In Re the Marriage Nimmo

Justice MULLARKEY

concurring in part and dissenting in part:

The majority affirms in part and reverses in part the court of appeals’ decision in In re Marriage of Seanor, 876 P.2d 44 (Colo.App.1993). Because I would affirm the court of appeals’ decision, I respectfully dissent from the partial reversal.

The majority in this case holds that “[t]he source of money available to Ms. Seanor is not the relevant factor,” maj. op. at 1006, and, in order to determine Ms. Seanor’s income, the majority allows discovery of all amounts Mr. Seanor has paid directly to her. Id. at 1008. It excludes direct payments made by Mr. Seanor to third parties for household expenses. Id. Because I do not believe that such family expenses, whether paid by Ms. Seanor with cash provided to her by Mr. Seanor or paid by Mr. Seanor directly to third parties, are “income” under the Uniform Dissolution of Marriage Act (UDMA), I would hold that none of the information requested in the interrogatories is discoverable.

Under C.R.C.P. 26, discovery is permitted for “any matter, not privileged, which is relevant to the subject matter involved in the pending action.... ” The purpose of discovery is to include production of all relevant evidence, to eliminate surprises at trial, and to simplify issues. J.P. v. District Court In and For 2nd Judicial Dist. of Denver, 873 P.2d 745 (Colo.1994). Parties are permitted to discover evidence that is relevant or reasonably calculated to lead to the discovery of relevant information. Mortinelli v. District Court In and For City & County of Denver, 199 Colo. 163, 612 P.2d 1083, (1980).

In the motion to compel answers to interrogatories, Mr. Nimmo requests the following:

6. List all gifts, including without limitation, jewelry, clothes, entertainment, travel, and restaurant meals, provided to you or to the children of the marriage by Terry *1009Seanor since May 1990, separately identifying the values of each at the time such gifts were provided.
7. List all amounts paid by Mr. Seanor either directly to you or to third parties from which you have received a benefit (for example, but not by way of limitation, attorney’s fees, maid service, cable television, mortgage payments, car and home repairs, car, home, health, dental or other insurance, and utilities), separately identifying each payee and the amount received by each and the purpose of the payment.
8. List all assets that you have purchased for which Mr. Seanor has contributed to the cost, separately identifying for each asset the dollar amounts paid by you and Mr. Seanor.
List any health, automobile, homeowners or other insurance covering you or your assets, separately identifying in each case the premiums paid thereon, and whether the payments are paid by you or another person, naming such person.

I interpret this motion to request discovery of all the ordinary and necessary household expenses paid by Mr. Seanor for his household which includes Ms. Seanor and Mr. Nimmo’s children. In my view, this information is not relevant and therefore not discoverable because: (1) such expenses are not income to Ms. Seanor for purposes of the child support guidelines; (2) the stepparent, Mr. Seanor, has no obligation to support Mr. Nimmo’s children; and (3) this discovery request is an impermissible attempt to circumvent the trial court’s refusal to impute income to Ms. Seanor because the court found that Ms. Seanor was not intentionally unemployed or underemployed.

First, nothing in the child support guidelines specifically defines items normally purchased and consumed within a family 'relationship as income.1 The child support guidelines attempt to calculate “child support based upon the parents’ combined adjusted gross income ... [as] if the parents and children were living in an intact household.” § 14 — 10—115(4)(a), 6B C.R.S. (1987). The stepparent’s income and his support of his family unit thus are not relevant because that income and support would not be available if the parents and children were living in an intact household.

Second, the effect of allowing discovery of expenses paid by Mr. Seanor is to ascribe support obligations to the stepparent by imputing portions of his income to Ms. Seanor. Under existing law, courts should not consider the income of a stepparent when determining income for child support purposes unless the stepparent adopts the child. See In re Marriage of Conradson, 43 Colo.App. 432, 604 P.2d 701 (1979). Had the legislature intended to include any aspect of a stepparent’s income when determining child support responsibility, it would specifically be included under section 14 — 10—115(7)(a)(I)(A). Because the legislature has not included such a consideration, expenses paid from Mr. Sea-nor’s income are irrelevant to determining child support. See R. Williams, Development of Guidelines for Child Support Orders (1987); Marriage of Conradson, 43 Colo.App. at 432, 604 P.2d at 701.

Third, the discovery is an attempt to circumvent the trial court’s ruling on imputed income. The child support guidelines allow the court to impute income to a parent if that parent chooses not to work. To more equally divide the child support obligations under section 14-10-115(7)(b)(I), “[i]f a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income.” In this case, however, the trial court refused to impute income to Ms. Seanor, finding that she was not presently employable. Thus, the trial court has already determined that any benefits obtained by Ms. Seanor as a result of her new relationship do not reflect income that could be imputed to Ms. Seanor.

*1010Finally, I emphasize that payment of ordinary household expenses is not fairly characterized as a gift from one spouse to the other. Whether employed outside the home or not, each spouse makes a contribution to the family unit which takes the payment of household expenses by one spouse out of the gift category. Moreover, I disagree with the majority’s definition of gift. The court holds that “gifts” under the UDMA are relevant to a determination of child support when a gift is “regularly received from a dependable source.” Maj. op. at 1008. Although a gift may be regularly received from a dependable source, it may also be a one-time gift. Under the Colorado gift tax statute, for instance, where property is transferred for less than adequate and full consideration in money, the amount by which the fair market value of the property exceeds the value of the consideration shall be deemed a gift. § 39-25-107, 16B C.R.S. (1994). Although the tax definition is not controlling, it lends support to my view that a gift can be a single transaction rather than a “regular occurrence.”

In conclusion, I would rule that none of the information requested by Mr. Nimmo is relevant to determining Ms. Seanor’s income because the enumerated expenses normally arise from a marital relationship. As such, they cannot be construed as income and are not discoverable. I would also hold that a gift does not have to be regularly received from a dependable source under the UDMA.

. Section 14-10-115(7)(a)(I)(A), 6B C.R.S. (1987 & 1994 Supp.), defines gross income, in relevant part, as:

income from any source, and includes, but is not limited to income from salaries, wages, including tips calculated pursuant to the federal internal revenue service percentage of gross wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and alimony or maintenance received.