2019 COA 153
Colo. Ct. App.2019Background
- Unmarried parents of one child; father worked as a cardiologist, closed his private practice in 2016 and took employment with Healthy Connections, Inc. (HCI).
- Father’s HCI compensation: $150,000 salary plus $200,000 annual nonqualified deferred compensation that is unfunded, subject to forfeiture, payable only upon retirement at age 65, not controlled or currently accessible by father.
- Mother moved to increase child support claiming deferred compensation should be included in father’s income; magistrate excluded the deferred compensation and modified support based on salary only; juvenile court adopted the magistrate’s order.
- Mother also sought reallocation of PRE (parental responsibilities evaluation) costs and attorney fees related to a prior parenting-time proceeding; magistrate denied reallocation and refused to revisit parenting-time attorney fees at the child-support hearing.
- Court of appeals: affirmed exclusion of deferred compensation and denial to reconsider parenting-time attorney fees/reallocation (in part), reversed the denial of mother’s request for attorney fees incurred in the child-support proceedings, and remanded to determine amounts (including appellate fees).
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether nonqualified deferred compensation is "income" for child support | Deferred compensation earned during obligation period should be counted as income even if not yet paid | Deferred pay is a contingent, unfunded promise not available to meet current expenses, so not income | Deferred nonqualified compensation not income where parent lacks present access or control; excluded from gross income |
| Reallocation of PRE costs (90% to father) | PRE costs should be reallocated to father | Magistrate properly declined; issue not preserved/argued on appeal | Affirmed — court did not address in depth because mother abandoned argument on appeal |
| Consideration of attorney fees from the parenting-time hearing at the child-support hearing | Fees from parenting-time hearing were reserved and should be reconsidered at later hearing | Mother failed to list the fee claim in the JTMC and did not preserve issue; magistrate properly refused to consider it later | Magistrate did not abuse discretion in refusing to revisit parenting-time attorney fees at the child-support hearing |
| Award of attorney fees for child-support modification (and appellate fees) | Mother entitled to fees under §19-4-117; maternal grandfather’s payments relevant | Court considered both parties’ finances, overlitigation, and third-party payments; each party should bear own fees | Trial court’s denial of fees was an abuse as mother is entitled to reasonable fees; remanded to determine amounts (including appellate fees), but only for fees mother actually paid |
Key Cases Cited
- In re Marriage of Mugge, 66 P.3d 207 (Colo. App. 2003) (employer pension contributions not income until employee can actually receive them)
- In re Marriage of Davis, 252 P.3d 530 (Colo. App. 2011) (employer 401(k) and insurance contributions not income when employee lacks option to receive as wages)
- In re Marriage of Tooker, 444 P.3d 856 (Colo. App. 2019) (benefits not income where paid directly to third party and not available for living expenses)
- In re A.M.D., 78 P.3d 741 (Colo. 2003) (inheritance principal is income only if used to meet living expenses or increase standard of living)
- Severn v. Severn, 567 S.W.3d 246 (Mo. Ct. App. 2019) (deferred compensation not income where contributions are not available to satisfy child support obligations)