In rе the Marriage of RYAN E. BOETTCHER, Appellant, and CHRISTINA L. BOETTCHER, Appellee.
No. 17CA0262
Colorado Court of Appeals
March 8, 2018
2018COA34
VOGT, J.
Weld County District Court No. 10DR822, Honorable W. Troy Hause, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
March 8, 2018
2018COA34
No. 17CA0262, In re Marriage of Boettcher — Family Law — Post-dissolution — Modification of Child Support — Schedule of Basic Child Support Obligations — Discretion
In this appeal of a post-dissolution of marriage order modifying the amount of the father‘s child support obligation, a division of the court of appeals addresses the requirements for modifying such support when the parents’ combined incomes exceed $30,000 per month, the highest level of the support schedule in
In this case, the district court applied the correct legal standard in finding that there was no presumptive child support amount under the parties’ circumstances, acknowledging the minimum presumptive аmount under the guidelines, and then using its discretion to determine a higher amount based on the factors in
The division affirms the order of the district court.
ORDER AFFIRMED
Division IV
Opinion by JUDGE VOGT*
Loeb, C.J., and Casebolt*, J., concur
Announced March 8, 2018
Eckelberry Law Firm, LLC, John L. Eckelberry, Denver, Colorado, for Appellant
Peek Goldstone, LLC, Amanda M. Peek, Greeley, Colorado, for Appellee
*Sitting by assignment of the Chief Justice under provisions of
I. Background
¶ 2 The parties’ ten-year marriage ended in 2011. Their agreement that no child support would be owed by either of them was incorporated into the decree.
¶ 3 In 2015, mother moved to modify child support, alleging changed incomе resulting in more than a ten percent change in the amount of support that would be due. The district court ordered the parties to exchange financial information and mediate, but the support issue was not resolved.
II. Child Support
¶ 5 Father contends that the court erred by (1) determining that there was no rebuttable presumptive child support оbligation when the parents’ combined incomes exceed the highest level of the statutory income schedule; (2) not making sufficient findings and including inappropriate expenses in awarding mother $3000 per month in child support; and (3) awarding retroactive child support back to the date of mother‘s motion without making sufficient findings to support the award. We disagree.
A. Standard of Review
¶ 6 “We review child support ordеrs for abuse of discretion because the issue of the parents’ financial resources is factual in nature.” In re Marriage of Davis, 252 P.3d 530, 533 (Colo. App. 2011). A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair. In re Marriage of Atencio, 47 P.3d 718, 720 (Colo. App. 2002).
¶ 7 We review de novo whether the district court applied the correct legal standard. Id. “Interpretation of the child support statutes is a question of law that we review de novo.” In re Marriage of Paige, 2012 COA 83, ¶ 9.
B. Determining Child Support When the Parents’ Combined Incоmes Exceed the Highest Level of the Statutory Schedule
¶ 8 Child support is determined by applying the schedule in
¶ 9 The schedule establishes child support amounts for parents with combined monthly incomes from $1100 to $30,000. See
¶ 10 For parents with combined incomes above the highest level of the schedule, or greater than $30,000 per month, “[t]he judge may use discretion to determine child support . . . except that the presumptive basic child support obligation shall not be less than it would be based on the highest level.”
¶ 11 In exercising its discretion, the district court considers all relevant factors, including: (1) the child‘s and the custodial parent‘s financial resources; (2) the standard of living the child would have enjoyed had the marriage not been dissolved; (3) the child‘s physical and emotional condition and educational needs; and (4) the financial resources and needs of the noncustodial parent.
¶ 13 First, the statute does not by its plain language state that the support amount at the highest level of the schedule is the presumptive amount whenever the parents’ combined incomes exceed the highest level of the schedule. Cf. Paige, ¶ 9 (if statutory language is clear and unambiguous on its face, we apply it as written). Instead, the statute provides that the court “may use discretion” to determine support in that circumstance, but that the presumptive obligation “shall not be less than it would be based on the highest level” of the schedule.
¶ 14 Thus, under the statute, a court may not award less than the support amount at the highest level of the schedule without deviating under
¶ 15 Based on these authorities and the plain language of
¶ 16 Had the legislature intended the amount of child support at the highest level of the income schedule to be the presumptive amount of support in all cases where the parents’ combined incomes exceed the highest lеvel of the schedule, it could have clearly so provided, as, for example, Arizona‘s child support guidelines do. See Ariz. Rev. Stat. Ann. § 25-320 app. ¶ 8 (Child Support Guidelines 2017) (“If the combined adjusted gross income of the parties is greater than $20,000 per month, the amount set forth for combined adjusted gross income of $20,000 shall be the presumptive Basic Child Support Obligation.“). Our legislature did not use such language, but instеad stated that the presumptive obligation in such cases “shall not be less than” the highest amount.
¶ 17 Additionally, father‘s argument that the basic child support obligation in this case — where father alone earns $92,356 per month and the parties together earn $105,699
¶ 18 It would accordingly not be appropriate under the Inсome Shares Model to treat the parents here the same as parents earning less than one-third of their income, or to impose the same presumptive child support obligation on both sets of parents.
¶ 19 In sum, we conclude that the district court applied the correct legal standard in (1) finding that there was no presumptive child support amount under the parties’ circumstanсes; (2) recognizing the minimum presumptive amount under the guidelines; and (3) then using its discretion to determine a higher amount based on the
C. Sufficiency of the District Court‘s Findings
¶ 20 We further conclude that, in determining child support, the district court made sufficient findings concerning the relevant statutory factors and did not include inappropriate expenses in its award. Additionally, the amount of support it awarded — $3000 per month — is not manifestly arbitrary, unreasоnable, or unfair under the parties’ circumstances and thus does not constitute an abuse of discretion. See Atencio, 47 P.3d at 720.
¶ 21 The district court acknowledged father‘s argument that his monthly child support obligation under the highest income level of the schedule would be $1424.82, as well as mother‘s argument that it should extrapolate upward from the highest level, which would result in a monthly child support payment of $5024.52 for father. In rejecting both parties’ arguments and setting father‘s obligation at $3000 per month, the court noted that it was required to consider the relevant factors at
¶ 22 The court found that the child had no financial resources of his own and that the marital standard of living, while relevant, was not dispositive. Rather, the child was entitled to benefit from the fact that fаther had done very well financially since the dissolution. See
¶ 23 The court‘s findings are supported by the record. Mother testified to the differences in the level оf experiences the parties were able to provide for the child and that child support would enable her to purchase better clothes for him, travel more, eat at nicer restaurants, and participate in boating, which was an activity the child enjoyed with father. She further testified that she wanted to continue to save for the child‘s college expenses and was afraid she would not be able to do so as the parties’ distributions from their partnership, PFC Funding, declined — which both testified would happen.
¶ 24 Father did not dispute the level of experiences and activities he was able to
¶ 25 Although the court‘s order does not reference these circumstances, we presume that the court considered the testimony on the subject. See In re Marriage of Hatton, 160 P.3d 326, 329 (Colo. App. 2007). Additionally, even assuming the amount of debt and taxes father claimed, his remaining monthly income is still sufficient to provide support at the $3000 per month amount ordered by the court.
¶ 26 Nor do we agree with father that the court included inappropriate expenses, such as mother‘s travel and activity expenses, in imposing a $3000 per month support obligation. As noted, the court considered mother‘s testimony concerning the parties’ differing abilities to engage in discretionary spеnding on vacations and special activities with the child. The child was ten years old at the time of the hearing and thus could not reasonably participate in such activities without a parent also participating.
¶ 27 Father‘s reliance on
¶ 28 The court also did not abuse its discretion by considering mother‘s desire to save for the child‘s college expenses, even though, as it noted, neither she nor father was obligated to pay such expenses as a part of their child support obligation. The child‘s “educational needs” are a factor that the court considers under
¶ 29 Finally, we note that the district court did not “mechanically extrapolate” above the guidelines, as mother had requested. See Van Inwegen, 757 P.2d at 1121. Rather, it specifically declined to do so and instead relied on the
D. Retroactive Modification
¶ 30 We are not persuaded by father‘s contention that the court erred by retroactively modifying child support back to the date mother mоved to modify.
¶ 31 A child support modification “should be effective as of the date of the filing of the motion, unless the court finds that it would cause undue hardship or substantial injustice.”
¶ 32 As mother points out, father did not argue, nor does the record show, that applying the statute would cause undue hardship or substantial injustice. Cf. Nelson, ¶ 41 (upholding maintenance modification as of date of motion to modify when, although the court made no finding concerning hardship, the husband‘s income had increased such that he
III. Section 14-10-119 Attorney Fees
¶ 33 Last, father contends that the district court abused its discretion by awarding mother a portion of her attorney fees under section 14-10-119 without making sufficient findings to support the award. We disagree.
¶ 34
¶ 35 After finding the parties’ incomes for child support modification purposes, the district court found, based on the disparity in their resources and income, that it was equitable to award mother seventy percent of her attorney fees exclusive of her expert witness fees.
¶ 36 We conclude that these findings, when considered along with the evidence in the record, are sufficient to support the attorney fees award. See Bohn, 8 P.3d at 542 (“[A]fter making findings as to both parties’ financial resources for purposes of child support, the trial court found that the father ‘is far better able to pay the cost of this proceeding than the [mother].’ This is a sufficient basis to support the award.“). Again, we presume that the court considered the evidence before it concerning the parties’ financial circumstances. Contrary to father‘s argument, it was not required to award a lesser amount simply because father‘s own attorney fees were almost twice as much as mother‘s.
IV. Appellate Attorney Fees
¶ 37 Mother requests her attorney fees incurred on appeal under
¶ 38 “Standards for determining whether an appeal is frivolous should be directed toward penalizing egregious conduct without deterring a lawyer from vigorously asserting his client‘s rights.” Mission Denver Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984). Fees should be awarded only in clear and unequivocal cases when the appellant presents no rational argument, or the appeal is prosecuted for the purpose of harassment or delay. See Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925, 934-35 (Colo. 1993). That is not the situation here. We therefore decline to award mother appellate fees.
V. Conclusion
¶ 39 The order is affirmed.
CHIEF JUDGE LOEB and JUDGE CASEBOLT concur.