2019 COA 83
Colo. Ct. App.2019Background
- Parties divorced after a 20-year marriage; decree awarded Mark (veteran) maintenance and child support for two biological children and excluded a third child, A.C.J.T., from support calculations.
- Post-decree, the juvenile court later found Mark to be the legal father of A.C.J.T.; Jennifer sought child support for that child and modification of maintenance; Mark sought termination/modification citing reduced income and student status.
- Mark received Post-9/11 GI Bill benefits while attending college: tuition paid to the school, a book stipend, and a housing allowance.
- At the modification hearing, the district court included Mark’s military retirement, imputed 40 hours/week employment income, and the GI Bill housing allowance in gross income, but excluded GI Bill tuition payments and the book stipend as not available for general living expenses.
- Based on recalculated income ($3,749/month), the court set child support for A.C.J.T. at $553/month and terminated Mark’s maintenance obligation (award $0.00).
Issues
| Issue | Plaintiff's Argument (Tooker) | Defendant's Argument (Tooker) | Held |
|---|---|---|---|
| Whether GI Bill tuition payments and book stipend count as gross income for child support/maintenance | GI Bill tuition and book stipend are income and should be included in gross income | Tuition paid to school and book stipend are earmarked for education, not discretionary or to reduce living expenses | Excluded: benefits not available for discretionary use or to reduce daily living expenses, so not gross income |
| Whether potential timber sales should be imputed as additional income | Court should impute timber income (Mark sold timber in 2015; could sell again) | Timber income is speculative and Mark testified he no longer received timber income | Not imputed: court didn’t abuse discretion given lack of evidence on amount/value and speculative nature |
| Whether court made sufficient findings to modify maintenance | Court failed to make detailed findings on statutory factors under §14-10-114(3)(c) | Court found substantial and continuing change (retirement, student status, income drop) and applied guidelines | Sufficient: findings supported that changed circumstances made original award unfair and $0 maintenance was appropriate |
| Whether imputed employment income was proper (scope) | (Implicit) seek higher imputation including other sources | Court imputed 40 hours/week at minimum wage and used that in income calc | Imputation of 40 hours/week accepted (not challenged on appeal); court has broad discretion to impute potential income |
Key Cases Cited
- In re Marriage of Davis, 252 P.3d 530 (Colo. App.) (excluding employer contributions from gross income when not available for living expenses)
- In re Marriage of Mugge, 66 P.3d 207 (Colo. App.) (employer pension contributions not gross income before distribution)
- In re Marriage of Mellott, 93 P.3d 1219 (Kan. Ct. App.) (tuition reimbursements not income where they do not reduce living expenses)
- In re Marriage of Long, 921 P.2d 67 (Colo. App.) (noncash military housing counted as income when it significantly reduces necessary expenses)