author: Opinion by JUDGE LIPINSKY

text:
    IN RE the MARRIAGE OF Tiffany Rose JANUARY, Appellee, and Jeffrey Forrest January, Appellant.
    Court of Appeals No. 17CA2416
    Colorado Court of Appeals, Division IV.
    Announced June 13, 2019
    Epstein Patierno LLP, Courtney J. Allen, Denver, Colorado, for Appellee
    The Locke Law Firm PC, Teresa D. Locke, Denver, Colorado, for Appellant
   Opinion by JUDGE LIPINSKY

¶1 Following the entry of final orders in her dissolution of marriage case, Tiffany Rose January (mother) sought remedial sanctions against Jeffrey Forrest January (father) for, among other things, not paying his share of their daughter's tutoring expenses. The magistrate found father in remedial contempt and imposed sanctions consisting of the tutoring expenses and mother's attorney fees incurred in connection with the contempt proceeding. Father objected to the amount of attorney fees awarded to mother. The magistrate has yet to rule on the objection.

¶2 The district court agreed with and adopted the magistrate's order awarding the tutoring expenses to mother. Father appeals the district court's ruling.

¶3 In light of the procedural posture of father's appeal, we consider whether a contempt order is final and appealable during the pendency of an objection to the amount of attorney fees ordered "in connection with" the remedial contempt sanction. Because we conclude the answer is no, we dismiss father's appeal, without prejudice.

¶4 In doing so, we respectfully disagree with the holding in Madison Capital Co. v. Star Acquisition VIII , 214 P.3d 557, 560 (Colo. App. 2009), and side with the line of authority holding that "reasonable attorney's fees in connection with the contempt proceeding" are a component of remedial sanctions under C.R.C.P. 107(d)(2). See People v. Shell , 148 P.3d 162, 178 (Colo. 2006) ; Aspen Springs Metro. Dist. v. Keno , 2015 COA 97, ¶ 34, 369 P.3d 716, 724 ; In re Marriage of Webb , 284 P.3d 107, 109 (Colo. App. 2011) ; In re Lopez , 109 P.3d 1021, 1024 (Colo. App. 2004) ; Eichhorn v. Kelley , 56 P.3d 124, 126 (Colo. App. 2002) ; Sec. Inv'r Prot. Corp. v. First Entm't Holding Corp. , 36 P.3d 175, 178 (Colo. App. 2001) ; In re Marriage of Nussbeck , 949 P.2d 73, 75 (Colo. App. 1997), rev'd on other grounds , 974 P.2d 493 (Colo. 1999).

I. Background

¶5 The permanent orders, as relevant to this appeal, require the parties to share the tutoring expenses in proportion to their incomes. After father refused to pay his share of the daughter's fifth grade tutoring costs, mother moved under C.R.C.P. 107 for remedial contempt sanctions in the form of the tutoring expenses and the attorney fees she incurred in obtaining the sanctions. See C.R.C.P. 107(d)(2) ("In all cases of indirect contempt where remedial sanctions are sought, the nature of the sanctions and remedies that may be imposed shall be described in the motion or citation."). The parties agree that the attorney fees "are based on the contempt, and [father's] ability to pay the purge of the contempt."

¶6 Following an evidentiary hearing, the magistrate found father in contempt. As a remedial sanction, the magistrate entered a judgment against father in the amount of $ 1,530 for his unpaid share of the daughter's tutoring expenses and $ 11,630 in attorney fees to mother. See C.R.C.P. 107(d)(2) (providing that a court may assess "[c]osts and reasonable attorney's fees in connection with [a] contempt proceeding ... in the discretion of the court"). The magistrate gave father an opportunity to challenge the reasonableness of mother's attorney fees.

¶7 Father objected to the award of attorney fees and requested a hearing under C.R.C.P. 121, section 1-22(2)(c). See Roberts v. Adams , 47 P.3d 690, 700 (Colo. App. 2001)

(notwithstanding the discretionary language in C.R.C.P. 121, section 1-22(2)(c), a party who requests a timely hearing on the reasonableness of attorney fees is entitled to a hearing). The magistrate has not yet set a hearing or ruled on father's objection.

¶8 Meanwhile, father petitioned for district court review of the magistrate's contempt order. The district court adopted the magistrate's order awarding the tutoring expenses to mother. Father appeals the district court's decision.

¶9 While this appeal was pending, a motions division of this court directed the parties to show cause why father's appeal should not be dismissed, without prejudice, for lack of a final, appealable judgment, given that the magistrate has yet to rule on father's objection. After the parties responded, the division deferred ruling to the merits division.

II. Finality

¶10 We address whether the district court's order adopting the magistrate's contempt order is final and appealable, even though the magistrate has yet to rule on father's objection to the amount of attorney fees awarded to mother. See Allison v. Engel , 2017 COA 43, ¶ 22, 395 P.3d 1217, 1222 ("We must determine independently our jurisdiction over an appeal, nostra sponte if necessary.").

¶11 "A 'final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Baldwin v. Bright Mortg. Co. , 757 P.2d 1072, 1073 (Colo. 1988) (quoting Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 199, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) ) (determining that district court order dismissing defendants' third-party claim and awarding attorney fees against them for bringing a frivolous action under section 13-17-102, C.R.S. 2018, was final and appealable even though the district court had reserved the amount of attorney fees for later determination). But see Axtell v. Park Sch. Dist. R-3 , 962 P.2d 319, 321 (Colo. App. 1998) (deciding that district court order granting attorney fees under section 13-17-102 was not final and appealable because the attorney fee amount had not yet been determined).

¶12 Under C.R.M. 7(a)(3), only a final magistrate's order is reviewable. "For the purposes of appeal, an order deciding the issue of contempt and sanctions shall be final." C.R.C.P. 107(f). Thus, a contempt order is final once the district court adjudicates the contempt issue and imposes a "complete" sanction. See Sec. Inv'r Prot. Corp. , 36 P.3d at 178 (By its plain language, C.R.C.P. 107(f) "requires that, to constitute a final order, the determination of sanctions must be completed.").

¶13 As father points out, the holding in Madison Capital is almost directly on point. There, the division held that a contempt order and a later attorney fee order "in connection with [the] violation of the Order" were separately appealable. Madison Capital , 214 P.3d at 559-60. Relying on Baldwin , the division reasoned that "[a] final judgment on the merits is appealable regardless of any unresolved issue of attorney fees." Id. at 560. The division dismissed as untimely the portion of the appeal concerning the underlying contempt order, but considered the appeal of the later attorney fee order. See id. We note that, unlike the present case, the contemnor in Madison Capital did not challenge the reasonableness of the attorney fee award. See id. at 559.

¶14 We disagree with the division's holding in Madison Capital . See People v. Abu-Nantambu-El , 2017 COA 154, ¶ 88, --- P.3d ----, ---- ("[O]ne division of the court of appeals is not bound by a decision of another division.") (cert. granted Oct. 15, 2018).

¶15 As other divisions of this court have concluded, reasonable attorney fees are a component of remedial sanctions under C.R.C.P. 107(d)(2). See Webb , 284 P.3d at 109 ("We first conclude that attorney fees can be awarded only as a component of remedial sanctions."); Eichhorn , 56 P.3d at 126 (" C.R.C.P. 107(d)(2) specifically allows an award of attorney fees as a remedial sanction ...."); see also Aspen Springs Metro. Dist ., ¶ 34, 369 P.3d at 724 (holding that remedial sanctions, such as the assessment of costs and attorney fees, cannot be imposed against a defendant whose violation of a court order had occurred in the past and, therefore, he could no longer purge his contempt); Lopez , 109 P.3d at 1024 ("Although attorney fees may be awarded in connection with remedial contempt, they may not be imposed as part of a punitive contempt sanction."); Sec. Inv'r Prot. Corp. , 36 P.3d at 178 ("[O]ther than costs and reasonable attorney fees, [under] C.R.C.P. 107(d)(2), a trial court is without authority to require, as a remedial sanction, ... payments ... that do not force compliance with or performance of a court order."); Nussbeck , 949 P.2d at 75 (a remedial order is "the predicate for the award of attorney fees"); cf. Shell , 148 P.3d at 178 (" Rule 107(d)(2) permits the assessment of costs and attorneys' fees where remedial sanctions are imposed against a contemnor.").

¶16 We agree with those cases' conclusion that C.R.C.P. 107(d)(2) allows a district court to award reasonable attorney fees as a remedial sanction. (Father does not contest that the attorney fee award is part of the remedial sanction.) Therefore, a contempt order is not final until the attorney fees portion of the remedial sanction has been completely resolved. See C.R.C.P. 107(f).

¶17 In sum, father appealed too soon because the magistrate has not completed imposing remedial contempt sanctions against him. Accordingly, we must dismiss his appeal, without prejudice, for lack of a final order. See C.R.C.P. 107(f) ; Sec. Inv'r Prot. Corp. , 36 P.3d at 178.

III. Appellate Attorney Fees

¶18 Given our conclusion that we lack jurisdiction to consider father's appeal, we need not address mother's request for recovery of her appellate attorney fees and costs under C.A.R. 39.1 and section 13-17-102. See In re Marriage of Barnes , 907 P.2d 679, 685 (Colo. App. 1995) (remanding for further proceedings where the record was insufficient to allow appellate court to determine whether the court erred in denying the husband's section 13-17-102 attorney fees request). (Mother's answer brief cites to the previous number of the rule, C.A.R. 39.5, which pre-dates her request for appellate attorney fees.) Mother's attorney fees request under C.A.R. 39.1 and section 13-17-102 will be ripe for adjudication once the district court enters a final, appealable order setting the full amount of the remedial sanction.

IV. Conclusion

¶19 We dismiss the appeal, without prejudice, for lack of a final order.

JUDGE ROMÁN and JUDGE J. JONES concur.


source: Caselaw Access Project

author: Opinion by JUDGE NAVARRO

license: Public Domain

text:
    IN RE the MARRIAGE OF Joseph Cody STOCKWELL, Appellee, and Jennifer Lynn DEES, Appellant.
    Court of Appeals No. 17CA1482
    Colorado Court of Appeals, Division VI.
    Announced June 27, 2019
    Joseph Cody Stockwell, Pro Se
    Jennifer Lynn Dees, Pro Se
   Opinion by JUDGE NAVARRO

¶ 1 In this proceeding concerning the allocation of parental responsibilities (APR) for L.D-S., Jennifer Lynn Dees, the child's mother, appeals the district court's order denying her motion to vacate a 2013 order giving majority parenting time to Joseph Cody Stockwell, the child's legal but not biological father. Dees contends that the court erred because it issued the APR order without first inquiring into the child's possible Indian heritage as required by the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 to 1963 (2018). Dees is right. In agreeing with her, we clarify that (1) a legal father under Colorado law is not necessarily a "parent" for purposes of ICWA and (2) an APR to a legal father who does not qualify as a "parent" under ICWA is a "child custody proceeding" under ICWA.

¶ 2 Because the APR to Stockwell here constituted a child custody proceeding and the court did not comply with ICWA, we reverse the order denying Dees's motion and remand for further proceedings.

I. Factual and Procedural History

¶ 3 L.D-S. was born during the marriage between Dees and Stockwell. That marriage has since been dissolved. Although Stockwell is not L.D-S.'s biological father, he was declared his legal father under the paternity presumption in section 19-4-105(1)(a), C.R.S. 2018. On October 2013, the district court entered an APR order that named Stockwell the primary residential parent for L.D-S. and limited Dees's parenting time to weekends. Over the next few years, the court expanded Dees's parenting time to include holidays, school breaks, and two weeks of summer vacation.

¶ 4 In 2015, Dees asked the court to set aside the October 2013 APR order. She alleged that she had obtained a DNA test result from L.D-S.'s biological father that would rebut Stockwell's paternity presumption. A magistrate denied her motion, and the district court adopted the magistrate's order.

¶ 5 In 2017, Dees filed a pro se motion titled "Motion for 25 U.S.C. 1914 'ICWA' Violations," arguing that federal law required L.D-S. to be returned to her care (hereinafter, ICWA motion). She attached to the ICWA motion various orders (including the October 2013 APR order) and a letter asking the district court to invalidate all parenting orders, return L.D-S. to her custody, and comply with ICWA. She asserted in her letter that L.D-S. was "Choctaw and Wailaki on my side only" and that the APR to Stockwell was a "foster care placement." The court denied the motion as untimely.

II. ICWA Compliance

A. Basic Principles

¶ 6 ICWA is intended to protect and preserve Indian tribes and their resources, and to protect Indian children who are members of or are eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3) (2018) ; People in Interest of M.V. , 2018 COA 163, ¶ 10, 432 P.3d 628. ICWA recognizes that Indian tribes have a separate interest in Indian children that is equivalent to, but distinct from, parental interests. M.V. , ¶ 10. Thus, in a proceeding in which ICWA may apply, tribes must have a meaningful opportunity to participate in determining whether a child who is a subject of the proceeding is an Indian child and to be heard on the issue of the applicability of ICWA. B.H. v. People in Interest of X.H. , 138 P.3d 299, 303 (Colo. 2006).

¶ 7 ICWA applies when an Indian child is the subject of a "child custody proceeding," which includes any action that could culminate in "foster care placement." 25 U.S.C. § 1903(1) (2018) ; 25 C.F.R. § 23.2 (2018) ; People in Interest of K.G. , 2017 COA 153, ¶ 14, --- P.3d ----. An "Indian child" is any unmarried person who is under age eighteen and is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Under ICWA, a tribe is entitled to intervene in child custody proceedings involving its children, and a tribal court is the preferred jurisdiction for such proceedings. K.G. , ¶ 6.

¶ 8 At the start of every emergency, voluntary, or involuntary child custody proceeding, the district court must ask each participant whether he or she knows or has reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a) (2018); K.G. , ¶ 21. All responses should be on the record. 25 C.F.R. § 23.107(a).

¶ 9 It is "critically important" that the court inquire into whether a child is an Indian child because, if an inquiry is not made, "a child-custody proceeding may not comply with ICWA and thus may deny ICWA protections to Indian children and their families." Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act 11 (Dec. 2016), https://perma.cc/3TCH-8HQM; see also People in Interest of C.A. , 2017 COA 135, ¶ 17, 417 P.3d 909.

¶ 10 If the court has reason to know that the child is an Indian child but has insufficient evidence to make a determination, the court must treat the child as an Indian child unless and until the court determines on the record that the child does not meet the definition of an Indian child. 25 C.F.R. § 23.107(b)(2). A court has reason to know a child is an Indian child if, among other reasons not relevant here, any participant in the proceeding informs the court that (1) the child is an Indian child or (2) the participant has discovered information indicating that the child is an Indian child. 25 C.F.R. § 23.107(c)(1)-(2); People in Interest of L.L. , 2017 COA 38, ¶ 21, 395 P.3d 1209.

¶ 11 Whether ICWA's provisions were satisfied is a question of law that we review de novo. L.L. , ¶ 46.

B. Timeliness of Dees's ICWA Motion

¶ 12 We first address the district court's reason for denial. The court noted that Dees's ICWA motion sought to reconsider a September 3, 2013, order. (In fact, the motion also sought reconsideration of the October 2013 APR order.) The court cited C.R.C.P. 121, section 1-15(11), which provides that motions to reconsider interlocutory orders shall be filed within fourteen days of the order unless the moving party shows good cause for not filing within that time. Finding that Dees had filed the ICWA motion 1382 days after the September 2013 order and had not shown good cause for the delay, the court denied the motion as untimely.

¶ 13 According to ICWA, however, an Indian child who is the subject of an action for foster care placement or termination of parental rights, any parent or Indian custodian from whose custody such child was removed , and the Indian child's tribe may petition a court of competent jurisdiction to invalidate such action upon a showing that the action violated ICWA provisions. 25 U.S.C. § 1914 (2018). ICWA places no time limit on such a petition. Moreover, barring a parent's ICWA claim as untimely or waived under state law would contradict our supreme court's recognition that ICWA is also intended to protect the tribe, which was not at fault for the timing of the ICWA claim and whose interest may have been harmed. See B.H. , 138 P.3d at 304 ("Because the protection of a separate tribal interest is at the core of the ICWA, otherwise sufficiently reliable information cannot be overcome by the statements, actions, or waiver of a parent, or disregarded as untimely.") (citations omitted); see also Mississippi Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 49, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) ("Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians.");

cf. People in Interest of D.B. , 2017 COA 139, ¶ 8, 414 P.3d 46 (ICWA compliance claims may be raised for the first time on appeal).

¶ 14 Finally, as we will explain, the APR order here constituted a foster care placement. Therefore, the district court erred in denying Dees's ICWA motion as untimely. In addition, because the record does not show that the court complied with ICWA, we reverse the order denying the ICWA motion and remand for further proceedings as discussed below.

C. Was the APR a Child Custody Proceeding?

¶ 15 Dees argues that the district court failed to comply with ICWA before issuing the October 2013 APR order. Stockwell responds that ICWA is inapplicable because he and Dees are parents of L.D-S. Stockwell is correct that ICWA does not apply to an award of custody to one of the parents, including in a divorce proceeding. 25 C.F.R. § 23.103(b)(3) (2018) ; see also In re J.B. , 178 Cal.App.4th 751, 100 Cal. Rptr. 3d 679, 682 (2009) (a child custody proceeding does not include a proceeding in which a child is removed from one parent and placed with the other because placement with a parent is not foster care). But whether Stockwell qualifies as a parent for purposes of ICWA requires a closer look.

¶ 16 As relevant here, a "parent" under ICWA is defined as "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom." 25 U.S.C. § 1903(9). By defining this critical term, Congress has expressed its intention that the word is not subject to definition by state courts. Cf. Holyfield , 490 U.S. at 45, 109 S.Ct. 1597 ("Under these circumstances it is most improbable that Congress would have intended to leave the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law.").

¶ 17 As noted, Stockwell is L.D-S.'s legal father. Based on this status, he enjoys all the rights and responsibilities of legal fatherhood under state law. See N.A.H. v. S.L.S. , 9 P.3d 354, 359 (Colo. 2000) ; In re Parental Responsibilities Concerning A.D. , 240 P.3d 488, 492 (Colo. App. 2010). But Stockwell is neither L.D-S.'s biological parent nor an Indian person who has adopted the child. So, Stockwell is not a parent as defined by ICWA.

¶ 18 Because Stockwell is not L.D-S.'s parent under ICWA, we consider whether the APR to Stockwell was a "foster care placement," which is defined as

any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated[.]

25 U.S.C. § 1903(1)(i). Unlike "parent," the terms "foster home," "institution," "guardian," or "conservator" are not defined by ICWA. We therefore look to state law and the well-accepted meanings of the terms. See Holyfield , 490 U.S. at 47, 109 S.Ct. 1597.

¶ 19 A "guardian" has the duties and powers of a parent regarding a minor ward's support, care, education, health, and welfare. See §§ 15-14-207(1), - 208(1), - 314(1), C.R.S. 2018. Stockwell has primary parenting time with L.D-S., sole decision-making for the child's educational needs, and joint decision-making for other child-related issues. These responsibilities place Stockwell squarely within the role of L.D-S.'s "guardian"; hence, the APR to Stockwell was a foster care placement under ICWA. See K.G. , ¶ 16 (recognizing that involuntary APR to aunt and uncle constituted placement with guardians).

¶ 20 A foster care placement, which here takes the form of an APR to a person who is not a parent under ICWA, is a child custody proceeding under ICWA because the parent cannot have the child returned upon demand but must instead overcome procedural and substantive barriers to regain custody and control of the child. See id. at ¶¶ 14, 17-18 ; see also 25 C.F.R. § 23.2 ("Upon demand means that the parent or Indian custodian can regain custody simply upon verbal request, without any formalities or contingencies.").

¶ 21 In sum, the APR to Stockwell was a child custody proceeding for purposes of ICWA. The district court, however, did not inquire into whether L.D-S. was an Indian child. That was error requiring a remand for further proceedings. See 25 U.S.C. § 1914.

III. Remand Directions

¶ 22 On remand, the district court should procure the appearance, if possible, of Dees and Stockwell so that it may make inquiries on the record. See 25 C.F.R. § 23.107. If those inquiries reveal that the court knows or has reason to know that L.D-S. is an Indian child, the court must comply with ICWA's notice provisions. See § 25 U.S.C. § 1912(a) (2018).

¶ 23 We recognize that a county department of human services or the petitioning party typically bears the burden to send notice to a tribe. See 25 C.F.R. 23.111(a)(1) (2018); § 19-1-126(1)(b), C.R.S. 2018; L.L. , ¶¶ 24, 33-35. But, because no department is involved here and both parties are pro se, the district court shall bear the burden to send any required notices. See People in Interest of I.B.-R. , 2018 COA 75, ¶ 6, 439 P.3d 38 (federal regulations and guidelines implementing ICWA impose a duty of inquiry and notice on trial courts); cf. 25 C.F.R. § 23.111(a)(1) (court must ensure that proper notices are sent).

¶ 24 In particular, the court must notify any relevant tribe, by registered mail with return receipt, of the pending child custody proceeding and its right to intervene. L.L. , ¶¶ 34-35. The court should provide sufficient information for the tribe to determine whether L.D-S. is a member or eligible for membership. Id. at ¶ 37. The notice must include:

(1) The child's name, birthdate, and birthplace;
(2) All names known (including maiden, married, and former names or aliases) of the parents, the parents' birthdates and birthplaces, and Tribal enrollment numbers if known;
(3) If known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents; [and]
(4) The name of each Indian Tribe in which the child is a member (or may be eligible for membership if a biological parent is a member)[.]

25 C.F.R. § 23.111(d); L.L. , ¶ 37.

¶ 25 The notice must also include a copy of the petition, complaint, or other document by which the child custody proceeding was initiated and, if a hearing has been scheduled, information on the date, time, and location of the hearing, and various statements related to the tribe's right to intervene and petition for a transfer. 25 C.F.R. § 23.111(d)(5)-(6); L.L. , ¶ 38. The court must afford the tribe a reasonable amount of time to respond to notices sent. See 25 U.S.C. § 1912(a). Section 1912(a) provides that no foster care placement hearing shall be held until at least ten days after the tribe's receipt of notice. This section further provides that a tribe shall be granted an additional twenty days to prepare for such proceeding if the tribe so requests. Id.

¶ 26 After receiving responses from the tribe, or after the expiration of the time permitted for response by section 1912(a) or a reasonable additional time as permitted by the court, the court shall enter factual findings and legal conclusions regarding the application of ICWA. If the court determines that L.D-S. is an Indian child, then the court must vacate the October 2013 APR order (and its later modifications) and proceed in accordance with ICWA. See L.L. , ¶ 56.

¶ 27 But if neither party claims that he or she is affiliated with a tribe, that L.D-S. is an Indian child, or that he or she has discovered information indicating that L.D-S. is an Indian child, the court may find on the record that it has no reason to know that L.D-S. is an Indian child. Or, if, after notices to tribes are sent, no tribe determines that L.D-S. is a member or that L.D-S. is eligible for membership and Dees is a member, the court may find on the record that L.D-S. is not an Indian child. In either scenario, the October 2013 APR order (and its modifications) shall stand, subject to the parties' right to appeal the court's ICWA findings. See id.

IV. Conclusion

¶ 28 We reverse the order denying Dees's ICWA motion and remand for the district court to comply with ICWA's provisions as discussed herein.

¶ 29 The current parenting time order will remain in place pending the district court's compliance with this opinion and ICWA.

JUDGE RICHMAN and JUDGE WELLING concur.

      Because we conclude that Stockwell is a guardian, we need not consider whether he qualifies as a "foster home," an "institution," or a "conservator."


author: Opinion by JUDGE HARRIS

text:
    IN RE the MARRIAGE OF Michelle Lea ALVIS, Appellee, and Norman Foster Darrell Alvis, Appellant.
    Court of Appeals No. 18CA0251
    Colorado Court of Appeals, Division V.
    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
   Opinion by JUDGE HARRIS

¶ 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.

¶ 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 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, 282 P.3d 506. 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, 404 P.3d 1251. "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.

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), 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, --- P.3d ----.

¶ 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 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 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 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 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. 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. 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 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.

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, --- P.3d ----.

IV. Conclusion

¶ 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.

      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.


text:
    IN RE the MARRIAGE OF Carl Joseph GIBBS, Appellant, and Joellen Elizabeth Gibbs, Appellee.
    Court of Appeals No. 18CA0250
    Colorado Court of Appeals, Division IV.
    Announced July 3, 2019
    Thomas & Associates Law Firm LLC, Joseph G. Williams, Greenwood Village, Colorado, for Appellant
    Alison Ruttenberg, Louisville, Colorado; Vigil Law Offices, P.C., Frank G. Vigil, Lakewood, Colorado, for Appellee
   Opinion by JUDGE LIPINSKY

¶ 1 Three years after the district court entered permanent orders in his dissolution of marriage case, husband, Carl Joseph Gibbs, sought to modify or terminate his maintenance obligation to wife, Joellen Elizabeth Gibbs, under section 14-10-122(1)(a), C.R.S. 2018. Husband argued that his alleged loss of income resulting from a shoulder injury he incurred three years following the entry of the permanent orders constituted a substantial and continuing change in his circumstances that warranted a decrease in his maintenance payments.

¶ 2 The district court denied husband's motion based on its calculation of husband's monthly income, including imputed rental income from husband's primary residence.

¶ 3 We affirm the portion of the decision addressing husband's self-employment income and reverse the portion imputing rental income to him because husband never used the residence as an income-producing asset. We remand to redetermine husband's maintenance obligation without considering imputed rental income.

I. Background

¶ 4 The parties' marriage ended in 2013. In the permanent orders, the district court awarded wife $1,850 in monthly maintenance until the death of either party, the remarriage or civil union of wife, or further court order.

¶ 5 In September 2016, husband moved to modify or terminate his maintenance obligation. He alleged that, as a result of a severe shoulder injury, he was no longer able to perform labor-oriented work. He further alleged that he had been diagnosed with stenosis, which would require surgery and affect his ability to work for the rest of his life.

¶ 6 Following a hearing at which husband, wife, and a physician testified, the court found that husband had not shown a substantial and continuing change in his circumstances and, therefore, denied husband's motion.

II. Husband's Income

¶ 7 Husband contends that the district court abused its discretion in determining that his income was $6,500 per month for purposes of calculating maintenance.

A. Standard of Review

¶ 8 We review a district court's order continuing or modifying maintenance for an abuse of discretion. In re Marriage of Kann , 2017 COA 94, ¶ 75, --- P.3d ----, ----. A district court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair. In re Marriage of Gromicko , 2017 CO 1, ¶ 18, 387 P.3d 58, 61.

¶ 9 We defer to the district court's factual findings unless they are clearly erroneous. In re Marriage of Connerton , 260 P.3d 62, 66 (Colo. App. 2010). The district court must make sufficiently explicit findings of fact to give the appellate court a clear understanding of the basis of its order. In re Marriage of Rozzi , 190 P.3d 815, 822 (Colo. App. 2008).

B. Self-Employment Income

¶ 10 Husband argues that the district court miscalculated his self-employment income because it did not accurately calculate the ordinary and necessary business expenses that needed to be deducted from his gross receipts, as required by section 14-10-114(8)(c)(III)(A), C.R.S. 2018. We disagree.

¶ 11 In applying the maintenance guidelines, an individual's gross income from self-employment is calculated by deducting from gross receipts the ordinary and necessary expenses required to produce income. Id. Ordinary and necessary expenses do not include business expenses that the district court finds are "inappropriate for determining gross income." § 14-10-114(8)(c)(III)(B). A self-employed party's gross income includes expense reimbursements or in-kind payments received in the course of self-employment if they are significant and reduce personal living expenses. § 14-10-114(8)(c)(I)(X).

¶ 12 The record reflects that, when the district court entered the permanent orders, husband performed the manual labor of a framer for his own construction company. As a result of husband's shoulder injury and pain from stenosis, he transitioned to a supervisory position at his girlfriend's construction company.

¶ 13 The court found that husband earned a $5,000 monthly salary as a supervisor. The court acknowledged that husband was required to use a portion of his salary to pay for certain business expenses, including a cell phone, general liability insurance, and auto insurance. However, the court found that these business expenses were offset by his ability to use a company vehicle and the cell phone for personal purposes.

¶ 14 The record supports the district court's finding that husband's business expenses were offset by the value of the vehicle and cell phone. Husband testified that his business expenses for his cell phone, general liability insurance, auto insurance, and loan payment totaled $1,057 per month. He also testified that he was provided the vehicle at no cost to himself and was allowed to use the vehicle for personal use. Husband estimated that the monthly loan payment on his vehicle was around $800 and that he spent around $300 per month in fuel. Husband further said that his construction company paid his cell phone bills. His monthly cell phone bill was $123.

¶ 15 In finding that husband's business expenses were offset by the in-kind payments he received from his girlfriend's construction company, the court essentially added those payments to his salary, see § 14-10-114(8)(c)(I)(X) ; see also In re Marriage of Long , 921 P.2d 67, 69 (Colo. App. 1996) (noting that in-kind payments might include a company car, free housing, or reimbursed meals), and then deducted his business expenses from his salary, see § 14-10-114(8)(c)(III)(A). Because his monthly business expenses ($1,057) were nearly the same as the monthly in-kind payments for the vehicle, fuel, and cell phone ($1,223), we discern no abuse of discretion in the district court's calculation of husband's self-employment income.

C. Imputed Rental Income

¶ 16 Husband argues that the district court erred in imputing $1,500 per month in rental income to him. We agree.

¶ 17 The record reflects that husband continued living in the marital residence following the dissolution of the parties' marriage. His monthly mortgage payment on the five-bedroom, 2,500-square-foot home was $2,552 at the time of the modification hearing. Husband lived in the home with his girlfriend and her three children. They lived there together as a family. Husband testified that he paid the mortgage and, although his girlfriend did not pay rent, she paid for the utilities and groceries.

¶ 18 The district court found that this arrangement was not a fair market exchange because husband's portion of the utilities and groceries was only a small fraction of these costs. In addition, the district court imputed to husband rental income from the house, noting that husband "owns a large house - the former marital residence - that he could use to generate rental income. ... [T]he property ... is much larger than he needs for himself."

¶ 19 The district court "estimate[d] that fair rental value would be at least $1,500 per month for a house of that size." It therefore concluded that husband was "essentially receiving at least $1,500 in income that he is gifting to [his girlfriend] and her children." The district court found that "[t]he fact that [husband] chooses to forgo this income from an asset should not be used to penalize [wife]." The district court added the $1,500 in imputed rental income to husband's $5,000 monthly salary for a total income of $6,500 per month.

¶ 20 For purposes of calculating maintenance, potential income is properly imputed to a party who is voluntarily unemployed or underemployed. See § 14-10-114(8)(c)(IV) ; see also People v. Martinez , 70 P.3d 474, 476-81 (Colo. 2003) (discussing imputing income to an unemployed or underemployed parent for purposes of calculating child support). Unrealized income from an investment asset that earns interest or distributes dividends is also properly imputed to a party. See In re Marriage of Bregar , 952 P.2d 783, 786-87 (Colo. App. 1997) (interest imputed on portion of capital gain from stock sale used to reduce margin account debt); In re Marriage of Laughlin , 932 P.2d 858, 861-62 (Colo. App. 1997) (interest imputed on portion of capital gain from sale of business used to construct addition to home and to pay mortgages); In re Marriage of Tessmer , 903 P.2d 1194, 1196 (Colo. App. 1995) (interest and dividends on a retirement account were income, although not withdrawn and subject to penalty if withdrawn); In re Marriage of Armstrong , 831 P.2d 501, 503-04 (Colo. App. 1992) (income earned on portion of inheritance imputed to the father).

¶ 21 But no Colorado statute addresses whether potential rental income can be imputed to a party for purposes of calculating maintenance. Nor does any Colorado statute address whether potential rental income from a party's primary residence that has never before earned rental income can be imputed to that party for purposes of calculating maintenance. We answer this second, and more narrow, question "no."

¶ 22 No evidence in the record shows that the residence ever produced income. There is also no evidence indicating that husband was acting in bad faith by staying in the residence to inflate his monthly expenses and avoid paying maintenance to wife. By imputing rental income to husband, the court effectively recharacterized husband's home from a primary residence to an income-producing rental property. This was, in our view, an abuse of discretion.

¶ 23 In In re Marriage of Mugge , 66 P.3d 207 (Colo. App. 2003), a division of this court considered a parent's unrealized income in the form of an undistributed retirement account. Mugge held that it was improper to "consider unrealized income for child support purposes solely because a parent could liquidate an asset or change its character into an asset capable of producing income." Id. at 212. Like the father's undistributed retirement account in Mugge , husband's primary residence in this case would not generate income unless its character were changed. Id. Moreover, we are unaware of any case holding, in effect, that a party in a dissolution of marriage case may be compelled to relocate to a smaller residence or to rent a portion of his or her home.

¶ 24 For these reasons, we conclude that, where a party has not historically earned rental income from his or her primary residence, potential rental income from that asset cannot be imputed to the party for purposes of calculating maintenance. See id. at 213 (noting that several other statutory income categories expressly require payment to the recipient).

¶ 25 We therefore remand this case to the district court to redetermine maintenance without imputing to husband potential rental income from his primary residence.

III. Husband's Argument that He Is Not Underemployed

¶ 26 We next turn to husband's contention that the district court erred in finding him underemployed.

¶ 27 The district court found that husband "has chosen a position that is comfortable and familiar to him, but there is no evidence that he has attempted to find the highest paying position possible given his experience." But the district court did not make findings regarding the amount of additional income husband could be earning. Thus, the district court did not impute any income to husband on grounds of underemployment, and we need not address husband's argument on this point.

IV. Husband's Other Arguments

¶ 28 Because the district court must redetermine maintenance based on the parties' circumstances at the time of that hearing, we need not address husband's arguments that he has experienced a substantial decrease in his income warranting a modification of maintenance and that he would be impoverished if the district court does not modify his maintenance obligation.

V. Conclusion

¶ 29 We affirm the portion of the district court's order calculating husband's self-employment income, reverse the portion imputing rental income to husband, and remand the case for redetermination of maintenance, as provided herein.

J. Jones and Martinez , JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2018.