In re the MARRIAGE OF Holly Budean WHITE, Appellee, and David D. MARTIN, Appellant.
No. 09CA0596
Colorado Court of Appeals, Div. VI.
June 10, 2010
The Law Office of Kelly A-R McCurley, Kelly A-R McCurley, Monument, Colorado, for Appellant.
Opinion by Judge CARPARELLI.
In this post-dissolution of marriage matter between David D. Martin (father) and Holly Budean White (mother), father appeals from the order modifying child support. We affirm, but do so based on an analysis different from that of the trial court.
When the parties’ marriage was dissolved, their child lived primarily with mother, and the court ordered father to pay child support. In June 2007, when the child was nearly sixteen, mother agreed that the child could live primarily with father, and that he could stop paying child support. Father, in turn, agreed that mother would not pay child support, provided that the child continued to have overnight visits with mother.
However, in August 2008, father filed a motion to modify child support, asking that mother pay child support and contribute to the child‘s uninsured medical expenses. At the hearing on his motion, father asked the court to order that mother‘s obligation to pay child support began when the child began living primarily with him.
In pertinent part, the court found that the child lived primarily with father beginning in June 2007 and ordered mother to pay child support as of the date father filed his motion, August 2008. Father appeals the court‘s decision not to order mother to pay child support as of June 2007.
II. Father‘s Contention and Our Conclusions
Father contends that, in accordance with
We presume the General Assembly‘s intent is expressed in the words it used, and, therefore, apply the statute in accordance with the plain and ordinary meaning of its words and phrases. Discerning no ambiguity, we do not resort to principles of statutory construction. We conclude that, under the plain meaning of
Unlike in Emerson, where a division of this court concluded that it would be illogical to interpret
III. Preservation of Issue
We first reject mother‘s contention that father did not preserve this issue for appellate review.
In his motion to modify, father requested child support “pursuant to the Colorado Child Support Guidelines,” and at the hearing, he explicitly asked that support be calculated retroactively to the date the child changed residences. We conclude that father adequately raised this issue in the trial court and, thus, preserved it for appellate review.
IV. Standard of Review
An appellate court reviews de novo whether the trial court applied the correct legal standard when modifying child support pursuant to
V. Statutory Interpretation
Our primary task in applying a statute is to give effect to the intent of the General Assembly. Williams v. Kunau, 147 P.3d 33, 38 (Colo.2006). When reviewing any provision of a statute, we consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts, and give words and phrases their plain and ordinary meaning. In so doing, we also give meaning to all portions of the statute and avoid an interpretation or construction that would render any language meaningless. Well Augmentation Subdistrict v. City of Aurora, 221 P.3d 399, 420 (Colo.2009).
We resort to principles of statutory construction only when a statute is ambiguous. Farmers Reservoir & Irrigation Co. v. City of Golden, 113 P.3d 119, 130 (Colo.2005); Bd. of County Comm‘rs v. Costilla County Conservancy Dist., 88 P.3d 1188, 1192-93 (Colo.2004). A statute is ambiguous when the words chosen by the General Assembly are capable of two or more reasonable meanings that yield different results, or are not clear in their common understanding. State v. Nieto, 993 P.2d 493, 500-01 (Colo.2000). When a statute is ambiguous, the court may look to the consequences of the alternative meanings to determine the intention of the legislature.
VI. Modification of Child Support
The General Assembly first added
When a voluntary change of physical custody occurs, the provisions for support, if modified pursuant to this section, will be modified as of the date when physical custody was changed.
Ch. 42, sec. 8,
However, in 1992, the General Assembly added
In In re Marriage of Pickering, 967 P.2d 164, 166 (Colo.App.1997), a division of this court ruled that the requirement in
Within eight months after Pickering was announced, the General Assembly amended
Five years later, in Emerson, a division of this court concluded it would be illogical to interpret
VII. Analysis and Conclusions
Father contends that
A. Application of Section 14-10-122(5)
The general rule established in
In accordance with
Here, it is undisputed that the child support order that was in effect when father filed his motion obligated father to make child support payments and did not obligate mother to do so.
Considering the statutory scheme as a whole; giving consistent, harmonious, and sensible effect to all its parts; giving words and phrases their plain and ordinary meaning; and presuming the General Assembly meant what it said, we conclude that father was the only “obligor under the existing child support order.”
Thus, because the parties agreed to change physical care of the child to father and because father was the obligor under the existing order, the court could properly reduce or eliminate father‘s obligation to make child support payments retroactively to the date of the agreed change of custody. However, because the existing order did not obligate mother to make child support payments, she was not an obligor under it. Thus, as to mother the general rule of
B. Emerson
Contrary to father‘s argument, we decline to apply the holding in Emerson because we do not perceive the phrase “the provisions for child support of the obligor under the existing child support order” to be ambiguous or il-
1. The Duty of Support
Children have an inherent right to support by their parents. McQuade v. McQuade, 145 Colo. 218, 220, 358 P.2d 470, 472 (1960). This right exists independently of the rights of the custodial parent and may be enforced in equity when there is no statute providing for relief in the particular circumstances. Id. This right gives rise to a concomitant continuing parental duty of support. See, e.g., Abrams v. Connolly, 781 P.2d 651, 656 (Colo.1989); In re Marriage of Salas, 868 P.2d 1180, 1181 (Colo.App.1994).
In Colorado, the Uniform Dissolution of Marriage Act (UDMA),
Unlike the Emerson division, we perceive a difference between the continuing duty of parents to support their children and statutory provisions for specific relief in particular circumstances.
2. Termination of the General Parental Duty of Support
In Emerson, because the mother asserted that, under
However, we disagree with the division‘s further conclusion that, “[b]ecause child support cannot terminate until a child‘s emancipation, it would be illogical to read [section] 14-10-122(5) as allowing a lapse in support during a child‘s minority.” Id. (citation omitted).
3. Specific Relief in Particular Circumstances
The General Assembly has exercised its power to provide specific relief in particular circumstances. The scope and extent of that relief is established in
In accordance with
We conclude it is possible to give meaning to the general provisions regarding parents’ obligations to support their children and the specific parameters established in sections 14-10-115 and 14-10-122 affecting whether that obligation should result in a specific order to make child support payments, and, if so, how much and when. We perceive no illogic in interpreting these provisions according to the plain meaning of the words and phrases chosen by the General Assembly.
The general provisions of
A custodial parent provides shelter, food, and other necessities for the child, and, depending on the considerations and procedures provided in section 14-10-115, the noncustodial parent may be ordered and, thus, obligated, to make payments to the custodial parent to participate in paying those expenses. The noncustodial parent is the obligor under such an order.
When a noncustodial parent takes custody of the child, the parent who gives up custody no longer incurs expenses associated with custody. In these circumstances,
At the same time,
C. Conclusion
In these circumstances, it is beyond the authority of this court to ignore the plain meaning of the General Assembly‘s words. In our view, the word “obligor” and the phrase “the provisions for child support of the obligor under the existing child support order,” as used in
Not only is the plain and ordinary meaning of the phrase “child support of the obligor under the existing order” clear, but the speed with which the General Assembly acted to revise
If the General Assembly had intended
Accordingly, we conclude that the court did not err when it did not order mother to pay child support retroactively to the date of the change of custody.
VIII. Sufficiency of the Record
Because our analysis is based on interpretation of
The order is affirmed.
Judge BERNARD concurs.
Judge LOEB specially concurs.
Judge LOEB specially concurring.
I agree with the result reached by the majority in this case, affirming the trial court‘s order that mother should pay child support retroactively to the date father filed his motion to modify in August 2008. However, I reach that result based on reasoning different from that employed by the majority.
In rejecting father‘s contention that the trial court erred by not ordering mother to pay child support retroactive to the date the parties allowed their child to move to father‘s residence, the majority engages in a well articulated and straightforward plain language statutory interpretation of the pertinent statutory framework. In so doing, the majority expressly declines to follow the reasoning and statutory analysis of another division of this court in In re Marriage of Emerson, 77 P.3d 923 (Colo.App.2003).
In my view, it is not necessary to interpret the statutory framework at issue here as does the majority to affirm the trial court‘s order. Rather, even assuming the reasoning in Emerson applies here, I believe the record as a whole, including the trial court‘s very detailed findings, supports the conclusion that the court did not abuse its discretion in ordering mother to pay child support to father retroactively to the date of father‘s motion to modify.
The underlying premise for the Emerson division‘s reasoning and holding is that both parents always have a duty to provide continuing support to their children in order to prevent a lapse in support. See Emerson, 77 P.3d at 925. Thus, the division interpreted
Here, the record is undisputed that there was no lapse in financial support for the child‘s needs during the time before father filed his motion. Rather, the record shows (and the trial court found) that while the child resided with mother, father paid all appropriate child support; that in June 2007, the parties orally agreed the child would live primarily with father; that the parties further agreed father could stop paying child support to mother at that time, but that, given his level of income, he would continue to support the child as he had before; and that they agreed mother would not have to pay child support to father, provided the child had overnight visits with mother.
When father filed his motion to modify in August 2008, mother responded by arguing she had no duty to pay child support because of her financial situation and because the parties had agreed in June 2007 that she did not have to pay child support. After holding an evidentiary hearing and reviewing substantial evidence concerning the income and financial circumstances of both parties, the court rejected mother‘s argument that she had no duty to pay child support. Indeed, the court expressly said that it would not enforce the parties’ oral agreement that mother would not have to pay child support. In that regard, the court found with record support that mother had the capacity to earn a substantially greater income than she was currently earning from her temporary employment, although the court recognized that mother might need some amount of time to reach that level of income. However, the
I discern nothing in Emerson that would preclude the result reached by the trial court here. Rather, I think it is a fair reading of the record that the trial court concluded that when the primary residence of the child changed in June 2007, from a legal standpoint, mother became the obligor for child support purposes at that point in time. See id. at 925-26. However, the trial court also concluded that, based on equitable considerations, it was within its discretion to determine that mother‘s monetary support obligation would be calculated at zero from June 2007 until the date of father‘s motion, when she would begin paying child support in the amounts referenced above. And, indeed, the court‘s findings support this determination, including mother‘s significant potential income level, father‘s substantial income, the fact that father waited “a very long time” to request child support, and the fact that full support for the child never lapsed. See
In sum, the record here shows that the trial court did not abuse its very broad discretion to reach a fair and equitable result regarding mother‘s obligation to pay child support even under the division‘s reasoning in Emerson.
Accordingly, I agree with the majority that the trial court‘s order should be affirmed. I reach that outcome, however, without revisiting and disagreeing with the analysis in Emerson. Nonetheless, because two divisions of this court have arrived at conflicting conclusions regarding the interpretation of