may be placed on insurance claim payments made payable to the obligor that are in excess of $1,000, resulting from personal injury, wrongful death, or workers’ compensation claims. The bill exculpates insurance companies and their agents for any good faith conduct made pursuant to the proposed amended section of the Colorado Revised Statutes.

Second, the bill makes a number of changes to the child support guidelines contained in C.R.S. § 14-10-114, including: (1) requiring a deduction from a parent’s gross income prior to calculating child support for the actual amount paid for another child’s court ordered support (regardless of where the other child is living), while applying the gross income calculation of paragraph (b) of the subsection to parents whose other child(ren) is/are living with the parent; (2) amending the definition of “shared physical care” by including as a reason for deviating from the child support guidelines instances where one parent spends substantially more time with the child than is reflected by a calculation of the number of overnights; (3) allowing a court to not require a parent to include a child or children on a health insurance policy where the policy’s premium payment is 5 percent of the parent’s gross income (reducing from 20 percent); and (4) requiring parents to exchange financial information relevant to child support calculations on changes that have occurred since the entry of the child support order.

Third, the bill establishes a five-year prohibition on retroactive modification of child support based on change in physical custody pursuant to C.R.S. § 14-10-122.

Fourth, the bill requires service by a single publication not less than five days prior to any hearing on paternity adjudication for any party (i.e., natural mother, each presumed father, and each man alleged to the natural father) who does not reside in Colorado and whose place of residence is not known, or when the person cannot be found within Colorado after due diligence.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Parental Rights Terminated As of Date of Juvenile Court’s Relinquishment Order

The Colorado Court of Appeals issued its opinion in In re Marriage of Rohrich on Thursday, March 10, 2016.

Mother’s and Father’s marriage ended in 2008. Parenting time was equally allocated and Father was ordered to pay $101 monthly in child support. In 2012, Mother relocated to South Dakota with the children, and Father’s support obligation was increased to $288 monthly. When the child support enforcement unit moved again in 2013 to modify Father’s support, the parties entered into mediation and reached an agreement that Father would relinquish his parental rights and the children would be adopted by Mother’s new husband.

In November 2013, Father petitioned the juvenile court to relinquish his parental rights, which petition was granted, and then moved in the dissolution court to terminate his child support obligation. The district court granted his motion and terminated the child support obligation as of the date Mother accepted his proposal to terminate his parental rights.

Mother appealed, arguing the district court erred in determining that Father was “effectively no longer a parent” as of the date he agreed to relinquish his parental rights and instead argued that the termination of Father’s support duty must be found under the Colorado Children’s Code. Mother alternatively contended the district court erred in retroactively terminating Father’s child support obligation under the Uniform Dissolution of Marriage Act.

The Colorado Court of Appeals agreed with both arguments. The court noted that Father’s agreement to end his rights did not terminate his child support obligation, which could only end when his rights were formally relinquished. The court also held that the district court erred in relying on the UDMA to retroactively modify Father’s support obligations, noting that because the children were spending more time with Mother, the support obligation should have been increased, not decreased.

The court of appeals reversed and remanded.

Colorado Court of Appeals: Foreign Judgment Must Comport with United States Law Prior to Enforcement

The Colorado Court of Appeals issued its opinion in In re Marriage of Lohman on Thursday, September 24, 2015.

Dissolution of Marriage—Foreign Judgment—Personal Jurisdiction—Uniform Interstate Family Support Act—Due Process—Support Order.

Husband and wife (a native of England) married in Colorado in 1997. Their child was born the following year. Wife moved back to England with the child in 2008 after the parties’ separation. Husband remained in Colorado. Wife petitioned for divorce in England and served husband in Colorado. Husband did not respond or participate in the English court, which entered judgment against husband for £638,000 (approximately $1,010,911). Wife then filed a notice of registration of foreign support order with the Grand County District Court, which sustained the notice of registration and ordered enforcement of the English judgment.

On appeal, husband contended that for purposes of enforcement by a Colorado court, the English court lacked personal jurisdiction over him and, therefore, the English judgment cannot constitutionally be recognized. Pursuant to the Uniform Interstate Family Support Act, the district court was required to determine not only whether the English court had personal jurisdiction over husband under the laws of England, but also whether enforcement of the English court’s order by a U.S. court was permissible under the Due Process Clause of the U.S. Constitution. Accordingly, the district court was required to adjudicate whether husband had sufficient minimum contacts with England to render constitutional (under U.S. law) the assertion of jurisdiction over him by the English court. Because the district court did not do so, its orders were reversed.

Husband also contended that the district court erred in determining that the portion of the English judgment awarding wife £423,000 to purchase a home constituted support rather than a transfer or award of property. The court’s finding that the English judgment represented a support order, rather than a property equalization payment, was not clearly erroneous and may not be overturned.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Laches Does Not Apply to Actions to Recover Past-Due Child Support

The Colorado Court of Appeals issued its opinion in In re Marriage of Johnson on Thursday, October 23, 2014.

Child Support Arrearages.

Father’s marriage to mother ended in 1983. He was ordered to pay $400 in monthly child support for their two children. In September 2012, mother requested that judgment enter for $893,285 in child support arrearages and interest. Father objected, asserting that under the applicable twenty-year statute of limitations, mother could collect arrearages accruing only after September 1992. He requested a hearing to make that determination. The magistrate entered judgment for mother for the full amount requested, without addressing father’s contention or his hearing request.

Father petitioned for district court review of the order. The court ruled that the twenty-year statute of limitations applied, vacated the magistrate’s order, and remanded the matter for an evidentiary hearing. After the hearing, the magistrate rejected father’s argument that child support had terminated when their last child turned 19 in July 1995 and that lachesbarred mother’s right to collect interest. The magistrate entered judgment for $23,260 for arrearages between September 1992 and July 1997, when the parties’ last child turned 21, plus interest, resulting in a judgment of $155,000. The district court adopted the order.

On appeal, father argued that child support automatically terminated on July 17, 1995 and that the finding of $23,260 in arrearages lacked record support. At the time of the dissolution, child support was owed until a child emancipated, which presumptively was at age 21. In 1991, the applicable statute was amended to provide that emancipation occurs and child support terminates when a child turns 19. The amendment applied to all child support obligations established before July 1, 1991. Therefore, father’s child support obligation terminated on July 17, 1995, when the last child turned 19.

Father also argued that it was error to hold that laches did not apply as to the right to collect interest. Under CRS § 14-14-106, interest is specified on arrearages in child support and it is not discretionary. The Court of Appeals has previously held that laches does not apply “to actions for the recovery of past due child support.” At the hearing, father had acknowledged that he owed $4,800 in arrearages for the period between July 1994 and July 1995. On remand, the court was ordered to calculate interest under CRS § 14-14-106 on the $4,800 and enter judgment for mother accordingly.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Wife’s Failure to Disclose Financial Records Not Fraud or Misconduct Under Rule 16.2(b)(2)

The Colorado Court of Appeals issued its opinion in In re Marriage of Roddy and Betherum on Thursday, July 31, 2014.

Modification of Child Support—Abuse of Discretion—Financial Disclosures—CRCP 16.2(e)(10)—CRCP 60(b)(2) and (5).

When the parties’ 2003 decree of dissolution was entered, the court adopted their stipulation that wife would be the primary residential parent for the parties’ minor child and husband would pay her $3,000 in monthly child support. Eight years later, husband moved to modify child support on the bases that his parenting time had increased and his income had decreased since the order. After a hearing, the district court increased husband’s child support obligation to $4,604 per month.

On appeal, husband contended that the district court erred in its child support calculation. Because husband’s appeal from the child support order was untimely, this part of husband’s appeal was dismissed.

Husband also argued that the district court abused its discretion when it denied his motion for post-trial relief after he established that wife had withheld financial information. The plain language of CRCP 16.2(e)(10) does not allow a court to re-determine a child support award. Further, although husband’s post-hearing evidence demonstrated that wife was “inconsistent” insofar as her finances were concerned, the court already made a finding at the child support hearing that wife’s testimony in that regard was “inconsistent” and “incredible.” Additionally, the parties did not dispute that their combined gross incomes exceed the uppermost guideline limits. Therefore, an exact income for wife was not required, because the court had discretion to deviate from the guidelines and enter an appropriate support order. As a result, the district court did not err by denying husband’s motion for relief.

Husband further argued that the court should have granted relief under CRCP 60(b)(5). Because husband alleged that wife either fraudulently failed to disclose or misrepresented her income, his motion fell squarely under CRCP 60(b)(2). In such cases, the residual provision of CRCP 60(b)(5) is not applicable. The appeal from the child support order was dismissed and the post-decree order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Volunteers Needed for Clinic on Collecting Child Support

The DBA Access to Justice Committee will be providing a training for the presenters of the newly created “How to Collect Child Support” public clinic. This clinic is a great way to get involved with the Denver community, gather information, and teach basic techniques for collecting support. The child support collections training will be on June 13 from 8:30 a.m. to 10 a.m. at the CBA offices, 1900 Grant St., 9th floor. One CLE credit available. Contact Meghan Bush to register.

Tenth Circuit: Willful Underemployment Not Defense to Failure to Pay Child Support

The Tenth Circuit Court of Appeals issued its opinion in United States v. Fuller on Tuesday, May 13, 2014.

Fuller is the father of three children raised by Dolores Jones. When Jones and Fuller divorced, Fuller was ordered to pay $347 per month in child support. However, Fuller almost never fulfilled his child support obligation, and eventually was brought to trial in district court under the Child Support Recovery Act for $54,478.36 owed in child support. Fuller moved for acquittal after the government’s case-in-chief and at the close of all evidence, but the court reserved ruling on the motions. Several weeks after the verdict issued, the district court denied both of Fuller’s motions. Fuller appealed the denial of his first motion to acquit on two grounds: (1) the court erred by relying on an unconstitutional statutory presumption of his “ability to pay” child support, and (2) without the presumption, the government’s evidence was insufficient to prove that he “willfully” failed to pay.

The Tenth Circuit evaluated the district court’s denial and determined that the court did not rely on the presumption of Fuller’s “ability to pay.” Indeed, the district court noted that his income was insufficient to pay the child support obligation, but this was due to Fuller’s willful underemployment. Both of Fuller’s arguments failed and the Tenth Circuit affirmed the judgment of the district court.

Colorado Court of Appeals: Military Allowances for Food and Housing Appropriately Included in Temporary Child Support Calculations

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities of L.K.Y. on Wednesday, July 3, 2013.

Temporary Child Support.

In this action to determine parental responsibilities for L.K.Y. and J.R.Y., who are the children of Angela Francis Young and Karen Elizabeth Peabody, Peabody appealed from the order for temporary child support. The order was affirmed.

The parties entered into a domestic partnership in California in 2005 and are the parents of twins born in 2006. The parties moved to Colorado with their children in 2008. In 2011, a California court dissolved the parties’ domestic partnership, and Peabody petitioned the Colorado district court to allocate parental responsibilities. Young moved for temporary child support.

Following a hearing, a district court magistrate awarded temporary child support and denied Peabody’s petition for review. On appeal, Peabody argued it was error to include Young’s military allowances for housing and food, as well as part of Young’s income, for purposes of calculating temporary child support. Peabody’s petition was to deduct the allowances as additional factors that diminish the children’s basic needs under CRS § 14-10-115(11)(b). The Court of Appeals disagreed.

CRS § 14-10-115(5)(a)(I)(X) includes in “gross income”: “[e]xpense reimbursements or in-kind payments received by a parent in the course of employment . . . if they are significant and reduce personal living expenses.” Young, who is serving in the U.S. Army, lived off base and received housing and food allowances in addition to her salary. The allowances were included in calculating Young’s gross income over Peabody’s objection.

The Court found no error. The allowances, as admitted by Peabody, reduced Young’s personal living expenses and therefore were part of Young’s gross income under the plain language of the statute. Peabody argued that the allowances should have been deducted from the parties’ basic child support obligation as resources of the children; however, the Court noted that the allowances were paid to Young as part of her salary to spend as she chooses. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Collection of Arrearages of Child Support and Maintenance from ERISA Account Proper Under Qualified Domestic Relations Order

The Colorado Court of Appeals issued its opinion in In re Marriage of Drexler and Bruce, Jr. on Thursday, March 28, 2013.

Dissolution of Marriage—Retirement Funds—Employee Retirement Income Security Act—Qualified Domestic Relations Order—Noncompliance Order.

Husband appealed the trial court’s judgment holding that his retirement funds were not exempt from assignment under a qualified domestic relations order (QDRO) to satisfy domestic support arrearages, and sanctioning husband for noncompliance with the QRDO transfer. The judgment was affirmed.

The parties’ marriage ended in 2010 and husband was ordered to pay wife $5,000 per month in child support and $12,000 per month in maintenance for four years, followed by $8,000 per month for two years. Husband, a tax attorney and partner at a large law firm, did not comply, resulting in the accumulation of $101,486 in support arrearages and the suspension of his law license. Wife then moved for a QDRO to collect the arrearages from the funds held in husband’s Employee Retirement Income Security Act (ERISA) retirement plan at the law firm.

Husband objected, arguing that Colorado and federal law prohibited assigning his retirement funds to wife to pay the arrearages. The trial court disagreed and ordered the transfer. Husband did not comply, so the court ordered that the QDRO transfer be completed without his signature, that he reimburse wife for her attorney fees, and that the suspension of his previous contempt sentence for violating other court orders be lifted. He appealed.

ERISA generally prohibits assignment or alienation of retirement plan funds. However, both ERISA and the Internal Revenue Code (IRC) provide that the anti-alienation provisions do not apply to funds assigned to a former spouse under a QDRO. A QDRO is a “domestic relations order” that assigns to an alternate payee the right to receive all or a portion of the benefits payable to a participant. Such an order is defined as made pursuant to a state domestic relations law that concerns the provision of child or spousal support, or marital property rights of a former spouse of a plan participant. Here, the QDRO was entered to satisfy husband’s unpaid obligations relating to the dissolution, and therefore originated under Colorado domestic relations law, and not, as argued by husband, under Colorado collections law.

A QDRO also may be used under ERISA to enforce maintenance and child support obligations imposed under a divorce decree. Thus, the trial court did not violate the anti-alienation provisions of ERISA and the IRC by issuing the QDRO to enforce husband’s unpaid support obligations.

Husband argued that regardless of the QDRO exception to ERISA’s anti-alienation clause, his retirement benefits are exempt under Colorado law because CRS § 13-54-102(1)(s) exempts pension or retirement fund plans, including those subject to ERISA “from levy and sale under writ of attachment or writ of execution.” The Court of Appeals agreed with wife that the statute is preempted by ERISA because it imposes limitations not imposed by ERISA. It found that CRS § 13-54-101(1)(s) conflicts with ERISA and therefore is preempted by ERISA in accordance with conflict preemption to the extent it imposes additional limitations not imposed by ERISA on a spouse’s right to receive retirement plan funds under a QDRO.

Husband also contended that the trial court erred by entering the noncompliance order without a hearing after he did not cooperate with the QDRO transfer. The Court disagreed. Husband did not request such a hearing, so there was no error in the trial court not holding one.

Summary and full case available here.