2018 COA 154
Colo. Ct. App.2018Background
- Parents divorced in 2008; two children. Multiple agreed changes to parenting time in 2015 and 2017 shifting primary residential care between mother and father.
- June 2015: parents agreed father would be primary residential parent; father reduced his child support payments accordingly. Father later moved to modify child support (July 2016).
- February 2017: parents again changed care such that the parents each became primary residential parent for one child; district court held a March 2017 hearing and set child support using an imputed income for mother.
- District court imputed $6,000/month to mother, found mother owed $21,389 in arrears (dating back to June 2015), offset those arrears, and ordered revised monthly payments from father to mother going forward.
- Mother appealed, challenging (1) the imputation of income to her without explicit findings of voluntary underemployment, and (2) the court’s authority to impose retroactive child support on a parent who was the obligee under the prior order.
Issues
| Issue | Plaintiff's Argument (Garrett) | Defendant's Argument (Heine) | Held |
|---|---|---|---|
| Whether the court properly imputed $6,000/mo to mother without finding voluntary underemployment | Garrett: Court erred; no explicit finding she was voluntarily underemployed or shirking support obligation | Heine: Mother had prior earnings and market opportunities justifying imputation | Reversed and remanded — court must make specific findings applying Martinez factors before imputing income |
| Whether a court may retroactively establish a child support obligation against a parent who was the obligee under the existing order when parenting time voluntarily changes | Garrett: Statute allows retroactive modification only as to the then-obligor; cannot retroactively make the obligee an obligor | Heine: 2013 statutory amendment permits courts to retroactively establish support against either parent when care changes | Affirmed in part — under §14-10-122(5) (as amended 2013) a court may retroactively enter a child support order against either parent as of the date physical care changed |
| Proper temporal scope for retroactive modification when parents mutually change physical care | Garrett: Retroactive liability should not run back to the date of the mutual agreement absent motion timely filed | Heine: Child Support Commission and statute support retroactivity to date care changed to avoid lapses in support | Court held retroactivity to date of care change is permitted; remanded for the court to state discretionary factors used in imposing retroactivity |
| Whether equitable defenses (oral agreement, estoppel, undue hardship) preclude retroactive support | Garrett: Oral agreement and estoppel bar retroactive liability; retroactivity causes substantial injustice | Heine: These were not raised below; court should not address on appeal | Not reached on merits — issues forfeited because not raised below; court may consider on remand in its discretion |
Key Cases Cited
- In re Marriage of Emerson, 77 P.3d 923 (Colo. App.) (permits shifting support duty and retroactive establishment of support against either parent when physical care changes)
- In re Marriage of White, 240 P.3d 534 (Colo. App.) (construed pre-2013 statute to allow retroactive modification only as to the obligor)
- People v. Martinez, 70 P.3d 474 (Colo. 2003) (standards for imputing potential income based on voluntary underemployment)
- In re Marriage of Connerton, 260 P.3d 62 (Colo. App.) (de novo review of legal conclusions in child support matters)
- In re Marriage of Campbell, 140 P.3d 320 (Colo. App.) (requirement for sufficiently specific findings to support imputation of income)