In re Marriage of Boettcher — Family Law

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

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 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

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 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.

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¶ 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.

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 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

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 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

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 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

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 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

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 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.

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 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.

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¶ 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

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 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.

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¶ 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.

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¶ 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,

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 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

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 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.”

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 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.

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