In re Marriage Heine , 444 P.3d 812 ( 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
November 1, 2018
2018COA154
No. 17CA1219, In re Marriage Heine — Family Law — Post-
Dissolution — Parenting Time — Modification of Child Support
A division of the court of appeals considers a post-dissolution
of marriage dispute involving the award of retroactive child support
in a district court’s order modifying child support. The division
concludes that, when a voluntary change in parenting time occurs,
a court may retroactively enter a child support order against either
parent without regard to the parent’s status as obligor or obligee
under the existing child support order.
The resolution of this dispute requires the division to interpret
a 2013 amendment to the child support statute, § 14-10-122(5),
C.R.S. 2018, that reconciled two contradictory decisions issued by
divisions of the court. The division determines that the legislature
intended the amendment to reflect the decision in In re Marriage of
Emerson, 77 P.3d 923 (Colo. App. 2003), prescribing a broad
construction of the child support statute allowing courts to shift the
support duty from the obligor to the obligee when parental care is
voluntarily transferred. Thus, the decision in In re Marriage of
White, 240 P.3d 534 (Colo. App. 2010), finding that the statute
permitted modification as to the obligor only, was legislatively
overruled by the 2013 amendment. Therefore, the division affirms
the district court’s order retroactively assigning a child support
obligation.
COLORADO COURT OF APPEALS 2018COA154
Court of Appeals No. 17CA1219
Boulder County District Court No. 08DR179
Honorable Andrew R. Macdonald, Judge
In re the Marriage of
Alexandre Ford Garrett,
Appellant,
and
Daniel Meyer Heine,
Appellee.
ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Bernard and Welling, JJ., concur
Announced November 1, 2018
Alexandre Ford Garrett, Pro Se
Daniel Meyer Heine, Pro Se
¶1 In this post-dissolution of marriage proceeding involving the
children of Alexandre Ford Garrett (mother) and Daniel Meyer Heine
(father), mother appeals the district court’s order modifying child
support and awarding retroactive child support. We affirm the
portion of the order retroactively establishing a child support order,
reverse the portion of the order determining mother’s income, and
remand the case for further proceedings. In so doing, we interpret a
2013 amendment to the child support statute that resolved
conflicting decisions from divisions of our court concerning parents’
responsibilities to pay child support when a voluntary change in
parenting time occurs.
I. Relevant Facts
¶2 Mother and father, the parents of two children, were divorced
in 2008.
¶3 In 2014, both parents moved to modify parenting time. In
February 2015, the district court entered a week on/week off
parenting time schedule and modified child support accordingly.
The parents then agreed in June 2015 to modify the week on/week
off parenting time schedule such that father would be the primary
residential parent and mother would have parenting time every
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other weekend and one evening per week. Based on the revised
parenting time schedule, father began paying mother a reduced
amount of child support. Father then moved to modify child
support in July 2016.
¶4 The parties again agreed to change parenting time in February
2017. Mother became the primary residential parent of one child
while father remained the primary residential parent of the other
child.
¶5 After a March 2017 hearing, the district court made the
following findings with respect to the parties’ incomes for child
support purposes:
 father was capable of earning $20,000 per month;
 mother was doing contract work and earning $2000 to
$4000 per month;
 mother had an extensive background in public relations,
marketing, and communications and had historically
earned at least $6000 per month until she lost her job in
2016;
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 mother believed that the job market was saturated and
that going forward she would not be able to earn the
equivalent of her prior salary; and
 the court “was not provided with credible evidence” that
mother was incapable of reaching her income potential if
employed full time in her field.
¶6 Based on these findings, the court calculated child support
using $6000 per month as mother’s income. The court further
determined that because of the substantial changes in parenting
time beginning in June 2015, mother should have been paying
child support to father and therefore owed him $21,389 in
arrearages. Offsetting mother’s arrearages against father’s current
child support obligation, the court ordered father to pay mother
$225.58 per month for twenty-four months and then $1116.79 per
month thereafter.
II. Income Imputation
¶7 Mother contends that the district court erred when it imputed
$6000 per month in income to her without finding she was
voluntarily underemployed. We agree.
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A. Standard of Review
¶8 We review child support orders for abuse of discretion. In re
Marriage of Davis, 252 P.3d 530, 533 (Colo. App. 2011).
¶9 Whether potential income should be imputed to a parent in
determining child support is a mixed question of fact and law.
People v. Martinez, 70 P.3d 474, 480 (Colo. 2003). We defer to the
district court’s factual findings if they are supported by the record.
Id. We review the district court’s application of legal standards and
legal conclusions de novo. In re Marriage of Connerton, 260 P.3d
62, 65 (Colo. App. 2010).
B. Legal Principles
¶ 10 If a parent is voluntarily underemployed, child support must
be calculated based on that parent’s potential income. § 14-10-
115(5)(b)(I), C.R.S. 2018; see In re Marriage of Krejci, 2013 COA 6,
¶ 28. “Voluntarily” in this context means that the parent is
underemployed “intentionally, of free will.” Martinez, 70 P.3d at
477-78. Thus, in order to impute potential income to a parent, the
district court must find that the parent is shirking his or her child
support obligation by unreasonably forgoing higher-paying,
obtainable employment. Id. at 480; see Krejci, ¶ 28. Imputation of
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income is an exception to computing child support based on actual
income and should be applied with caution. Martinez, 70 P.3d at
478-79.
¶ 11 If the court finds that a parent is voluntarily underemployed
after losing a job, it must determine what the parent can reasonably
earn and contribute to the child’s support by considering the
following factors:
[the parent’s] firing and post-firing conduct;
the amount of time the parent spent looking
for a job of equal caliber before accepting a
lower paying job; whether the parent refused
an offer of employment at a higher salary;
whether the parent sought a job in the field in
which he or she has experience and training;
the availability of jobs for a person with the
parent’s level of education, training, and skills;
the prevailing wage rates in the region; the
parent’s prior employment experience and
history; and the parent’s history of child
support payment.
Id. at 480. The court’s findings must be sufficiently specific so as to
inform the appellate court of the basis for its order. In re Marriage
of Campbell, 140 P.3d 320, 324 (Colo. App. 2006).
C. Analysis
¶ 12 Mother presented evidence at the hearing about her work in
marketing and public relations and about her earnings. Her tax
5
returns, admitted as exhibits during the hearing, reflected that her
annual income from her business was $26,946 in 2014 and
$23,533 in 2015 and that she earned $52,042 in 2016.
¶ 13 Mother testified that two months after losing her job in
November 2016, she accepted a lower-paying position in the design
field, earning $500 per week for eight weeks and then commissions
at a rate of three to five percent per sale. Additionally, she accepted
a short-term contract position with a digital marketing company
where she had the potential to earn between $2000 and $4000 per
month.
¶ 14 Mother further testified about her efforts to secure a higher-
paying position in her field. She consulted online resources, sent
out 150 resumes, and had many interviews, yet had not secured a
position because, in her opinion, the public relations market was
saturated.
¶ 15 The district court made findings regarding mother’s income
potential, and some of those findings appear to touch on the
Martinez factors. See 70 P.3d at 480. For example, the court
considered mother’s prior employment experience and history as
well as her testimony that the market for public relations positions
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was saturated. However, it did not explicitly find that mother was
voluntarily underemployed and shirking her child support
obligation, and the record does not support such findings. See
Campbell, 140 P.3d at 324. Nor did the court make any findings
concerning the reasonableness of mother’s efforts to secure a full-
time position at her previous salary. See Krejci, ¶ 29.
¶ 16 Thus, we remand the case to the district court for additional
findings, reconsideration of mother’s income, and recalculation of
child support accordingly. See Martinez, 70 P.3d at 481; Krejci,
¶¶ 27-30; Campbell, 140 P.3d at 324-25.
III. Retroactive Child Support
¶ 17 Mother further contends that the district court erred in
applying section 14-10-122(5), C.R.S. 2018, and ordering her to pay
retroactive child support back to June 2015, when the parties’
mutually agreed upon change in physical care of the children took
place. We disagree with mother’s contention that imposing a
retroactive child support obligation under these circumstances is
prohibited.
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A. Standard of Review
¶ 18 We review child support orders for an abuse of discretion. In
re Marriage of Atencio, 47 P.3d 718, 720 (Colo. App. 2002). We
review the district court’s application of legal standards and legal
conclusions de novo. Connerton, 260 P.3d at 65.
B. Rules of Statutory Interpretation
¶ 19 Resolution of this appeal requires us to determine the meaning
of section 14-10-122(5), which is a question of law that we review
de novo. In re Marriage of Joel, 2012 COA 128, ¶ 18.
¶ 20 When interpreting a statute, we look first to its plain language,
giving the words and phrases their plain and ordinary meanings.
§ 2-4-101, C.R.S. 2018; Joel, ¶ 18. If the statute is clear, we apply
it as written. Joel, ¶ 18. But if the statute is ambiguous, or
susceptible of more than one reasonable meaning, we may
determine the General Assembly’s intent by looking to the legislative
history. In re Marriage of Ikeler, 161 P.3d 663, 668 (Colo. 2007).
“Our task is to choose a construction that gives effect to the
legislature’s intent and that serves the purpose of the overall
statutory scheme.” Id.8
C. Legislative History and Legal Principles
¶ 21 Ordinarily, a child support modification order is effective as of
the date the motion to modify is filed. See §§ 14-10-122(1)(a), (d);
see also In re Marriage of Paige, 2012 COA 83, ¶ 7. However, when
there has been a court-ordered, voluntary, or mutually agreed upon
change in the physical care of a child, child support is modified as
of the date of the change in care, rather than as of the date the
motion to modify is filed. § 14-10-122(5); see also Paige, ¶ 7.
¶ 22 Prior to 2013, when a mutually agreed upon change in
physical care occurred, section 14-10-122(5), C.R.S. 2012, allowed
a court to retroactively modify those “provisions for child support of
the obligor under the existing child support order.” (Emphasis
added.) Divisions of this court were split concerning whether that
language permitted a parent’s child support obligation to be
retroactively modified when the parent was not an obligor under the
existing child support order. Compare In re Marriage of White, 240
P.3d 534 (Colo. App. 2010) (construing statute according to its plain
language to find that it permitted retroactive modification as to the
obligor only), with In re Marriage of Emerson, 77 P.3d 923 (Colo.
App. 2003) (construing statute more broadly to find that it intended
9
to shift the support duty from the obligor parent to the obligee when
a mutually agreed upon change in parental care occurred).
¶ 23 In Emerson, the division concluded that the district court had
the authority to require the mother to pay child support as of the
date when the father had assumed primary care of the parties’
children, even though the mother was the obligee under the existing
child support order. 77 P.3d at 926. The mother acknowledged
that under section 14-10-122(5), as it then stated, the father’s
existing child support obligation could be terminated as of the date
of the change in the children’s care, but she argued that the statute
did not permit shifting the child support obligation to her when she
was not the obligor under the existing order. Id. at 925.
¶ 24 The division disagreed with the mother’s interpretation, noting
that if the statute were applied as she urged, the obligor parent’s
support obligation would end without an obligation being imposed
on the other parent, causing the children to suffer a corresponding
loss of support. Id. Concluding that such a result was illogical, the
division determined that the statute instead intended to shift the
support duty and the obligor’s identity when the child’s physical
care changed through a retroactive modification of the existing
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order. Id. Therefore, under the Emerson division’s interpretation,
the court was authorized to require the mother to begin paying the
father child support as of the date the children began living with the
father. Id. at 926.
¶ 25 In White, a different division of this court declined to follow
Emerson and instead concluded that the plain language of the
statute permitted only the obligor’s duty of support to be
retroactively modified. White, 240 P.3d at 538. The mother in
White agreed that the parties’ child could live with the father and
that the father could stop paying child support. Id. at 536. The
father also agreed that the mother did not have to pay child support
to him. Id. However, a year later, the father moved to modify child
support, requesting that the mother pay him support as of the date
the child began living with him. Id. Because the existing order
obligated only the father to pay child support, the division held that
the district court could properly reduce or eliminate his obligation
retroactive to the date of the change in the child’s physical care, but
that it could not impose a child support obligation on the mother as
of that date or for any period before the father moved to modify. Id.
at 538.
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¶ 26 The White division first noted that the Uniform Dissolution of
Marriage Act, sections 14-10-101 to -133, C.R.S. (2018), establishes
procedures and considerations to enable courts to determine
whether, when, and how much a parent should be required to pay
to fulfill his or her duty to support a child. Id. at 539. It observed
that under those procedures and considerations, only the
noncustodial parent qualified as the obligor under an existing child
support order, and the statute gave the obligor the choice, on
assuming primary physical care of a child, of whether and when to
file a motion requiring the other parent to begin paying child
support. Id. at 540.
¶ 27 The division also disagreed with the Emerson division’s
conclusion that a narrow interpretation of the statute would cause
a lapse in support during a child’s minority. White, 240 P.3d at
539. The White division noted that even though the existing
support order did not obligate the former custodial parent to make
child support payments, the retroactive modification as of the
change in physical care did not terminate that parent’s child
support obligation. Id. It further noted that section 14-10-122(5)
“permits the court to retroactively modify the provisions for the
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child support of the obligor in the existing order as of the date of the
change of custody to ensure that the parent who gives up custody,”
and no longer incurs the associated expenses, “does not receive a
windfall.” Id. at 540.
¶ 28 In 2013, the legislature amended section 14-10-122(5) in two
ways. First, it clarified that a district court can modify or terminate
the obligor’s child support obligation as of the date physical care
changed.
Notwithstanding the provisions of subsection
(1) of this section, when a court-ordered,
voluntary, or mutually agreed upon change of
physical care occurs, the provisions for child
support of the obligor under the existing child
support order, if modified pursuant to this
section, will be modified or terminated as of the
date when physical care was changed.
Ch. 103, sec. 3, § 14-10-122(5), 2013 Colo. Sess. Laws 354(emphasis added). Second, it added the following language: “The
provisions for the establishment of a child support order based on a
court-ordered, voluntary, or mutually agreed upon change of
physical care may also be entered retroactively to the date when the
physical care was changed.” Id. We conclude that these
modifications, when read together, still do not resolve the statute’s
13
ambiguity recognized in Emerson and White. In our view, the
statute remains susceptible of multiple interpretations — one, that
a court may modify or terminate only the obligor’s child support
obligation as of the date physical care changed, or two, that a court
may establish a new child support obligation against either parent
as of the date physical care changed.
¶ 29 In light of this ambiguity, we attempt to discern whether the
legislature intended the amendments to address the White-Emerson
conflict and, if so, whether it intended the amendments to validate
the White or Emerson division’s interpretation and application of the
statute. We must engage in this examination of legislative intent
because the statute is ambiguous. Thus, we look to the legislative
history of the 2013 amendments to section 14-10-122(5), and we
conclude that the General Assembly intended to change the statute
in favor of the Emerson division’s interpretation.
¶ 30 The amendments to section 14-10-122(5) were proposed in the
House of Representatives in February 2013. When introducing the
bill, the bill’s sponsor indicated that the proposed amendments
were based on recommendations from the Child Support
Commission. Hearings on H.B. 13-1209 before the H. Pub. Health
14
Care & Human Servs. Comm., 69th Gen. Assemb., 1st Sess. (Feb.
19, 2013) (statement of Representative May). The Child Support
Commission is charged with reviewing the child support guidelines
and recommending statutory amendments. See § 14-10-115(16).
The Commission’s 2011 report is the genesis of the legislature’s
2013 amendments to section 14-10-122(5).
¶ 31 In its report, the Commission explicitly recognized the conflict
between White and Emerson and recommended the statutory
amendments “to empower a court with discretion to retroactively
establish a child support obligation back to the date of the mutually
agreed upon change of physical care.” State of Colorado Child
Support Commission, Final Report, at 41 (2011),
https://perma.cc/2XB5-7LDR (emphasis added). The Commission
provided three reasons in support of its amendments:
1. Parents owe a continuous duty to provide
financial support for their child until
emancipation, regardless of the location of
the child’s residence;
2. The duty to provide support should not
lapse, during a child’s minority, just
because of a change in the residence of the
child; and
3. The child is the person for whom support is
due and a child should not be penalized
because the new custodial party fails to
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promptly act to seek a modification of the
existing order.
Id. Because these reasons mirror those set forth in Emerson, we
conclude that the General Assembly’s 2013 amendments to section
14-10-122(5) legislatively overrule White. Therefore, we further
conclude that the statute allows a court to retroactively enter a
child support order against either parent, as of the date of a change
in physical care of a child, regardless of the parent’s status as an
obligor or obligee under the existing child support order.
D. Application
¶ 32 In this case, mother was the obligee under the existing child
support order. In June 2015, when the parties agreed that their
children would live with father, they also agreed that father’s child
support obligation would be reduced. Father then moved to modify
child support, asking the court to retroactively establish a child
support order from June 2015 forward.
¶ 33 Even though mother was the obligee under the existing child
support order, the court, consistent with Emerson and as permitted
by the 2013 amendments to section 14-10-122(5), retroactively
established a child support order obligating mother to pay support
16
as of the date the children began living with father. We therefore
conclude that the court did not err by imposing a child support
obligation on mother beginning in June 2015.
¶ 34 However, because we cannot discern whether the district court
imposed the retroactive child support obligation as an act of
discretion or imposed it under the mistaken view that it was
required to do so, on remand, the district court must set forth the
factors it considers in determining whether to impose such an
obligation. Because we have remanded the case for the court to
reconsider mother’s income and redetermine child support
accordingly, the court must also recalculate the parties’ arrearages
under subsections 14-10-122(1)(d) and (5). Because of this
disposition, we do not address mother’s additional argument that
the court erred in assuming the parties’ incomes remained
unchanged for purposes of retroactive child support calculation. In
its discretion, the district court may consider additional evidence
from the parties.
¶ 35 Mother also argues that the court erred in awarding
retroactive child support because doing so created an undue
hardship and resulted in a substantial injustice for her, because
17
she and father had an oral contract as to the modified child
support, and because the doctrine of equitable estoppel relieved her
of her obligation to pay retroactive child support. Because mother
did not raise these arguments in the district court, however, we
may not address them here. See Melat, Pressman & Higbie, L.L.P. v.
Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18 (“It is axiomatic that
issues not raised in or decided by a lower court will not be
addressed for the first time on appeal.”); cf. In re Marriage of
Boettcher, 2018 COA 34, ¶ 32 (upholding retroactive modification
order when parent did not argue a basis for undue hardship and
substantial injustice in district court). In its discretion, however,
the district court may consider these arguments on remand.
IV. Conclusion
¶ 36 The portion of the district court’s order retroactively
establishing a child support obligation for mother is affirmed, the
portion of the order determining mother’s income is reversed, and
the case is remanded for further proceedings as provided herein.
JUDGE BERNARD and JUDGE WELLING concur.
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