In re the Marriage of Paige
282 P.3d 506
Colo. Ct. App.2012Background
- Post-dissolution father seeks retroactive modification of 2000 child support due to a change in physical care.
- 2000 orders designate mother as primary residential parent; father ordered to pay $1,057.24 monthly plus maintenance and fees.
- 2008 mother seeks contempt for past due support; July 2009 father moves to modify based on unwritten mutual agreement that child lived with him during periods.
- 2011 order denies modification, holding no mutual agreement reduced to writing; evidence mostly affidavits from father and emancipated child.
- Court later acknowledges disputed fact as to existence of mutual agreement and indicates need for a hearing; appellate reversal remands for evidentiary hearing.
- Final remand to hold an evidentiary hearing on father’s motion to modify the child support order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a written agreement is required for 14-10-122(5) modification | Paige argues no written agreement is needed | Paige argues a mutual agreement must be in writing | Written agreement not required for mutual change |
| Whether the court erred by not holding a hearing on disputed facts | Father sought a hearing on existence of mutual agreement | Mother opposed a hearing, asserting no mutual agreement | Reversal; evidentiary hearing required |
| Whether retroactive modification depends on date of change in physical care | Modification should reflect actual change date | Mutual agreement controls timing under statute | Statutory framework supports retroactive modification when mutual change occurred |
| Whether the trial court properly interpreted the statute when it required writing | Court erred in requiring writing | Not necessary to write for mutual agreement | Court erred; no writing requirement |
| Whether absence of a hearing or written agreement mandated reversal | Procedural safeguards required hearing | Record showed no mutual agreement, so modification inappropriate | Remand for evidentiary hearing |
Key Cases Cited
- In re Marriage of Emerson, 77 P.3d 923 (Colo.App.2003) (retroactive modification for mutually agreed change; provides context for 14-10-122(5))
- In re Marriage of White, 240 P.3d 534 (Colo.App.2010) (mutual agreement may affect retroactive modification under 14-10-122(5))
- In re Marriage of Barker, 251 P.3d 591 (Colo.App.2010) (modification provisions may be based on mutual agreement without written form)
- In re Marriage of Heim, 43 Colo.App. 511, 605 P.2d 485 (Colo.App.1979) (recognizes valid oral agreements in property divisions)
- In re Marriage of Green, 93 P.3d 614 (Colo.App.2004) (hearing required when numerous facts are disputed on modification)
- In re Marriage of Mugge, 66 P.3d 207 (Colo.App.2003) (statutory interpretation of child support provisions; de novo review)
- In re Marriage of Schmedeman, 190 P.3d 788 (Colo.App.2008) (statutory construction for child support modifications)
- Kraus v. Artcroft Sign Co., 710 P.2d 480 (Colo.1985) (do not read nonexistent provisions into statutes)
- Lishnevsky, 981 P.2d 609 (Colo.App.1999) (reimbursement remedies not mandated where not in statute)