Lead Opinion
Opinion by
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, thе 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 thе 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 considering the tаxes 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 pеr 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-tax 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, even 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,
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 § 14-10-115(7)(a).
Recently, a division of this court in In re Marriage of Zisch,
Section 14-10-115(7)(a) plainly states that the gross amount of income is to be used when calculating child support, and we will not judicially legislate an exception for lottery winnings. See In re Marriage of Lishnevsky,
Thus, the trial court did not err here in considering the entire $1.2 million the father won in the lottery.
II.
Next, the father contends the trial court erred in counting his winnings twice: once in 1998, by annualizing the gross income for the year, and again in each subsequent year as an income producing asset. We disagree.
The amount received as gross income is used to calculate child support for the year in which the income is received. Thereafter, if a parent invests a рortion of the funds which were received as income in one year, any interest earned in the subsequent years is properly included as gross income for purposes of child support. See In re Marriage of Zisch, supra.
IIL
The father also contends that the trial court erred in entering a child support order that is twice the amount which mother testified was necessary or desirable. We disagree.
We find no abuse of discretion in the amount awarded here. The child was entitled to benefit from her father's windfall, and the evidence showed that as of the date of the hearing, she had not. In fact, the mother testified that the father "never bothered to tell [his teenage daughter] he had won." Furthermore, the father testified that he had provided financial help to himself and his extended family, but he did not testify that he had spent any of the funds directly on his dаughter. These circumstances support the award here.
IV.
The father's final contention is that the trial court erred in awarding the mother her attorney fees incurred in bringing the motion to modify child support. Again, we disagree.
Section 14-10-119, C.R.S$.1999, permits the trial court to apportion attorney fees and costs in dissolution and post-dissolution matters based upon the relative economic cireumstances of the parties. In re Marriage of Aldrich, supra; In re Marriage of McNamara,
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 thе [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.
Concurrence Opinion
specially concurring.
I write separately to reiterate the view expressed in my special concurring opinion in In re Marriage of Zisch,
Fisch involved a one-time receipt of a large capital 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 approaсh used by the trial court here. 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. Consеquently, 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 approach was incorrect. As I indicated there, nothing in the child support statute, $ 14-10-115, C.R.S. 1999, specifies how a large, one-time receipt of incоme should be treated. In Fisch, I noted that anomalous results would follow from spreading out a large capital gain received in November over a two-month period, as opposed to spreading out a capitаl gain of the same amount received earlier in the year over a greater number of months.
Indeеd, 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 cireum-stanсe" pursuant to § 14-10-122(1)(a), C.R.S. 1999. As new wealth, the unspent portion of father's lottery winnings, beginning in May 1998, would have provided a basis for deviating from the child support guidelines under § 14-10-115@8)(a), C.R.S.1999. Further, I believe that beginning in May 1998, the trial court should have begun to computе a reasonable amount of investment income which father's unspent lottery winnings could reasonably be expected to generate. Beginning in May, such income also should have been used to determine an approрriate amount of child support.
Finally, I continue 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.