Limited Authority to Deviate from Colorado Child Support Statute
In an unpublished decision, the Court of Appeals reversed a trial court which deviated downward from the Colorado Child Support Guidelines without making specific findings as to the reasons.
While Colorado’s child support guidelines are not written in stone, the statute does create a pretty strong rebuttable presumption in favor of applying state’s support formula, authorizing limited discretion to deviate from the guidelines:
“A court may deviate from the guidelines and schedule of basic child support obligations where its application would be inequitable, unjust, or inappropriate. Any such deviation shall be accompanied by written or oral findings by the court specifying the reasons for the deviation and the presumed amount under the guidelines and schedule of basic child support obligations without a deviation. These reasons may include, but are not limited to, instances where one of the parents spends substantially more time with the child than is reflected by a straight calculation of overnights, the extraordinary medical expenses incurred for treatment of either parent or a current spouse, extraordinary costs associated with parenting time, the gross disparity in income between the parents, the ownership by a parent of a substantial nonincome producing asset, consistent overtime not considered in gross income under sub-subparagraph (C) of subparagraph (II) of paragraph (a) of subsection (5) of this section, or income from employment that is in addition to a full-time job or that results in the employment of the obligor more than forty hours per week or more than what would otherwise be considered to be full-time employment.”C.R.S. 14-10-115(8)(e) (Emphasis added).
That quoted section from the statute is lengthy, but in essence, it provides a non-exclusive list of reasons a court may deviate from the Colorado child support guidelines, but, more important, in the bolded language it requires the reasons for any deviation to be specified in writing.
The reality is that deviations from the Colorado child support statute are rare – while we at Graham.Law have seen them a few times at temporary orders, I’m at a loss to recall the last time I saw a court deviate from the Colorado child support formula at final orders or beyond, other than when a parent’s overnights are not an accurate reflection of the time he actually spends with the children.
So it’s unsurprising that the Court of Appeals will scrutinize pretty closely the reasons why a court deviates from the Colorado child support statute, and if none is provided, reverses the decision.
Deviation from Colorado Child Support Guidelines Requires Specific Findings
In Wilczek, the trial court found that the father’s gross monthly income was $7150, while the mother earned $5130/mo. The court then calculated the formula Colorado child support to be $799/mo, but only awarded $600/mo in support, saying it was “going to deviate from that calculation”, without providing any explanation.
The Court was not necessarily saying the district court judge was wrong to deviate, just that without specific written findings, deviating from the Colorado child support statute was inappropriate:
“Father attempts to salvage the court’s deviation by pointing to findings the court made in its determination of maintenance, including mother’s income and her economic resources. But those findings, which showed that mother’s financial circumstances were relatively similar to father’s circumstances, neither showed that the guideline amount was inequitable, unjust, or inappropriate, nor explained the court’s reasons for reducing father’s support obligation.
Because we are unable to discern the basis for the district court’s downward deviation from the child support guideline, we reverse the court’s child support determination and remand the case to the district court for further findings.”Wilczek, ¶¶ 47-48.
The takeaway? As a regular reader of this blog will discern, one big reason why the court of appeals overturns trial court orders is not necessarily disagreement with the order, but the failure to make specific findings when doing something “unusual”, such as a grossly disparate property division, or not following the (less binding) alimony guidelines. So a judge deviating from the Colorado child support guidelines really needs to put specific reasons for that on the record.
The case was also interesting for what the mother claimed was a pretty significant shenanigan by the father’s family. He worked for the family business, and in 2011, signed promissory notes totaling almost $1.4m in return for a 10% interest, pledging those company shares as collateral. In 2018, shortly before dissolution, his family foreclosed on his shares for non-payment.
There was conflicting evidence whether the father conspired with his family to remove the company shares from the marital estate, and the mother wanted the value of the shares included in the marital estate. While the court acknowledged that the circumstances surrounding the foreclosure by his own family were “suspicious”, that did not rise to the level of dissipation required to find economic fault. And the Court of Appeals upheld that finding as being within the discretion of the child support – as suspicious as it was (your own family waiting 7 years, and then suddenly foreclosing to seize your company shares just before a divorce is initiated??)
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