In Re the Marriage of Davis
252 P.3d 530
Colo. Ct. App.2011Background
- Post-dissolution of marriage in Colorado; wife appeals trial court order modifying child support and denying contempt and attorney fees.
- Georgia order and Colorado enforcement context discussed under UCCJEA; trial court applied amended §14-10-115(6)(b)(I) to post-effective-date obligations.
- Statutory amendments in 2007 (effective 2008) potentially retroactive for pre-2008 accruals; issue remanded for recalculation of pre-2008 obligations.
- Court concludes amendments apply prospectively to obligations accruing after the effective date; retroactive application to pre-2008 accruals is improper.
- Court upholds other aspects of the order (contempt findings and attorney fees) and remands only for recalculation of pre-2008 child support obligations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether amended §14-10-115(6)(b)(I) applies retroactively. | Davis argues retroactive application is unconstitutional as applied to pre-2008 accruals. | Davis contends the new statute should apply to all relevant calculations. | Amendment applied prospectively; recalculation needed for pre-2008 accruals on remand. |
| Whether 401(k) employer contributions are included in Husband's income. | Husband's 401(k) contributions should be included as income. | Employer contributions are not distributable as income before retirement. | Employer contributions undistributed before retirement are not income for child support. |
| Whether stock options should be included in Husband's income. | Stock options exercised or already available should count as income. | Only options already exercised are income; unexercised options are not. | Only exercised stock options are included; unexercised options excluded. |
| Whether employer contributions to insurance plans should be included in income. | Employer-paid insurance contributions should count as income. | Such contributions are not income for child support purposes. | Employer insurance contributions are not included in income. |
| Whether the child’s income should reduce the basic support obligation. | Child's income reduces the child's basic needs. | Court may consider, but not necessarily include, child's income. | Court properly included child’s income as it reduces the child’s needs under the circumstances. |
Key Cases Cited
- Specialty Rests. Corp. v. Nelson, 231 P.3d 393 (Colo. 2010) (prospective vs. retroactive application of statutes; legislative intent)
- Mugge v. Mugge, 66 P.3d 207 (Colo. App. 2003) (undistributed employer retirement contributions are not income)
- Tessmer v. Tessmer, 903 P.2d 1194 (Colo. App. 1995) (interest/dividends on retirement accounts differ from employer contributions)
- Long v. Long, 921 P.2d 67 (Colo. App. 1996) (expense reimbursements may be included if significant and reduce living expenses)
- Nimmo v. Nimmo, 891 P.2d 1002 (Colo. 1995) (third-party gifts and income considerations in support)