In re Marriage of Boettcher — Family Law ( 2018 )

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 section 14-10-115(7)(b), C.R.S. 2017. The division
rejects the father’s argument that the support obligation at the
highest level is the presumptive amount under the guidelines, such
that any greater award constitutes a deviation requiring findings in
accordance with section 14-10-115(8)(e). Rather, consistent with
the plain language of section 14-10-115(7)(a)(II)(E), the district court
may use discretion to determine support in such high income
cases, but the presumptive amount shall not be less than it would
be based on the highest level of the schedule.
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 amount under the guidelines, and then
using its discretion to determine a higher amount based on the
factors in section 14-10-115(2)(b).
The division affirms the order of the district court.
COLORADO COURT OF APPEALS 2018COA34
Court of Appeals No. 17CA0262
Weld County District Court No. 10DR822
Honorable W. Troy Hause, Judge
In re the Marriage of
Ryan E. Boettcher,
Appellant,
and
Christina L. Boettcher,
Appellee.
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 Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 In this post-dissolution of marriage dispute concerning child
support for the child of Ryan E. Boettcher (father) and Christina L.
Boettcher (mother), father appeals the order modifying his support
obligation and requiring him to pay a portion of mother’s attorney
fees under section 14-10-119, C.R.S. 2017. We affirm.
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 income 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.
¶4 After a hearing, the district court ordered father to pay mother
$3000 in monthly child support as of the date she moved to modify,
which, after crediting father with payments he voluntarily made,
resulted in arrearages of $34,822, to be paid off over twenty-four
months. Based on the disparity in the parties’ financial resources
1
and income, the court further ordered father to pay seventy percent
of mother’s attorney fees incurred for the proceedings.
II. Child Support
¶5 Father contends that the court erred by (1) determining that
there was no rebuttable presumptive child support obligation 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 orders 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
2
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
Incomes Exceed the Highest Level of the Statutory Schedule
¶8 Child support is determined by applying the schedule in
section 14-10-115(7)(b), C.R.S. 2017, to the parents’ combined
gross incomes. See § 14-10-115(7)(a)(I); Davis, 252 P.3d at 534.
The resulting basic child support obligation is then divided between
the parents in proportion to their adjusted gross incomes. § 14-10-
115(7)(a)(I).
¶9 The schedule establishes child support amounts for parents
with combined monthly incomes from $1100 to $30,000. See § 14-
10-115(7)(b). There is a rebuttable presumption in such cases that
child support should be ordered in the amount indicated by the
schedule. See § 14-10-115(8)(e); In re Marriage of Wells, 252 P.3d
1212, 1214 (Colo. App. 2011). The court may deviate from the
schedule if it determines that the amount indicated would be
inequitable, unjust, or inappropriate, but it must make findings
specifying the presumptive amount and its reasons for the
deviation. § 14-10-115(8)(e); Wells, 252 P.3d at 1214.
3
¶ 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.” § 14-10-115(7)(a)(II)(E); see In
re Marriage of Balanson, 25 P.3d 28, 43-44 (Colo. 2001); see also In
re Marriage of Van Inwegen, 757 P.2d 1118, 1120 (Colo. App. 1988)
(noting that the legislative history of the statute indicates that “the
guideline provides calculated amounts of child support up to a
specific combined gross income level, but in cases with a higher
combined gross income, child support is to be determined on a
case-by-case basis”).
¶ 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. § 14-10-
115(2)(b); see In re Marriage of Schwaab, 794 P.2d 1112, 1113
(Colo. App. 1990); Van Inwegen, 757 P.2d at 1120-21; 19 Frank L.
4
McGuane & Kathleen A. Hogan, Colorado Practice Series: Family
Law & Practice § 26:17, Westlaw (2d ed. database updated May
2017).
¶ 12 Father argues that, under section 14-10-115(7)(a)(II)(E), for
combined incomes above the highest level of the schedule, the child
support obligation at the highest level is the presumptive amount
under the guidelines, such that any greater award constitutes a
deviation under section 14-10-115(8)(e). We are not persuaded.
¶ 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. § 14-10-115(7)(a)(II)(E) (emphasis
added). Consistent with this language, cases from this court
describe the support amount at the highest level of the schedule in
this circumstance as the “minimum” presumptive amount of
5
support, as opposed to the presumptive amount of support. See,
e.g., In re Marriage of Ludwig, 122 P.3d 1056, 1060 (Colo. App.
2005); In re Marriage of Antuna, 8 P.3d 589, 597 (Colo. App. 2000);
Van Inwegen, 757 P.2d at 1120.
¶ 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 section 14-10-115(8)(e). However, deviation does
not apply when the court awards more than the amount of support
from the highest income level of the schedule. Rather, in that
circumstance, the court exercises its discretion to determine an
appropriate amount of support based on relevant factors, including
those listed at section 14-10-115(2)(b)(I)-(V). See Schwaab, 794
P.2d at 1113; Van Inwegen, 757 P.2d at 1120-21; cf. In re Marriage
of Nimmo, 891 P.2d 1002, 1007 (Colo. 1995) (noting that the child
support guidelines “were not enacted to prevent an increase in a
child’s standard of living by denying a child the fruits of one
parent’s good fortune after a divorce”); In re Marriage of Bohn, 8
P.3d 539, 541-42 (Colo. App. 2000) (upholding child support
obligation set at twice the amount of the child’s needs when parent
had won lottery and noting that “[n]othing in the child support
6
statute precludes the trial court from ordering a support payment
that exceeds the known needs of the child”). As a division of this
court described the standard in Schwaab, “it is to be presumed,
subject to rebuttal, that the minimum amount of support is that set
forth in the highest level of the guidelines;” however, “[t]he actual
level of support required . . . will depend upon the court’s exercise
of its discretion” in applying the section 14-10-115(2)(b) factors.
794 P.2d at 1113.
¶ 15 Based on these authorities and the plain language of section
14-10-115(7)(a)(II)(E), because the district court did not award less
than the highest amount indicated by the statutory schedule, it did
not err in failing to treat the highest amount as presumptive. To
the extent other divisions of this court have held otherwise and
required deviation findings in this context, we decline to follow
those cases. See, e.g., In re Marriage of Upson, 991 P.2d 341, 344-
45 (Colo. App. 1999); see also People v. Abu-Nantambu-El, 2017
COA 154, ¶ 88 (“[O]ne division of the court of appeals is not bound
by a decision of another division.”).
¶ 16 Had the legislature intended the amount of child support at
the highest level of the income schedule to be the presumptive
7
amount of support in all cases where the parents’ combined
incomes exceed the highest level 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 instead stated that the presumptive
obligation in such cases “shall not be less than” the highest
amount. § 14-10-115(7)(a)(II)(E). We apply the statute as its plain
language dictates. See Paige, ¶ 9.
¶ 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 per month — should
be presumed at the level of parents who earn a combined $30,000
per month conflicts with the “Income Shares Model” on which
Colorado’s child support guidelines are based. See Nimmo, 891
P.2d at 1006. That model assumes that a certain percentage of the
parents’ combined income in an intact household will be spent on
8
their children and calculates child support obligations accordingly.
Id. at 1006-07. The model was formulated to address concerns that
child support levels were being set too low and that children were
suffering a decrease in their standard of living after their parents
divorced. Id. As the supreme court in Nimmo recognized, children
are not locked into their parents’ marital standard of living until
emancipation, but rather are entitled to share in a parent’s good
fortune, such as father’s significant increase in income here, after a
divorce. See id. at 1007; see also Bohn, 8 P.3d at 542.
¶ 18 It would accordingly not be appropriate under the Income
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’ circumstances; (2) recognizing
the minimum presumptive amount under the guidelines; and (3)
then using its discretion to determine a higher amount based on
the section 14-10-115(2)(b) factors.
9
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, unreasonable, 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 section 14-10-115(2)(b) and that it
had done so. As noted supra Part II.B, the court was not required
to make deviation findings under section 14-10-115(8)(e) because
there was no presumptive support amount here.
10
¶ 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 father had done very well financially since the dissolution.
See § 14-10-115(2)(b)(II), (III), (V) (court considers both parents’
financial resources and standard of living child would have enjoyed
had marriage not ended). The court noted the disparity in the
parties’ abilities to provide for shared activities and experiences
with the child, and it credited mother’s concern that this disparity
would have an impact on her relationship with the child as he grew
older. It further found mother credible in her testimony that she
would spend child support payments to raise the child’s standard of
living, and it found that it was reasonable for her to want to save for
his future college expenses even though doing so was not legally
required. See § 14-10-115(2)(b)(IV) (court is to consider child’s
educational needs).
¶ 23 The court’s findings are supported by the record. Mother
testified to the differences in the level of 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
11
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 provide, including numerous trips with the child;
however, he argues on appeal that the court did not consider
additional financial circumstances, such as his tax liability and a
significant debt obligation, that affected his ability to pay support.
Nor, he argues, did the court acknowledge mother’s monthly
surplus as a financial resource.
¶ 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.
12
¶ 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 spending 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 section 14-10-115(11)(a)(II), which allows
a court to apportion only a child’s transportation expenses between
the parties, see In re Marriage of Elmer, 936 P.2d 617, 622-23 (Colo.
App. 1997), is misplaced. That statute by its plain terms applies
only to transportation expenses for travel between the parents’
homes for parenting time. See § 14-10-115(11)(a)(II); Elmer, 936
P.2d at 622-23. It does not apply when the court is exercising its
discretion to determine child support for high income parents under
sections 14-10-115(2)(b) and 14-10-115(7)(a)(II)(E). Further, even if
it did apply in that context, it allows the court to include an
accompanying parent’s travel expenses for a child under the age of
twelve.
13
¶ 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 section 14-10-115(2)(b). By considering that factor, the court
did not order father to pay postsecondary education expenses in
contravention of section 14-10-115(13)(a), as father argues.
¶ 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 section 14-10-115(2)(b) factors. We
conclude that its findings under those factors are sufficient to
support the amount of child support it ordered. Cf. Ludwig, 122
P.3d at 1060 (remanding for additional findings under the statutory
factors to support extrapolation when the court had made no
findings concerning the child’s specific needs); Van Inwegen, 757
P.2d at 1121 (“Inasmuch as the trial court here set child support by
mechanically extrapolating the amounts specified in the guideline,
it did not consider the statutorily specified relevant factors. Thus,
14
its order represents an abuse of discretion and cannot stand.”). But
cf. Upson, 991 P.2d at 344-45 (applying deviation standard and
concluding that general findings concerning child’s needs were
insufficient). Thus, we discern no abuse of the discretion provided
to the court in this situation. See § 14-10-115(7)(a)(II)(E); see also
Bohn, 8 P.3d at 542.
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 moved 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.” § 14-10-122(1)(d), C.R.S.
2017; see In re Marriage of Nelson, 2012 COA 205, ¶ 40.
¶ 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 was able to pay the retroactive
15
maintenance). Thus, the court did not abuse its discretion in
applying the statute here, and because father did not argue a basis
for undue hardship or substantial injustice, it also did not err in
not addressing that issue.
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 Section 14-10-119 empowers the trial court to apportion costs
and fees equitably between parties based on their relative ability to
pay. In re Marriage of Gutfreund, 148 P.3d 136, 141 (Colo. 2006).
Courts are allowed great latitude under the statute to craft attorney
fees orders appropriate to the circumstances in a given case. Id.;
see Davis, 252 P.3d at 538 (decision whether to award fees under
section 14-10-119 will not be disturbed absent abuse of discretion).
¶ 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
16
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
section 13-17-102, C.R.S. 2017, contending that the appeal is
substantially frivolous. We deny the request.
¶ 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.”
17
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.
18