In Re Marriage of White and Martin

Judge LOEB

specially concurring.

I agree with the result reached by the majority in this case, affirming the trial court's order that mother should pay child support retroactively to the date father filed his motion to modify in August 2008. However, I reach that result based on reasoning different from that employed by the majority.

In rejecting father's contention that the trial court erred by not ordering mother to pay child support retroactive to the date the parties allowed their child to move to father's residence, the majority engages in a well articulated and straightforward plain language statutory interpretation of the pertinent statutory framework. In so doing, the majority expressly declines to follow the reasoning and statutory analysis of another division of this court in In re Marriage of Emerson, 77 P.3d 923 (Colo.App.2003).

In my view, it is not necessary to interpret the statutory framework at issue here as does the majority to affirm the trial court's order. Rather, even assuming the reasoning in Emerson applies here, I believe the record as a whole, including the trial court's very detailed findings, supports the conclusion that the court did not abuse its discretion in ordering mother to pay child support to father retroactively to the date of father's motion to modify.

The underlying premise for the Emerson division's reasoning and holding is that both parents always have a duty to provide continuing support to their children in order to prevent a lapse in support. See Emerson, 77 P.3d at 925. Thus, the division interpreted section 14-10-122(5), C.R.S.2009, to mean that, in general, the burden of support, along with the identity of the obligor, shifts when children change residences from one parent to the other. Emerson, 77 P.3d at 926.

Here, the record is undisputed that there was no lapse in financial support for the child's needs during the time before father filed his motion. Rather, the record shows (and the trial court found) that while the child resided with mother, father paid all appropriate child support; that in June 2007, the parties orally agreed the child would live primarily with father; that the parties further agreed father could stop paying child support to mother at that time, but that, given his level of income, he would continue to support the child as he had before; and that they agreed mother would not have to pay child support to father, provided the child had overnight visits with mother.

When father filed his motion to modify in August 2008, mother responded by arguing she had no duty to pay child support because of her financial situation and because the parties had agreed in June 2007 that she did not have to pay child support. After holding an evidentiary hearing and reviewing substantial evidence concerning the income and financial cireumstances of both parties, the court rejected mother's argument that she had no duty to pay child support. Indeed, the court expressly said that it would not enforce the parties' oral agreement that mother would not have to pay child support. In that regard, the court found with record support that mother had the capacity to earn a substantially greater income than she was currently earning from her temporary employment, although the court recognized that mother might need some amount of time to reach that level of income. However, the *542court found that it would be "unfair" for father "to wait for a very long period of time and then file to modify child support and leave [mother] owing a very large sum." Rather, considering all of the evidence before it, including the parties' respective incomes and financial resources and father's delay in filing his motion to modify child support, the court found that the fair and equitable result here would be to order mother to begin paying child support as of the date of father's motion. The court then set mother's monetary support obligation at $512.18 commene-ing in August 2008 and ordered the child support amount for 2009 to be increased to $530.37 per month.

I discern nothing in Emerson that would preclude the result reached by the trial court here. Rather, I think it is a fair reading of the record that the trial court concluded that when the primary residence of the child changed in June 2007, from a legal standpoint, mother became the obligor for child support purposes at that point in time. See id. at 925-26. However, the trial court also concluded that, based on equitable considerations, it was within its discretion to determine that mother's monetary support obligation would be calculated at zero from June 2007 until the date of father's motion, when she would begin paying child support in the amounts referenced above. And, indeed, the court's findings support this determination, including mother's significant potential income level, father's substantial income, the fact that father waited "a very long time" to request child support, and the fact that full support for the child never lapsed. See § 14-10-115@8)(e), C.R.S.2009 ("Courts may deviate from the guidelines and schedule of basic child support obligations where its application would be inequitable, unjust, or inappropriate."); In re Marriage of Haddad, 93 P.3d 617, 620 (Colo.App.2004) ("Special considerations of an equitable nature arise in the domestic relations field. District courts necessarily are vested with discretion to achieve fair results under a wide variety of cireumstances, attending always to the interests of the children." (citation omitted)).

In sum, the record here shows that the trial court did not abuse its very broad discretion to reach a fair and equitable result regarding mother's obligation to pay child support even under the division's reasoning in Emerson.

Accordingly, I agree with the majority that the trial court's order should be affirmed. I reach that outcome, however, without revisiting and disagreeing with the analysis in Emerson. Nonetheless, because two divisions of this court have arrived at conflicting conclusions regarding the interpretation of section 14-10-122(5), it would now be appropriate for either the General Assembly or our supreme court to resolve the conflict.