In re the MARRIAGE OF Barbara BOHN, Appellee, and Daniel Bohn, Appellant.
No. 98CA1859.
Colorado Court of Appeals, Div. III.
Feb. 3, 2000.
Rehearing Denied April 6, 2000.
5 P.3d 380 | 2000 Colo. App. LEXIS 219 | 2000 CJ C.A.R. 539
Certiorari Denied Sept. 11, 2000.
This is consistent with the primary purpose of the general mechanics’ lien statute, which is to benefit аnd protect those who supply labor, materials, or services to enhance another‘s property. See City of Westminster v. Brannan Sand & Gravel Co., 940 P.2d 393 (Colo.1997); Skillstaff of Colorado, Inc. v. Centex Real Estate Corp., 973 P.2d 674 (Colo.App.1998) (discussing equitable nature of the mechanics’ lien act); Ridge Erection Co. v. Mountain States Telephone & Telegraph Co., 37 Colo.App. 477, 549 P.2d 408 (Colo.App.1976) (act‘s underlying рrinciple is to prevent unjust enrichment).
Here, even if we use the original purchase price set by the general contractor rather than that set by the subsequent contractor to measure payment, defendants had not paid the full purchase price at the time the liens were filed.
Moreover, we disagree with defendants that, because they had incurred new, additional costs after the original contractor abandoned the project, they have paid twice for their home. Tо the contrary, the inequity the statute seeks to avoid is a homeowner paying the same costs twice. Here, however, it was undisputed that the new subcontractors did not redo plaintiffs’ work, but simply finished the remaining undone work on the home. And, although aware оf plaintiffs’ liens, defendants did not “fully pay” for their work even once.
In light of our conclusion that the trial court properly determined that the homeowner‘s defense was inapplicable under the circumstances here, we need not address defendants’ other contentions.
The judgment is affirmed.
Judge TAUBMAN and Judge CASEBOLT concur.
Robert M. Moyers, Colorado Springs, Colorado, for Appellant.
Opinion by Judge JONES.
In this post-dissolution of marriage proceeding, Daniel Bohn (father) appeals the order increasing his child support obligation to Barbara Bohn (mother) and awarding her attorney fees. We affirm.
When their marriage was dissolved in 1996, the father was ordered to pay the mother $352 per month for the support of their daughter. This amount was based on monthly gross incomes of $1,982 for the mother, and $2,472 for the father.
Two years later, the father won a prize of $1.2 million gross from the Colorado State Lottery. Once the required taxes were withheld, the net amount the father received in 1998 was $816,000, since he chose the cash option rather than an annuity. After reading in the newspaper of the father‘s good fortune, the mother filed a motion to modify child support.
The trial court determined that the entire $1.2 million was gross income for the 1998 calendar year, and, therefore, that the father‘s monthly gross income for 1998 was $104,743.17. After considеring the taxes the father would pay for 1998 income, the needs of the daughter, and the benefits she would have received had the marriage not been dissolved, the trial court ordered father to pay child support in the amount of $4,208 per month during 1998 beginning April 23, 1998, when the mother filed the motion to modify.
The trial court also found that the father “has invested a portion of his winnings and can expect to experience a significant increase in income in future years from that source.” Accepting the estimate that his income in 1999 would be $70,090, the trial court ordered that child support for 1999 was to be based on that income. Finally, the father was ordered to pay mother‘s attorney fees of $1,984.64.
I.
The father contends that child support should be based on the after-tаx or net amount of his lottery winnings, rather than the gross amount. We disagree.
The father argues that the gross amount should not be used to calculate support because he will never have access to the withheld portion of his winnings. However, evеn though taxes withheld are income which is unavailable to the recipient, they are still a component of gross income. See In re Marriage of Stress, supra.
The father also argues that under In re Marriage of Fain, 794 P.2d 1086 (Colo.App. 1990), whenever a large one-time sum of money is received, the actual amount received should be used to calculate support. However, in that case, the father received a structured settlement of a personal injury claim, which was tax-free. A division of this court held that an amount should not be imputed to represent the amount of tax the father would have paid if the settlement were subject to taxation. Thus, the amount the father actually received there was the “gross” amount of his income and, therefore, support was properly based on that amount.
The circumstances here are distinguishable in that the father‘s winnings are taxable. Even so, the result in Fain supports the use of the gross amount under the plain language of
Recently, a division of this court in In re Marriage of Zisch, 967 P.2d 199 (Colo.App. 1998), relying upon In re Marriage of Bregar, 952 P.2d 783 (Colo.App.1997), considered issues, concerning matters of capital gains, similar to those presented here. However, the father‘s reliаnce on those cases here is misplaced because those cases stand for the proposition that net income should be used in determining the amount of investment income a large, one-time sum of money may be expected to generate. Indeed, Zisch specifically holds that when a large one-time capital gain is received, the gross amount should be used in calculating income in the year of its receipt.
Thus, the trial court did not err here in considering the entire $1.2 million the father won in the lottery.
II.
Next, the father contends the trial court еrred in counting his winnings twice: once in 1998, by annualizing the gross income for the year, and again in each subsequent year as an income producing asset. We disagree.
The amount received as gross income is used to calculate child support for thе year in which the income is received. Thereafter, if a parent invests a portion of the funds which were received as income in one year, any interest earned in the subsequent years is properly included as gross income for purposes of child support. See In re Marriage of Zisch, supra.
III.
The father also contends that the trial court erred in entering a child support order that is twice the amount which mother testified was necessary or desirable. We disagree.
We find no abuse of discretion in the amount awarded here. The child was entitled to benefit from her father‘s windfall, and the evidence showed that as of the date of the hearing, she had not. In fact, the mother testified that the father “never bothered to tell [his teenage daughter] he had won.” Furthermore, the father testified that he had provided financial help to himself and his extended family, but he did not testify that he had spent any of the funds directly on his daughter. These circumstances support the award here.
IV.
The father‘s final contention is that the trial court erred in awarding the mother her attorney fees incurred in bringing thе motion to modify child support. Again, we disagree.
Here, after 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. Cf. In re Marriage of Aldrich, supra (insufficient findings required remand); In re Marriage of Zisch, supra (same).
The order is affirmed.
Judge NEY concurs.
Judge TAUBMAN specially concurs.
Judge TAUBMAN specially concurring.
I write separately to reiterate the view expressed in my special concurring opinion in In re Marriage of Zisch, 967 P.2d 199, 204 (Colo.App.1998), that a large one-time receipt of income should be considered as income only in the month in which it was received, and thereafter as a financial resource. Because I believe the trial court would have reached the same result under the analysis which I believe is correct, I concur with the result reached by the majority.
Zisch involved a one-time receipt of a large caрital gain. The majority in that opinion expressed the view that the gross amount of such capital gain should be considered as income for the year in which the capital gain was received. That was the approach used by the trial court hеre. The trial court averaged father‘s gross $1.2 million lottery winnings over the entire year of 1998, even though such lottery winnings were not received until April, and mother‘s motion to modify child support was not filed until April as well. Consequently, the trial court attributed more than $300,000 of father‘s lottery winnings to the months of January, February, and March, and therefore, did not consider such amount in any way with respect to mother‘s motion to modify child support.
For the reasons set forth in my special concurring opinion in In re Marriage of Zisch, I believe that this apprоach was incorrect. As I indicated there, nothing in the child support statute,
Indeed, the effect of the trial court‘s approach would have been even more arbitrary had father received his lottery winnings in November. In that event, the trial court would have apportioned father‘s winnings over the entire year, but would have considered as income only approximately $200,000 attributed to November and December. Under such an approach, more than one million dollars of father‘s lottery winnings would not have been considered as income.
In contrast, my view is that father‘s lottery winnings should have been considered as income only for the month of April 1998. In subsequent months, the unspent amount of his lottery winnings would be considered a “substantial and continuing changed circumstаnce” pursuant to
Finally, I continuе to urge that either the Colorado Child Support Commission or the General Assembly address the issue of how large, one-time receipts of income should be considered for purposes of child support modification and whether such amounts should be treated as income, assets, or both.
Because it is likely that the application of my approach would have led to the same result in the determination of father‘s child support obligation for 1998, I concur with the result reached by the majority.