of Alvis , 446 P.3d 963 ( 2019 )

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
June 27, 2019
2019COA97
No. 18CA0251, Marriage of Alvis — Family Law — Post-
Dissolution — Child Support — Adjustments for Health Care
Expenditures for Children — Extraordinary Medical Expenses
In this post-dissolution of marriage case where the parties
share parenting time equally, a division of the court of appeals
concludes that the first $250 of uninsured medical expenses is part
of the shared basic child support obligation and therefore neither
party may request reimbursement from the other for that expense.
The division rejects father’s argument that because he pays a larger
share of the basic child support obligation, mother should pay the
entire $250 expense. Rather, the division holds that, because the
$250 expense is part of the shared basic child support obligation,
each parent must pay uninsured medical expenses incurred during
his or her parenting time, until the total for each child reaches
$250, at which time the parents may seek reimbursement in
proportion to their adjusted gross incomes. Accordingly, the
division affirms the district court’s order.
COLORADO COURT OF APPEALS 2019COA97
Court of Appeals No. 18CA0251
El Paso County District Court No. 11DR2085
Honorable Deborah J. Grohs, Judge
In re the Marriage of
Michelle Lea Alvis,
Appellee,
and
Norman Foster Darrell Alvis,
Appellant.
ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE HARRIS
Richman and Tow, JJ., concur
Announced June 27, 2019
Weeks & Luchetta, LLP, Alexander M. Masterson, Colorado Springs, Colorado,
for Appellee
Law Office of Greg Quimby, P.C., Greg Quimby, Erica Vasconcellos, Cody
Christian, Colorado Springs, Colorado, for Appellant
¶1 In this post-dissolution of marriage proceeding involving
Michelle Lea Alvis (mother) and Norman Foster Darrell Alvis (father),
father appeals the district court’s order concluding that under
section 14-10-115(10)(h)(I) and (II), C.R.S. 2018, neither parent can
request reimbursement from the other parent for uninsured
medical expenses for amounts less than $250 per child per year.
¶2 To resolve father’s appeal, we must address an issue that has
not been decided in Colorado — who bears responsibility for the
first $250 of uninsured medical expenses per child per year when
the parents share parenting time equally. Because we decide that
those expenses are accounted for in the parents’ shared basic child
support obligation, we affirm. We also remand the case for
determination of mother’s appellate attorney fees request under
section 14-10-119, C.R.S. 2018.
I. Background
¶3 The parties’ marriage was dissolved in March 2012. The court
found that equal parenting time for the parties’ three children was
in the children’s best interests and declined to designate a primary
residential parent. Based on the child support schedule, the court
ordered father to pay mother $453 per month in child support.
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¶4 In November 2017, father moved for an order requiring mother
to pay the first $250 of uninsured medical expenses per child per
year. In its order, the court “reminded [the parties] that [mother] is
responsible for the first $250 of uninsured medical expenses per
child per year.”
¶5 Mother then moved for relief under C.R.C.P. 59(a), contending
that the district court had discretion to allocate to either parent the
first $250 of uninsured medical expenses per child per year. She
asked the court to allocate the expenses in proportion to the parties’
incomes. Father reiterated his view that they were mother’s
responsibility because she was receiving child support.
¶6 The court disagreed with both parties and interpreted section
14-10-115(10)(h)(I) and (II) “to mean that neither party can request
reimbursement of uninsured medical expenses from another party
for amounts less than $250 per child per year.”
II. Uninsured Medical Expenses
¶7 Father contends that the district court erred in ruling that
neither parent can request reimbursement from the other parent for
the first $250 of uninsured medical expenses per child per year. He
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contends that mother, because she receives child support, should
bear those expenses. We disagree.
A. Standard of Review
¶8 Interpretation of the child support statutes is a question of law
that we review de novo. In re Marriage of Paige, 2012 COA 83, ¶ 9.
When we interpret a statute, we must ascertain and give effect to
the legislature’s intent. In re Marriage of Joel, 2012 COA 128, ¶ 18.
“We look first to the plain language of the statute, and if that
language is clear and unambiguous on its face, we apply the statute
as written.” Paige, ¶ 9 (quoting In re Marriage of Schmedeman, 190
P.3d 788, 790 (Colo. App. 2008)).
¶9 But if the plain language is ambiguous or if the statute is
silent on an issue that would be expected to be within its scope, we
enlist tools of statutory interpretation to discern the legislature’s
intent. People v. Ray, 2018 COA 158, ¶ 16. Those tools include
legislative history, prior law, the consequences of a particular
construction, and the goal of the statutory scheme. In re Marriage
of Ikeler, 161 P.3d 663, 668 (Colo. 2007). We must interpret the
statute “to give consistent, harmonious, and sensible effect to all its
parts.” Id. at 667.
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B. Legal Standards
¶ 10 Parents share an obligation to support their children to the
best of their abilities. People v. Martinez, 70 P.3d 474, 477 (Colo.
2003); In re Marriage of Bregar, 952 P.2d 783, 785 (Colo. App.
1997).
¶ 11 Accordingly, the child support statute provides for a shared
basic child support obligation, plus adjustments for “extraordinary”
expenses.
¶ 12 The basic child support obligation is determined by applying
the schedule in section 14-10-115(7)(b) to the parents’ combined
gross incomes, which yields a presumptive amount necessary to
cover the child’s basic needs. § 14-10-115(7)(a)(I); In re Marriage of
Davis, 252 P.3d 530, 534 (Colo. App. 2011). The basic obligation is
then divided between the parents in proportion to their incomes.
§ 14-10-115(7)(a)(I). This shared obligation is supposed to provide
for the child’s basic needs — things like food, shelter, and clothing.
See In re Marriage of White, 240 P.3d 534, 540 (Colo. App. 2010)
(the noncustodial parent may be obligated to make child support
payments to the custodial parent so that the custodial parent can
provide the child with food, shelter, and other necessities),
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superseded by statute on other grounds, Ch. 103, sec. 3, § 14-10-
122(5), 2013 Colo. Sess. Laws 354, as recognized in In re Marriage
of Garrett, 2018 COA 154, ¶ 31.
¶ 13 But children frequently have needs that fall outside the bare
necessities covered by the basic child support obligation. Thus, the
child support statute also contemplates “extraordinary” expenses.
Extraordinary expenses can be predictable and recurring, like the
cost of contact lenses or physical therapy for a long standing injury,
or they can be unexpected, like the cost of repairing a broken tooth.
Predictable and recurring extraordinary expenses are usually added
to the basic child support obligation, allocated in proportion to the
parties’ incomes, and become part of the monthly child support
order. See, e.g., § 14-10-115(9)(a) (child care costs); § 14-10-
115(10)(b) (health insurance premiums). Because the monthly
support order already accounts for these extraordinary expenses,
neither parent may separately seek reimbursement for them.
¶ 14 The unexpected extraordinary expenses, on the other hand,
cannot be accounted for in the monthly support order. So when a
child breaks her tooth on a trampoline or needs a few sessions of
grief counseling after a grandparent dies, those expenses are paid
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as they arise, and the parent who pays them may then seek
reimbursement from the other parent for that parent’s proportional
share.
¶ 15 This appeal involves the statutory provision that addresses
extraordinary medical expenses. Section 14-10-115(10)(h) provides
in relevant part as follows:
(h)(I) Any extraordinary medical expenses
incurred on behalf of the children shall be
added to the basic child support obligation and
shall be divided between the parents in
proportion to their adjusted gross incomes.
(II) Extraordinary medical expenses are
uninsured expenses, including copayments
and deductible amounts, in excess of two
hundred fifty dollars per child per calendar
year. Extraordinary medical expenses include,
but need not be limited to, such reasonable
costs as are reasonably necessary for
orthodontia, dental treatment, asthma
treatments, physical therapy, vision care, and
any uninsured chronic health problem.
C. The District Court’s Order
¶ 16 As a threshold matter, we disagree with the parties’
interpretation of the district court’s order. The district court
interpreted section 14-10-115(10)(h)(I) and (II) “to mean that neither
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party can request reimbursement of uninsured medical expenses
from another party for amounts less than $250 per child per year.”
¶ 17 Both parties interpreted the order to mean that each parent
must pay $250 per child per year, for a total of $500 per child per
year, before seeking reimbursement from the other parent. The
district court, however, did not say that each parent is separately
responsible for $250 of uninsured medical expenses per child per
year. Rather, the court ruled that the parents cannot seek
reimbursement for uninsured medical expenses until a total of
$250 is spent on a child in a single year.
D. First $250 of Uninsured Medical Expenses Per Child Per Year
¶ 18 With that threshold issue resolved, we turn to the merits of
father’s contention that mother is responsible for the first $250 of
uninsured medical expenses per child per year because she receives
child support from him. We are not persuaded.
¶ 19 By its plain language, section 14-10-115(10)(h)(II) specifically
excludes from the definition of extraordinary medical expenses the
first $250 of uninsured medical expenses per child per year. In
light of the statutory scheme, if the $250 is not an extraordinary
expense, it must be part of the basic child support obligation. See
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BP Am. Prod. Co. v. Patterson, 185 P.3d 811, 813 (Colo. 2008) (“[A]
provision existing as part of a comprehensive statutory scheme
must be understood, when possible, to harmonize the whole.”).
¶ 20 The legislative history supports our reading. When the
legislature last modified the definition of extraordinary medical
expenses, the bill’s sponsor indicated that the basic child support
schedule assumes that each child will incur $250 per year in
uninsured medical expenses. Hearings on S.B. 02-21 before the S.
Judiciary Comm., 63rd Gen. Assemb., 1st Sess. (Feb. 5, 2002)
(statement of Sen. Peggy Reeves).
¶ 21 Thus, we conclude that the first $250 of uninsured medical
expenses per child per year is included in the shared basic child
support obligation.
¶ 22 Father agrees that uninsured medical expenses of less than
$250 constitute a “basic need” covered by the basic child support
obligation. But he says that, because the expense is part of the
basic child support obligation, the parent who receives child
support is obligated to pay it.
¶ 23 That argument is inconsistent with the fundamental premise
of a shared basic child support obligation. Under the statutory
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scheme, both parents contribute, according to their abilities, an
amount necessary to cover the children’s ordinary living expenses.
When the parents share physical care of the children, as they do in
this case, each parent’s share of the support obligation is
calculated, and “[t]he parent owing the greater amount of child
support shall owe the difference between the two amounts . . . .” §
14-10-115(8)(b). Then, during his or her parenting time, each
parent is expected to cover the children’s expenses accounted for in
the monthly support order. See id. (recognizing that when parents
have shared physical care of the children, certain basic expenses
will be duplicated).
¶ 24 In this case, the parties’ combined monthly income of
approximately $10,000 yielded a presumptive amount of basic child
support of $3000 for the three children, of which father was
responsible for roughly seventy percent ($2023) and mother for
thirty percent ($987). Mother and father share parenting time just
about equally, so each parent owes about fifty percent of his or her
share to the other parent: mother owes father $492 and father owes
mother $1014. After an adjustment for paying health insurance for
the children, father’s share owed to mother is reduced to $945.
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Thus, after offsetting mother’s share, father pays mother $453. In
this way, each parent can cover the monthly expenses of the
children when he or she has physical care of them.
¶ 25 According to father, the first $250 of uninsured medical
expenses should be paid from the amount he sends to mother. But
why would that particular expense, which is accounted for (like all
basic necessities) in the monthly child support order, fall entirely to
mother? If, during his parenting time, father takes the children out
to eat or to the mall to buy shoes, is mother obligated to pay those
expenses, too, out of the $453 child support payment? Under
father’s reasoning, mother should be responsible for all of the
children’s ordinary living expenses merely because she receives an
offsetting child support payment from him. We reject that
interpretation of the statutory scheme as absurd. See State v.
Nieto, 993 P.2d 493, 501 (Colo. 2000) (in construing a statute, court
must seek to avoid an interpretation that leads to an absurd result).
¶ 26 Imagine if, instead of offsetting mother’s share of the child
support obligation, each parent sent the other his or her share. The
net result would be the same, but mother’s contribution would be
more obvious. And the flaw in father’s logic would be as well.
10
Father is no more entitled to a reimbursement for his expenditures
for the children’s basic needs than mother is for hers.
¶ 27 Expenses covered by the basic support obligation have already
been accounted for and divided between the parents in proportion
to their incomes and therefore are not reimbursable. Thus, each
parent must pay uninsured medical expenses incurred during his
or her parenting time, until the total for each child reaches $250, at
which time the parents may seek reimbursement in proportion to
their adjusted gross incomes. See § 14-10-115(10)(h)(I)-(II).
¶ 28 We are not persuaded otherwise by In re Marriage of Marson,
929 P.2d 51, 52-53 (Colo. App. 1996) (construing prior version of
statute which defined extraordinary medical expenses as those in
excess of $100 for a single illness or condition), and In re Marriage
of Finer, 920 P.2d 325, 330 (Colo. App. 1996) (same). In those
cases, divisions of this court assumed that the “custodial” parent
was obliged to pay the excluded amount of uninsured medical
expenses. But the question of how to characterize and allocate this
expense was not squarely before either division. In any event, we
do not view those cases as necessarily inconsistent with our
conclusion. It makes sense for a “custodial” parent (in modern-day
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parlance, the parent who has exclusive or near-exclusive physical
care of the child) to be responsible for paying the child’s ordinary
living expenses (with the financial assistance of the other parent).
Here, though, neither mother nor father qualifies as the “custodial”
parent, and thus the reasoning of Marson and Finer does not apply.
¶ 29 We therefore affirm the district court’s order that neither
parent can seek reimbursement for uninsured medical expenses of
less than $250 per child per year.1
III. Mother’s Request for Appellate Attorney Fees
¶ 30 Mother requests her appellate attorney fees under section 14-
10-119, based on the parties’ unequal financial circumstances.
Because the district court is better equipped to resolve the factual
issues regarding the parties’ current financial circumstances, we
remand mother’s request to the district court. See In re Marriage of
Kann, 2017 COA 94, ¶ 84.
IV. Conclusion
1 We recognize that the basic child support calculation assumes
that each parent will incur some portion of the $250 of uninsured
medical expenses for each child. If the district court finds that one
parent is more likely to incur all of those expenses, we do not mean
to preclude the court from deviating from the basic support
obligation to reflect and remedy that inequity. See § 14-10-
115(8)(e), C.R.S. 2018.
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¶ 31 The district court’s order is affirmed, and the case is remanded
for determination of mother’s appellate attorney fees request under
section 14-10-119.
JUDGE RICHMAN and JUDGE TOW concur.
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