In Re the Marriage Nimmo

(Colo. Forgey, 770 P.2d 781 People v. 1989), we stated: In re the of Nick NIMMO, Petitioner, lenity true that rule

While it is strictly penal a requires that statute defendant, there in favor of a construed Margaret Margaret Elaine f/k/a statutory giving prohibition against no Nimmo, Respondent. E. meaning full the context in their words used_ of leni- they are The rule which No. 94SC134. statutory only to resolve ty be used should Colorado, Supreme Court of it disre- to create ambiguity, En Banc. legislative purpose for garding the clear which the statute was enacted. March omitted). (citations Forgey, P.2d at 783 Assembly categorized Because the General as

driving the influence a vehicular under offense, drug law it is not

offense and not rule

necessary proper to resort to the statutory

lenity principle construction as a

in this case.

IV injury petitioner’s DUI-bodily felony under California law. conviction (West §§

See Cal.Veh.Code (West 1985).

1985); § 17 Cal.Penal Code that, determined under Colo

The trial court law, petitioner’s

rado conviction would not felony. purposes

have been a 16-13-101,

of section the California DUI-

bodily injury felony conviction is Colora Drake, People

do. See “ (Colo.1990) (stating ‘it 1267-68 makes purposes of enhanced

no difference for the

punishment previously that a committed if it is felony

crime not a in Colorado ”) felony (quot was had’ where conviction n, 1089,1101

ing Marquez, P.2d People v. (Colo.1984)). ‍​​‌‌‌‌‌​‌‌​​​‌‌‌​​​​‌​‌‌‌‌​​​​‌‌​​‌‌​‌‌‌‌‌​‌‌​​​‍appeals proр The court

erly petitioner’s DUI- determined that

bodily conviction, injury in addition to his two convictions, require felony

other California punished

that he an habitual criminal. as

Accordingly, we affirm return this with

case the court of directions imposition

remand to the trial for the

of a life sentence. properly

trial court denied Nick Nimmo’s compel discovery Margaret E. motion to (Ms. (now Seanor) E. Margaret Nimmo’s Seanor’s) pur- present spouse’s income for 14-10-115(7)(a)(I)(A), poses of 6B (1987 Supp.).2 & 1994 We affirm in C.R.S. part, part, reverse in and return this case to appeals for further the court of for remand opinion. proceedings with this consistent marriage A decree of dissolution decree, 4,May In entered on 1989. approved inсorporated trial court Among parties’ separation agreement. other things, agreement granted Ms. Seanor primary physical custody and Nimmo sole legal custody parties’ two children. agreement provided that Nimmo would pay until maintenance Ms. Seanor June pay Nimmo would After June 14- support child accordance with section 10-115, (1987 Supp.). & 1994 6B C.R.S. In filed a motion October Ms. Seanor payments. prep- In to increase child hearing, aration for the Nimmo submittеd interrogatories The in- November 1991. terrogatories sought information from. regarding Seanor her since June 1991. Nimmo’s definition of includ- “income” Harhai, Stephen Stephen Law J. Office “all ... [Ms. ed funds available for Seanor’s] Harhai, Denver, petitioner. J. for use, including gifts.” a list of Nimmo wanted Firm, Raymond Law The Connell J. Con- limitation, jewel- gifts, including “all without nell, Kaeble, Denver, respon- Kathryn M. clothes, entertainment, travel, ry, and restau- dent. provided rant ... [Ms. Seanor] meals present by to the children” Ms. Sеanor’s Opinion Justice ERICKSON delivered the (Mr. Seanor). spouse requested Nimmo also of the Court. by paid a list of “all amounts ... re granted directly either or to [Ms. Seanor] We certiorari review third (Colo.App. P.2d 44 from which [Ms. Seanor] 1993).1 interrogatories The court of concluded the benefit....”3 also interest, annuities, granted pensions, cap- the issue 1. Certiorari was to review trust benefits, "[wjhether security party support proceeding gains, to child ital social workers' benefits, сompensation unemployment is entitled to of sources of insur- benefits, benefits, regardless party, disability the other source.” ance gifts, alimony prizes, and or maintenance re- calculating support, § 2. For 14—10— child ceived. Gross income does not include child 115(7)(a)(I)(A)provides: support payments received. (1987 14-10-115(7)(a)(I)(A), § & 6B C.R.S. income" income from "Gross includes includes, to, Supp.). source and but is not limited salaries, including tips wages, income from limitation, by way example, pursuant 3."[F]or rev- calculated to the federal internal but fees, service, television, gross wages, percentage attorney's enue com- maid cable service bonuses, dividends, missions, repairs, pay, mortgage payments, car and home car severance obligations checking registers, are determined estab- copies of account sought statements, lishing gross the “combined income” which and credit card records. bank monthly adjusted gross the combined “meаns provide an- failed to When Ms. Seanor parents.” of both 14-10- incomes interrogatories, Nimmo filed a swers to (1987 115(10)(a)(II), Supp.). & 1994 discovery. trial court compel motion to “ ‘[Ajdjusted gross income’ means grounds that the denied the motion on the preexisting come less obli- of Mr. were income and contributions alimony gations and less or maintenance ac- of Nimmo’s immaterial to the determination tually Using paid parent.” Id. Also, support obligation. because Mr. schedule, statutоry amounts savings checking shared and Ms. Seanor extrapolated based on the combined accounts, granting the motion would consti- gross income and the number of children due privacy.4 tute an invasion of Mr. Seanor’s 10—115(10)(b), support. §See 14— 14, 1992, In its order of October the trial (1987 Supp.). parent’s Each & 1994 obli- granted to in- Ms. Seanor’s motion gation dividing is determined the com- support payments. crease Nimmo’s child proportion gross bined income “in to their trial Ms. had no court found adjusted § incomes.” 14-10- pay, income. Nimmo was ordered to based 115(10)(a)(I), 6B C.R.S. income, $1,341 per on his month as child “ $4,906 support plus payments. in Nim- back statutory ‘[gjross definition of appealed. mo any income’ includes income from source and to, includes, income from but is not limited appéals The court of found Nimmo’s defini- bonuses, salaries, commissions, wages, ... “significantly tion of income to be broader dividends, interest, pay, pensions, severance in the than the definition of income set forth income, annuities, capital gains, trust social Seanor, support guidelines.” P.2d child 876 benefits, security ‍​​‌‌‌‌‌​‌‌​​​‌‌‌​​​​‌​‌‌‌‌​​​​‌‌​​‌‌​‌‌‌‌‌​‌‌​​​‍compensation workers’ emphasized appeals at 49. The court of the benefits, benefits, unemployment common law rule that the income of third benefits, gifts, prizes, disability insurance parties determining when considered alimony maintenance received.” support purposes. income for child See id. at 10—115(7)(a)(I)(A).5 purposes § For of 14— appeals The court of concluded the 49-50. income,” calculating “gross plain the lan change guidelines did not the guage of the statute all “includes common law rule and held that “the trial resource, a financial whatever the denying in court did not abuse its discretion Marriage In re Arm source thereof.” of compel.” the motion to Id. at 50. strong, (Colo.App.1992); In 831 P.2d 503 Fain, Marriage re 794 P.2d 1087 II (Colo.App.1990). 26(b)(1) allows to “obtain C.R.C.P. matter, appeals

discovery regarding any privi- properly The court оf noted subject determining in leged, the matter the factors considered which is relevant to ” support at common law did not include pending involved in the action.... Child child home, health, insurance, We are aware that various sources of income dental or other differently utilities for tax under the statute are treated purposes. the statute makes no dis- appeals the 4. The court of did not address inva- income based on the tinction between sources of Sеanor, privacy issue. 876 P.2d at 50. sion of Also, federal or state tax codes. because sources to” the enumerated of income are "not limited guidelines appeals noted that the 5. The court of " 14-10-115(7)(a)(I)(A), § domestic rela- any items of refer to ‘income from source and includes Seanor, gifts....'” undergo required 876 income from tions courts would be 14-10-115(7)(a)(I)(A)). (quoting § An P.2d at 49 argument analysis complex to determine income under tax only produced exists that income analysis guidelinеs. thwarts Such a tortured sup- gifts is relevant to a determination of child explains why goals tax port. interpretation Such an statute interpretation of are irrelevant to an definitions produce would an unsound and unreasonable § note 7. 14-10-115. See infra result.

1006 is irrelevant to a determination third-parties. See that income financial resources Seanor, support. of child 876 P.2d 49 In re In re (Colo.App.1993); see also source,” may come “from Income Conradson, 701 Colo.App. “gross expressly income” definition (1979) the financial resources of (holding that 14-10-115(7)(a)(I)(A). “gifts.” includes the child was were an with whom aunt However, the “could come from rela- making not to be considered investments, trusts, tives, friends, or the lot- Garrow, award); Colo. Garrow Harris, Cal.Rptr.2d Be- tery.” (1963) (concluding that the con P.2d 809 calculating in- included in “gifts”7 cause third-parties were immaterial to tributions must determine support, come we duty support). father’s determination Nimmo discover whether “by correctly stated that opinion also 14-10- as defined guidelines, adoption 115(7)(a)(I)(A). Concluding that Mr. Sea- change Assembly did not intend General not resolve nor’s income is not relevant does rule forth” in common law set Conradson compel. motion Nimmo’s P.2d at 50. Based and Garrow. Ill principles, court of con on these of Mr. was not the income cluded are guidelines Colorado’s child sup to determination of child relevant the Seanor, Model. based on the Income Shares port. See id. 49. The Model 876 P.2d at Income Shares establishing from research

evolved family in- percentage two-parent to certain of court of came the The Marygold 2 S. concerning discovery. spent come on children. conclusion the is correct Stanton, Alimony, However, Ann income. the Melli & M. Child of Mr. Seanor’s focus Award, Support to opinion adequately of failed & Council the court’s Fees— Modifica- 14.04[l][a][i], § 14-17 language sup & at plain the of the child tion address Enforcement Model, port money The of avail to The Income Shares guidelines. source 14-18 others, among response to formulated in is not the relevant factor. able to Court, levels Superior Cal.App.4th 3 that “child award Harris v. concerns See (cid:127) (1992).6 low, 564, many 661, Instead, the Cal.Rptr.2d were too with result 4 567 parents were guidelines children and thrust the the existence of that custodial under poverty seriously diminish- money inquiry. the into or suffered is See id. The living guidelines require an thе ex ed standard of while the noncustodial examination of improved parent living an stan- parental of income. The source of often had istence pur- Appeals for federal and state income tax 6. the California Court also nitions though poses.”). Even the federal state stated: controlling, come are not Colora- tax definitions facts, discovery some [certain] Under ... gift provides: do's tax statute may appro- party’s a third financial records be ex-husband, upon example, priate. property An for for than Where the transferred less moving suddenly party, living money adequate in with a third an and full consideration in worth, sumptuous surroundings, driving ‍​​‌‌‌‌‌​‌‌​​​‌‌‌​​​​‌​‌‌‌‌​​​​‌‌​​‌‌​‌‌‌‌‌​‌‌​​​‍luxury money’s by in which then the amount wearing expensive Depend- cars and clothes. property exceeded fair market value consideration, upon discovery ing purpose what the of the ex-husband the value of the for reveals, article, concerning discovery by financial сontri- imposed tax be this shall by party gift comput- butions made third to the ex-hus- in deemed a and shall included made, may living expenses appropriate. ing gifts provi- band’s amount but this Harris, Cal.Rptr.2d any apply 4 to transfer made with- sion shall out donative intent. §'39-25-107, (1994); 16B see Estate C.R.S. also 7. source of income under "[A] 163, Revenue, Ramsey Dep't by Colo.App. 42 guidelines is not determined other definitions 591, ("To (1979) effect a P.2d 594-95 be used federal state income which Armstrong, gift valid inter vivos there be clear purрoses." In re must tax 1992); unequivocal gift (Colo.App. intent to make consumma- see also re P.2d Fain, by way (Colo.App. in tion intention the donor some 794 P.2d of such ("[T]he 1990) 'gross gift property specific relinquishing control of more definition donee."). § prevails in over other defi- income' 14-10-115 Seanor, Dodson, However, by A to the Guide Guide- 876 P.2d at 49. Diane dard.” lines, Fam.Advoc., allowing Nimmo to discover Ms. Spring at Seanor’s source,” any income “from the court denied Income Mod- guidelines articulatе the Shares ability monetary Nimmo the to “establish ... required calculation of el the statute’s payments” and “that such were upon parents’ com- “child based adjusted gross income estimated to received.” bined parents to the child if the have been allocated discovery sought through Information living in intact children were an house- [hearing]8 “need not be admissible at the 10—115(4)(a), § See hold. ...” 6B C.R.S. 14— sought appears reasonably if the information 49; (1987); see also at discovery сalculated to lead to the of admissi- (1987) 10—115(l)(c), (promul- 14— 26(b)(1). Although ble evidence.” C.R.C.P. gating factor for court’s consider- as relevant discoverable, income is not Seanor’s support “[t]he ation in determination of child Nimmo must be able to discover Ms. Sea- have en- standard of the child would properly meet the nor’s income to motion to dissolved”). joyed marriage not been had the support payments. At- increase his tempts to discover Ms. pre guidelines were enacted “reasonably “from source” are calculated vent a drastic decrease the standard of to lead to the of admissible evi- parents living of children and custodial re Nimmo must be able to infor- dence.” obtain By sup sulting ensuring from divorce. regarding gifts mation received Ms. Sea- obligations proportionate to both port nor, attempt they so he can to establish that guidelines at parents’ combined “regularly received from a rectify tempt this dramatic decrease Bamier, source.” 476 N.W.2d at 797. lifestyle. were not enacted proper discovery Without Nimmo cannot es- prevent in a child’s standard of an increase Bamier requirements. tablish living by denying a child the fruits of one parent’s good fortune after a divorce. The Unspecified aspect is the most subtle cash parents living of of a child if the standard Gold-Bikin, any support Lynne Z. of case. marriage only one factor maintained then’ is Defining Key Law- Income is the to Effective consider, which does not lock for the court to yering, Fam.Advoc., Spring at 14. single into a standard of until the child may Although the client be sure the cash emancipation. exists, may prove lawyer not be able to spec- presence of the cash because

IV Id. impor- The ulative nature of the claim. parental income in the tance of by persuaded the rule an We are discovery proof of income a cru- makes Wells, nounced in Barnier v. 476 N.W.2d 795 case. See Mary- 2 part any support cial Barnier, (Minn.Ct.App.1991). the court Stanton, Alimony, gold Melli & Ann M. S. gift regularly “if a is received from stated Award, Support Child & Counsel Fees— source, may properly it be used 14.04, at 14- & Enforcement Modification the amount of a child to determine Id. at The court found obligation.” 797. per month from that the father received $833 14-10-115(7) to Pursuant $5,000 payments periodic father and his (a)(1)(A) may the source Nimmo not discover Id. at 796. grandmother. from his However, income. Nimmo of Ms. Seanor’s of Ms. fоund Barnier may discover the existence Seanor’s court of thereof.” income, “whatever the source inapplicable “since husband did not to be Marriage Armstrong, 831 P.2d In re re Seanor] either that [Ms. establish Marriage In re or, so, (Colo.App.1992); monetary payments if that such ceived ” Fain, (Colo.App.1990). 794 P.2d regularly received.... payments were dealing discovery "trial.’' Proposed with stead of C.R.C.P. 26.2 "hearing" in- relations cases uses in domestic in part MULLARKEY concurs gift to establish Justiсe attempting When part. in subject requirements of dissents party to the same is trying face to proof would show he she KIRSHBAUM not Justice does hearing In a to type of income. other participate. support, party must estab- determine child certainty that lish with reasonable concurring part MULLARKEY in Justice a de- amounts dissenting part: in specu- too pendable source. Claims majority part in affirms reverses may to determine child not be used lative In re part appeals’ the court of decision in However, receipt periodic support. (Colo.App. Bonder, checks, may easily be more as 1993). I Because would affirm established. decision, respectfully appeals’ dissent partial reversal. analysis supports the dis This majority in “[t]he this case holds that by request paid for all Mr. covery amounts money Ms. is source available to Seanor directly to it Ms. Seanor. factor,” maj. op. at not by paid to amounts Mr. not extend does and, in to order determine television, parties for cable Seanor to third come, majority allows of all repairs, and home mortgage payments, car paid directly her. amounts Mr. Seanor has to The amounts Mr. utilities. Sea- It excludes direct Id. may pay provide himself and his fami nor Mr. Seanor to third made ly not be con with certain necessities should expenses. Id. Because I household do sidered as income Ms. Seanor. Sea- family expenses, such beliеve that whether making gift nor of income to Ms. is paid by provided her Ms. Seanor with cash expenses. paying He is these paid by directly by Mr. Seanor or Mr. Seanor obligations. The satisfying the household’s parties, to third are “income” under the Uni- fact benefit Ms. Seanor receive some (UDMA), I Act form Dissolution payment into income. does not convert information re- would hold none discovery request for the appears It this interrogatories in the quested discover- attempt еxpenses an indirect household able. income, which, as determine Mr. Seanor’s noted, previously is irrelevant. 26, discovery permitted is Under C.R.C.P. matter, “any privileged, not which is rele for Discovery receipt of isolated of the subject to matter in the vant the involved ” per irregular and also not tokens would pending purpose action.... of discov keepsakes not missible. Mementos or do ery production is to include of all relevant qualify purposes the child “gifts” as for evidence, trial, surprises at and to eliminate guidelines. ‍​​‌‌‌‌‌​‌‌​​​‌‌‌​​​​‌​‌‌‌‌​​​​‌‌​​‌‌​‌‌‌‌‌​‌‌​​​‍pres support These occasional simplify v. In to issues. J.P. District Court They fall the are not ents outside statute. Denver, and For 2nd Judicial Dist. support to of child relevant a determination (Colo.1994). permitted P.2d 745 Parties are they from because are not is rea to discover evidence that relevant or Also, speculative a the source. sonably discovery of calculated to lead to the items, nаture of these combined with their relevant information. Mortinelli District irrelevance, discovery. prevents their Denver, City County In For & and Court (1980). 199 Colo. Accordingly, appeals affirm the court of we compel the to inter- In motion answers to discovery permit to the of Mr. decision not rogatories, requests Mr. Nimmo follow- the and reverse the court of Seanor’s income ing: appeals denial of Mr. to Nimmo’s motion gifts, including limita- compel discovery of 6. List all without income. tiоn, clothes, entertainment, jewelry, trav- We return this case to the court of meals, el, you provided for and restaurant to remand to court for further the.district Terry proceedings marriage by opinion. or to the children of consistent with this if May parents and separately [as] identi- income since time in an at the such children were intact household.” fying the values each (1987). 10—115(4)(a), provided. 6B gifts were C.R.S. 14— stepparent’s support income and of his his by Mr. paid all 7. List amounts family unit thus arе not relevant because directly you to or to third either if support income would not be available and you which have received benefit parents living in an (for limitation, children were by way and example, but not service, fees, intact household. cable attorney’s maid televi- sion, mortgage payments, car and home Second, allowing discovery the effect car, home, health, or repairs, dental other expenses paid by Mr. to ascribe Seаnor is insurance, utilities), separately and identi- support im- obligations stepparent to fying payee the amount received each and puting portions of his income to Ms. Seanor. payment. purpose and the of the each law, existing courts not consid- Under should you purchased have List all assets that stepparent er the income of a when deter- Mr. Seanor has contributed to for which mining support purposes for child cost, identifying for separаtely each adopts stepparent unless the child. See by you paid and asset the dollar amounts Conradson, Colo.App. In re Mr. Seanor. legislature 604 P.2d 701 Had the health, automobile, List homeowners any aspect steppar- intended include of a to covering you your or other insurance determining ent’s income when assets, identifying in separately each case responsibility, specifically includ- it would thereon, paid premiums whether 10—115(7)(a)(I)(A).Be- ed under section 14— by you paid another legislature cause the has not included such naming person, person. such consideration, expenses paid Mr. Sea- determining nor’s income are irrelevant request interpret this motion to discov- Williams, support. Development R. necessary ery ordinary of all the house- Support Child Orders Guidelines expenses paid by Mr. his hold Seanor for Conradson, (1987); Colo.App. which includes Ms. Seanor and household at P.2d at 701. my view, this Mr. Nimmo’s children. information is therеfore Third, discovery attempt is to cir- an (1) expenses because: such discoverable imputed ruling trial court’s on cumvent the purposes to Ms. Seanor for not income allow income. The child (2) guidelines; stepparent, if impute parent the court to obligation no Mr. has equal- parent not to work. To more chooses (3) children; this re- Nimmo’s support obligations under ly divide the child attempt quest impermissible an circum- 14-10-115(7)(b)(I), parent “[i]f impute in- vent the trial court’s refusal unеmployed underemployed, or voluntarily the court found come to Ms. Seanor because on a calculated based support shall be intentionally was that not unem- Ms. Seanor potential In this income.” determination underemployed. ployed or case, however, to im- the trial court refused Seanor, finding that she pute income to Ms. First, nothing support guide- in the child Thus, employable. presently specifically normally pur- items lines defines any already that trial has determined family court a 'rela- chased and consumed within by Ms. as a result benefits obtained tionship as income.1 The child income relationship do not reflect of her new guidelines attempt calculate “child imputed to Ms. Seanor. parents’ adjusted that could be upon the combined based dividends, commissions, bonuses, (1987 14-10-115(7)(a)(I)(A), wages, sev- 6B C.R.S. 1. Section income, interest, Supp.), gross trust pay, pensions, erance annuities, & 1994 defines security part, capital gains, bene- as: social benefits, fits, compensation includes, unem- source, workers' from but is benefits, disability salaries, ployment insur- wages, limited to from not including tips benefits, alimony gifts, prizes, ance pursuant to calculated the feder- percentage received. maintenance al internal revenue service payment of ordi- Finally, emphasize I fairly charac-

nary expenses is not household spouse from to the gift a one

terized as employed outside the home

other. Whether not, spouse a makes contribution to each payment family takes the unit which spouse expenses one out

household Moreover, disagree with

gift category. I gift. holds

majority’s definition the UDMA relevant to “gifts” under gift a when

a determination of dependable “regularly ‍​​‌‌‌‌‌​‌‌​​​‌‌‌​​​​‌​‌‌‌‌​​​​‌‌​​‌‌​‌‌‌‌‌​‌‌​​​‍received gift Maj. op. Although a

source.” dependable regularly received

source, may gift. abe one-time Un- it also statute, gift

der the Colorado tax

stance, property is transferred for less where full in mon- adequate

than consideration

ey, by which the fair market the amount property

value exceeds the value gift. shall be deemed a

the consideration 39-25-107, Although controlling, it definition is lends tax my gift single can view that a “regular occur- rather than a

transaction

rence.” conclusion, I rule that none of the would is rele- requested

information Mr. Nimmo determining Ms. income be-

vant to normally expenses

cause the enumerated such, relationship. As

arise from marital

they cannot be construed as income also that a

not discoverable. would hold

gift not have to be does under

from a source the UDMA. Colorado,

The PEOPLE of State of

Plaintiff-Appellant, JORDAN, Holden

Johnathan

Defendant-Appellee.

No. 94SA401. Colorado,

Supreme Court of

En Banc.

March

Case Details

Case Name: In Re the Marriage Nimmo

Court Name: Supreme Court of Colorado

Date Published: Mar 13, 1995

Citation: 891 P.2d 1002

Docket Number: 94SC134

Court Abbreviation: Colo.