In re Marriage of Boettcher — Family Law
2018 COA 34
Colo. Ct. App.2018Background
- Marriage dissolved in 2011; original decree incorporated agreement that neither parent would pay child support.
- In 2015 mother moved to modify child support, alleging changed income; hearing resulted in district court awarding $3,000/month retroactive to the filing date and $34,822 arrearage to be paid over 24 months.
- Father’s income: about $92,356/month; combined parental income: about $105,699/month (well above the $30,000/month statutory schedule cap).
- District court found no presumptive guideline amount applied at these income levels, recognized the schedule’s highest level as a minimum floor, and used statutory discretionary factors to set support at $3,000.
- Court also ordered father to pay 70% of mother’s attorney fees (excluding expert fees) based on disparity in resources.
- Father appealed challenging (1) the treatment of the schedule’s highest amount as a floor rather than a presumptive amount, (2) sufficiency of findings and inclusion of certain expenses in the support award, (3) retroactive modification, and (4) the attorney-fee award.
Issues
| Issue | Father’s Argument | Mother’s Argument | Held |
|---|---|---|---|
| Whether the support amount at the highest schedule level is the presumptive amount when combined income exceeds $30,000/month | Highest-schedule amount is presumptive; any larger award is a deviation requiring deviation findings | The highest-schedule amount is a minimum floor; court may exercise discretion to set a higher amount using statutory factors | Court: highest-schedule amount is a minimum presumptive floor only; for incomes above cap court may use discretion to set higher support without deviation findings |
| Sufficiency of findings and inclusion of discretionary/ travel/ activity expenses in support calculation | Court failed to consider father’s tax liability and debts; court improperly relied on mother’s discretionary expenses | Court considered statutory factors (parents’ resources, child’s needs, marital standard of living); mother’s testimony supported award | Court: findings sufficient; consideration of activities/college savings was appropriate under statutory factors; $3,000 not an abuse of discretion |
| Retroactive modification effective date | Argued retroactive award was improper without specific hardship analysis | Statute makes modification effective as of motion date unless undue hardship/substantial injustice shown; father did not show hardship | Court: applying statutory retroactivity to motion date was proper; no undue hardship claimed or shown |
| Award of attorney fees under § 14-10-119 | Fee award lacked sufficient findings to support apportionment | Disparity in income/resources justified awarding 70% of fees to mother | Court: fee findings adequate; exercise of discretion upheld |
Key Cases Cited
- In re Marriage of Balanson, 25 P.3d 28 (Colo. 2001) (high-income cases require case-by-case determination; schedule cap is not an absolute presumptive ceiling)
- In re Marriage of Nimmo, 891 P.2d 1002 (Colo. 1995) (explains Income Shares Model and that children may share in a parent’s post-dissolution increased income)
- In re Marriage of Schwaab, 794 P.2d 1112 (Colo. App. 1990) (court should use statutory discretionary factors to set support above guideline cap)
- In re Marriage of Wells, 252 P.3d 1212 (Colo. App. 2011) (describing rebuttable presumption and deviation requirements under the guideline schedule)
- In re Marriage of Davis, 252 P.3d 530 (Colo. App. 2011) (standard of review for child support is abuse of discretion)
- In re Marriage of Van Inwegen, 757 P.2d 1118 (Colo. App. 1988) (rejecting mechanical extrapolation and emphasizing case-by-case consideration of factors)
- In re Marriage of Bohn, 8 P.3d 539 (Colo. App. 2000) (upholding support exceeding child’s known needs where parent’s windfall justified higher support)